text:
    Hardin County Telephone Company, Appellant, v. Omer Vinyard, Appellee.

      Vebdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Hardin county; the Hon. J. R. Cbeighton, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    Richard F. Taylor, for appellant.
    Oxford & Denton, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This suit involves a bill for telephone services, amounting to $19. The suit was instituted by appellant against appellee before a justice of the peace, and afterwards appealed to the Circuit Court of Hardin county, where a jury was waived and a trial had before the court, resulting in a finding in favor of appellee and a judgment against appellant for costs,

It appeared from the proofs that, appellee, Omer Vinyard, and his mother, Caroline Vinyard, on April 2, 1907, entered into a lease with "W. H. Hill, for certain farm land in Hardin county, for a term of some three months, which was afterwards extended to November 15, 1908. Appellee was an unmarried man, living with his father, mother and several other members of the family, all of whom moved upon the rented farm soon after the lease was made. After the family moved to the farm, a telephone was ordered to be put in the house they lived in, which remained there in use some 18 months, the rate charged being one dollar a month, and the bill includes the charges for those services and an additional dollar for messages claimed to have been sent over appellant’s lines after appellee left the farm.

It is claimed on the part of appellant that appellee ordered the telephone put in the house, and there was evidence tending to show this to be the fact. On the other hand appellee’s mother, Caroline Vinyard, testified that she and her daughter, Stella, had the “phone ” put in and that appellee had nothing to do with it. She also said that she at the time intended to pay the rent for the phone, but gave as an excuse for not doing so, that appellant owed her for some services rendered in connection with boarding one of appellant’s employes and for repairing the telephone line, which appellant refused to pay; that she had offered to settle with appellant and was still willing to settle with it and that her bill was $6.50. She also testified that appellant refused to settle with her daughter Stella, who was employed by appellant during a portion of the time in question, and kept $13 out of her wages. The daughter, Stella, testified that she and her mother and sister informed appellant’s agent they wanted a telephone and afterwards that she and her mother ordered the phone put in. The president of appellant company testified that the rent of the phone was charged to appellee, and the latter was so informed. The books of the company, however, were not introduced in evidence and Stella Vinyard swore that while she was in the employ of the company she saw the books and that the phone was not charged to appellee, but was to either Mr. or Mrs. Vinyard, the father and mother of appellee. Lydia Kirkham, another operator, also swore that she had seen the books and there was no phone charged against appellee that she knew of, but that she thought it was charged to his father, W. H. Vinyard. Mrs. Mary Fowler, who stated that she had charge of the books of the company, and also acted as treasurer for awhile, testified that appellee was not charged with the rent of the phone on the book that she had.

As bearing upon the question of the charge of one dollar for the use of the phone, there was evidence on the part of appellant that no one except the heads of families and children dependent upon them, were entitled to the use of a phone, while on behalf of appellee there was the evidence of two operators, one of whom was Stella Vinyard, tending to show that any member of the immediate family of a subscriber was entitled to the use of the phone.

It will be readily seen that the evidence in this case was conflicting, irreconcilable and somewhat evenly balanced. Such being the case we are not at liberty to disturb the findings upon the facts, of the court below. See authorities cited in Vol. 1 Ill. Cyc. Digest at page 455.

It is insisted however by appellant that as appellee and his mother rented the farm together, they were partners and that, therefore, even if the phone was ordered in by the mother, appellee was jointly liable with her for the debt. If it should be so conceded that the joint leasing constituted a partnership in the sense claimed by appellant, and that the ordering in of the phone could be considered an incident to the partnership, yet this suit is not against the partnership but against appellee alone, and no judgment could have been obtained against appellee in this suit,, for a partnership debt. The record as a whole does not present any sufficient reason for disturbing the finding of the court below, and its judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    People of the State of Illinois, Appellee, v. Illinois Central Railroad Company, Appellant.

      Railroads—when recovery of penalty for failure to repair crossing not sustained. It appearing from the special findings of the court that the railroad company had performed its obligations with respect to the crossing in question as to which the notice served upon it pursuant to statute applied, a judgment against it for the statutory penalty should be reversed.
    Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed:
    Opinion filed February 11, 1910.
    Kramer, Kramer & Campbell and C. H. Gr. Hsmeelder, for appellant; John Gr. Drehhan, of counsel.
    Wise & Keefe, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This suit was instituted before a justice of the peace, in the name of the People, to recover the penalty of $100 provided for by section 11 of the Act in relation to fencing and operating railroads (Rev. Stat., chap. 114, par. 74, Hurd 1908), and grows out of the following state of facts and circumstances shown by the record:

Appellant, as part of its railroad system, controls and uses two tracks for running its trains between East St. Louis and Belleville. These tracks at the place hereinafter named, as being the subject of controversy, run nearly in an easterly and westerly direction. The southerly track is known as the south bound track and the one to the north, as the north bound track. About 300 yards east of Church station, some six miles from East St. Louis, a highway running northwest and southeast, crosses the two tracks at a sharp angle. The two railroad tracks, while they commence to diverge somewhat at that point are about 140 feet apart, but the distance between the two tracks on the highway, by reason of the manner in which it angles across them, is 385 feet. Appellant’s right of way extends 50 feet on each side of each track. Just south of the southbound track, and running almost parallel with it at that place, is a natural watercourse, known as Brulette creek, which is spanned by a highway bridge. The bridge is on appellant’s right of way and the shortest distance from it to the south rail of the south bound track, measured at right angles to the track, is 24 feet.

On June 3, 1908, the commissioners of highways of the town of Centerville station, in which said bridge and a portion of said tracks and said highway above mentioned are located, caused a written notice signed by them and directed to appellant, to be delivered to the section foreman at Centerville station near the place in question, notifying appellant that the bridge was out of repair, unsafe and dangerous and directing appellant to put in new piling at the ends of the bridge, and to so repair the same as to make it safe for persons and property, and also containing the following: “You are hereby notified that a portion of the space between your two railroad tracks on said highway at said crossing, on your right of way, has washed out by rains, so that the said crossing at that point is out of repair, and you are hereby notified to fill in said space between said tracks, which is so washed out at said crossing, with earth or other material so that said crossing will be in condition for travel over the same in safety.”

The notice having been disregarded, the commissioners afterwards caused this suit to be brought and when it reached the City Court of East St. Louis, a jury was waived and a trial had before the court.

Appellant submitted to the court three propositions of law, which were marked “held” by the court. In the first the court held that the bridge across Brulette creek mentioned in the notice was, in the absence of the railroad crossing and the approaches thereto, a necessary bridge for travel on the highway, and was not rendered necessary by the construction and maintenance of the railroad company’s tracks and road-bed. In the second, that the railroad crossing in this case was safe as to persons and property. In the third, that the supports at the end of the bridge were strong-enough so as to be safe to persons and property using the bridge. The court also held in favor of appellant in accordance with certain propositions of law submitted by it, that (l) where a bridge is necessary for travel along a highway which is not made necessary by the construction and maintenance of a railroad crossing or its approaches, the railroad company is not liable to maintain such bridge, even though it be partly within the approaches of such crossing; that (2) “railroad crossing” means that portion comprising the track road-bed; that (3) approaches to a railroad crossing mean that portion extending from the track on each side thereof back as far as may be necessary, so that at all times the crossing may be safe, and (4) that the notice given had no application to defective stringers in said bridge.

But the court refused to hold as the law certain pther propositions submitted by appellant, which related to the sufficiency of the notice and its service upon appellant.

In deciding the case the court of its own motion made a finding which omitted all reference to the bridge, no doubt assuming that the special finding of fact in favor of appellant, eliminated that cause of complaint mentioned in the notice, but found the defendant guilty of “not repairing the space between the two railroad tracks” and entered a judgment against appellant upon that finding for $100 and costs.

The railroad company appealed, assigning a number of errors necessary to raise such questions as desired, but no cross errors were assigned by appellee.

Section 8 of the statute above referred to, and which is one of the sections relating to the subject-matter of this suit provides: “Hereafter at all of the railroad crossings of highways and streets in this state the several railroad corporations in this state shall construct and maintain said crossings and the approaches thereto, within their respective rights of way, so that at all times they shall be safe as to persons and property.”

The notice to appellant was that the portion of space between the two railroad tracks on said highway “at said crossing” on the right of way had washed out; that “the said crossing” at that point was out of repair and the work required of appellant thereby was to fill said space between said tracks, which was so washed out “at said crossing,” so that “said crossing” would be in condition for travel over the same in safety. No mention is made in the notice of aprcaches to the crossing. The court held “that the railroad crossing in this case, was safe as to persons and property.” That finding of the court fully covered all the requirements of the statute and the notice, and having thus found in fayor of appellant, upon the issues involved, nothing remained upon which a judgment against it for the penalty could be based.

The judgment of the court below will be reversed but, as under the findings of the court below as to the facts in the case, no judgment could properly be entered against appellant for the statutory penalty, the cause will not be remanded.

Reversed.


text:
    James H. Frey, Appellee, v. Kerens-Donnewald Coal Company, Appellant.
    1. Mines and Miners Act—what not defense to action charging wilful violation. Intoxication urged as having affected the health of the plaintiff, held, not competent in an action charging wilful violation with respect to ventilation resulting in the impairment of the plaintiff’s health.
    2. Mines and Miners Act—what not competent tn action charging wilful violation. If the air of the place at which the plaintiff worked was had, the fact that there was good air in other parts of the mine is not material.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    Terry & Gueltig, for appellant.
    D. H. Mudge, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee, a coal miner, working in appellant’s mine, brought this suit to recover on account of injuries to his health alleged to have been caused by appellant’s failure to comply with certain provisions of section 19, relating to ventilation, of the statute in regard to mines and miners.

Paragraph a of said section provides that the operator shall keep a certain amount of air in circulation in the mine and that the same shall he forced into every working place, so that all parts of the mine shall be reasonably free from standing powder smoke and deleterious air of every kind. Paragraph e, that all permanent doors in mines used in guiding and directing the ventilating currents, shall be so hung and adjusted as to close automatically. Paragraph f, that an attendant shall be employed at all principal doorways through which cars are hauled, to open and close the doors when trips of cars are passing to and from the working.

The numerous counts of the declaration alleged that appellant wilfully failed to comply with the above provisions of the statute, and by reason thereof, appellee became ill and permanently injured and became liable for doctors’ bills and medicines.

Appellant urges as reasons why the judgment of $566.60 rendered against it in the court below, should not be permitted to stand, that the court erred in the admission and exclusion of evidence, in giving and refusing instructions and that the amount of the judgment is excessive.

The proofs disclosed the following facts: Appellee worked in the mine from September, 1907, until the latter part of February, 1908, and during that time was engaged in mining coal at the face of the third south entry. This entry was being driven parallel with the fourth south entry and every 60 feet a crosscut 20 feet wide was made, connecting the two entries. The direction of the course of the air current was through the third south entry into the fourth south entry, and thence into other parts of the mine. About 400 feet from the face of the third south entry, where appellee worked, was a door in a cross-cut so hung as to open into the third south entry. Through this doorway, tracks were laid upon which coal cars were run, but there was no attendant at the door to open and close the same, when the cars passed through, and it was frequently caused to remain open. It was shown by the proofs, and is a well-known fact, that in order to keep the air close to the face of an entry and prevent a short circuit, it is necessary that all crosscuts be closed except the one next to the face. It is shown that the cross-cuts between the two entries in question were but imperfectly filled and that by reason of the air passing through them or said doorways or both, it did not reach the face and appellee’s working place was not kept reasonably free from standing powder smoke and deleterious air. These imperfect and improper conditions were brought to the attention of the mine manager at different times during the winter, but nothing was done to remedy them until an automatic door was put in the place of the one above mentioned in the latter part of February, 1908. Appellee testified, and the proofs appear to show, that by reason of the deleterious air in which he worked, he became sick and received the injuries complained of. That the injurious and unlawful conditions above referred to existed in the mine, is not seriously contested by appellant.

Upon the trial appellant offered to prove that during the time appellee claimed to have received his injuries, he was arrested by the village marshal of Worden for being drunk on the streets of that place, but the testimony was refused by the court. The most that can be said in favor of this evidence is that it tended to show that appellee, by his own acts, contributed to bring about his own ill health, but even if such could be held to be a proper inference, yet the proof was not admissible for the reason that this suit is brought for a wilful violation of the Miners Act under which, if proven, appellant would be liable for all injuries caused thereby to an employe, notwithstanding the fact that the acts of the latter may have aggravated the injuries or rendered him more susceptible to receive the same. Kellyville Coal Co. v. Strine, 217 Ill. 516; Riverton Coal Co. v. Shepherd, 111 Ill. App. 294.

Appellant complains that the trial court ruled that proof of the condition of the air in other parts of the mine was inadmissible unless it was shown that the air passed the place where plaintiff was at work. This evidence was properly refused as the question to be determined was, whether or not the air was forced into the working place of appellee at the face of the entry, and it was immaterial whether there was good air in other parts of the mine or not.

The seventh instruction given for appellee, permitted the jury in determining the amount of appellee’s damages, if any, to take into consideration “his loss of time and inability to work, if any, on account of such injuries,” and it is strongly urged by appellant that such instruction contains reversible error upon the ground that no loss of time is alleged in any count of the declaration, nor was the same proven on the trial. An examination of the declaration however shows that in two counts thereof, it is charged that appellee by reason of his injuries, was unable to perform his usual duties. Appellee testified, though this testimony is omitted from appellant’s abstract, “I got so I could not work at all to amount to anything,” and “I could not stand it as I did before.” Appellee also gave other testimony tending to show that by reason of his disabilities he earned much less in the month of January than he could otherwise have earned. We think the charge in the declaration together with the testimony above referred to, amply warranted the court in giving said instruction.

Appellant further complains of the refusal of its 2nd, 11th and 12th instructions. Appellant’s second refused instruction told the jury that the declaration was a pleading only and should not be considered as evidence in the case and that the only evidence which they were at liberty to consider was the testimony of the witnesses, together with such plats or other exhibits, as the court permitted to go to the jury. As a matter of fact there were no plats introduced in evidence and that portion of the instruction which referred to the declaration, was sufficiently covered by instruction No. 5 given for appellant. Appellant’s refused instruction No. 11 was also fully covered by instruction No. 5 given for it. Appellant’s refused instruction No. 12, which informed the jury that if the bad condition of the air at appellee’s working place was caused by the act of a fellow-servant, or by reason of the driver’s negligently leaving the door in question open and that such acts of such servants or drivers was not wilfully caused to be done by appellant itself, their verdict should be for appellant, did not state the law correctly as applicable to an action under the Miners Act and the facts in this case and was properly refused.

As to the amount of damages, while they appear to be somewhat large, yet they are not so excessive as to justify us in reversing the judgment on that account alone. In accord with the views herein expressed, the judgment of the court below will be affirmed.

Affirmed.


text:
    John A. Show, Appellee, v. Alton, Granite & St. Louis Traction Company, Appellant.
    1. Instructions—when should he clear and accurate. If a case is close on tlie facts, the instructions should be clear and accurate.
    2. Instructions—when upon measure of damages erroneous. In an action for personal injuries, it is error for the court in instructing the jury as to what damages may be awarded to fail to restrict the award to damages resulting from the injuries alleged in the declaration.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 11, 1910.
    Schaefer, Farmer & Kruger, for appellant.

      John J. Bbwholt, fox appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee claimed to have received personal injuries while alighting from one of appellant’s cars in a street in the village of Upper Alton, on the evening of January 27, 1908, the negligence charged being that the car was started while appellee was still on the car step and, in consequence thereof, he was thrown down upon the street and injured. There was a verdict and judgment for appellee for $4,317.

A few months prior to the time of the injury complained of, appellee, as it appeared from the proofs, came to Upper Alton from Calhoun county, Illinois. Theretofore, in 1903, he had been caught between a threshing machine and an engine and burned about the left arm, shoulder and breast and one of the bones of his right hand broken. His left hand had become deformed so that he had scarcely any use of it. After he came to Alton he obtained some work which he designated as “boy’s work” in a glass factory. While working there he again received a burn which developed into a case of blood poisoning of the left hand and arm. He made frequent trips to his physician for the purpose of having his arm and hand treated and was returning home upon one of these trips at the time he received the injuries in question. His left arm and hand were tied up and by reason of the partially disabled condition of his right hand, he could only hold on to the hand rail with his right thumb and forefinger. The car was stopped to let him off and after it started he was heard to cry out, and the conductor looking back saw him lying beside the track. It was afterwards ascertained that he had suffered a fracture of the hip at the head of the femur.

It was contended on the trial by appellant that appellee fell down after he had alighted from the car, while appellee insisted that the car started before he had alighted and threw him down. There was a sharp controversy as to the facts and the question whether appellee, in view of all the evidence, made out such a case upon the facts as would rightfully entitle him to a recovery, was an extremely close, if not a doubtful, one. Under such circumstances it was necessary that the instructions to the jury should be clear and accurate. Chicago Union Trac. Co. v. Miller, 212 Ill. 49; W. Chi. St. R. R. Co. v. Dougherty, 170 id. 379; C. B. & Q. R. R. Co. v. Van Patten, 64 id. 510; Chicago City Ry. Co. v. Canevin, 72 Ill. App. 81.

The second instruction given on behalf of appellee told the jury, in case they found the defendant guilty, to “assess the plaintiff’s damages, if any, in such amount as they may find from the preponderance of the evidence he has sustained.” This instruction did, not confine the assessment of damages to the injuries alleged in the declaration, nor indeed to those received at the time appellee claims to have been thrown from the car. It has been repeatedly held by our courts of appellate jurisdiction, that the recovery should be confined to the particular negligence alleged in the declaration, and that instructions which authorize the jury to base a verdict upon negligence not so charged, are erroneous. C. B. & Q. R. R. Co. v. Levy, 160 Ill. 385; C. & A. R. R. Co. v. Rayburn, 153 id. 290; Northern Milling Co. v. Mackey, 99 Ill. App. 57; C. C. C. & St. L. R. R. Co. v. Scott, 111 id. 234.

The failure to limit the right of recovery to the injuries appellee claimed by his declaration to have received at the time in question, was especially injurious and erroneous in this case, for the reason that appellee was very seriously injured and disabled prior to the time in question; and it would at best, even if his contentions were clearly proven, be difficult to determine how much of his present maimed and unfortunate condition was due to injuries received at the time he says he was thrown from the car, and how much due to the former repeated injuries he had suffered.

For the error in the instruction above referred to, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Elizabeth Cromer, Administratrix, Appellee, v. Borders Coal Company, Appellant.
    1. Jtjeobs—what does not disqualify. A juror Is not required to be able to read and write the English language; if he “understands” the English language he is qualified.
    2. Jurobs-—when overruling challenge for cause will not reverse. Unless an objectionable juror is forced upon a plaintiff, a failure to sustain a proper challenge for cause will not reverse.
    3. Master and servant—obligation to furnish safe place to worh. It is a positive duty of the master to exercise reasonable care to furnish to the servant and to maintain a reasonably safe place to work and the servant has a right to assume that such duty has been performed; if the place becomes dangerous and the servant knows of such danger he is justified in continuing in the service of his master for a reasonable time after a promise to repair the defect has been made.
    4. Instructions—when upon right of recovery not erroneous as ignoring defense of assumed rislc. The doctrine of assumed risk having been submitted to the jury in their instructions, an instruction in form as follows, is not erroneous.
    “If you find from the evidence in the case that the plaintiff has made out her case, as set forth and alleged in her declaration by a preponderance of the evidence, then you should find for the plaintiff and against the defendant company.”
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    Schaefer, Farmer & Kruger, for appellant.
    Webb & Webb, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Elizabeth Cromer, the administratrix and wife of Charles Cromer, deceased, brought this suit to recover damages under the statute for the death of her husband, alleged to have been caused by the negligence of appellant. There have been two trials of this cause, upon the first of which a verdict of $1,500 in favor of appellee was set aside by the court and a new trial granted, and upon the second a verdict for appellee in the amount of $7,500 was sustained by the court and judgment entered for that amount.

The proofs show, that on April 18, 1907, Charles Cromer, 53 years of age, was working as a driver in the coal mines of appellant at Marissa, Illinois, where he had been engaged for some eight or nine years. Two tracks extended north from the bottom of the shaft, the east one, known as the load track, running back for some distance into the mine. The west one, which was used for empty cars, ran parallel with, and five or six feet distant from the load track and extended north about 125 feet, where it connected with the load track by a switch. About 14 feet north of this switch there was another switch from the east track, leading into what was known as the first east entry. Some 80 to 90 feet from the bottom of the shaft, the load track was raised about 18 inches and from this point, called the knuckle, the track sloped down in both directions. Upon this knuckle, or elevation of the track, it was the custom of the drivers to unhitch the mules and the cars would then run to the bottom of the shaft by the- force of gravity. The hard pull necessary to draw the cars up on the level of the knuckle, had a tendency to make the mules dig out the dirt between the ties with their feet.

Cromer on the day in question, was driving a mule which had not been used very long, was hard to control and not well broken. Between 8 and 9 o’clock in the morning of that day he brought in a trip of two loaded cars, which he deposited on the load track between the knuckle and the bottom of the shaft, and was waiting for empties. His mule refused to stand and Cromer started to drive him up on the knuckle, but as the mule refused to start readily, lie struck him with a piece of pick handle. The mule then went up on the knuckle and to make him stand, deceased hitched In’m to the back end of one of the loaded cars with his head towards the north. The mule, however, would not stand still and started down the decline towards the switch with the loaded car. The lines used for driving the mule were attached to the spreader near the tail chain. Cromer ran after the mule and in attempting to reach the lines to stop him stepped in between the mule and the car. At a point somewhere between the two switches, he fell on- the track and the loaded car ran upon and crushed him so that later, on the same day, he died.

Appellee claims that Cromer stumbled and fell by reason of his stepping into a hole in the track between the ties said to be from 4 to 10 inches deep. On the morning of the day previous to his injury, Cromer complained to the mine boss of the condition of the track at that place, telling him it was full of holes and dangerous and stating if it was not fixed up, he was going to quit driving over it. The mine boss promised to fix the track and told Cromer not to quit driving.

Appellant urges as reasons why this judgment should be reversed, that the court erred in overruling appellant’s challenge for cause, to a juror, that the verdict was not sustained by the evidence and that improper instructions were given on behalf of appellee. Appellant challenged the juror referred to on the ground that he could not read or write, and therefore did not come within the requirement of section 2 chapter 78 of Revised Statutes, that jurors shall be free from all legal exceptions. Ability to read and write the English language, however desirable, is not one of the requirements of the statute for the qualifications of a juror. The statute does require that the juror shall “understand the English language,” and the juror in question testified that he did. Moreover, at the time this juror was challenged for cause, appellant had not exhausted his peremptory chailenges, was not compelled to take the juror objected to, and, as a matter of fact, excused him peremptorily. The record also fails to show that any objectionable juror was forced upon appellant after he had exhausted his peremptory challenges, and therefore he cannot be heard here to complain. Graff v. The People, 208 Ill. 317; Spies v. The People, 122 Ill. 1 (258).

In regard to the facts, appellant contends that the proof did not show that defendant was guilty of the negligence charged, that it did show that Cromer was guilty of contributory negligence, that there was no evidence that the alleged defect in the track was the' proximate cause of the injury and that under the facts in the case Cromer must be held to have assumed the risk of injury.

We are ,of opinion the preponderance of the evidence in this ease established that appellant was guilty of negligence in knowingly maintaining the unsafe conditions which existed at the place where the injury occurred; that the actions of Cromer at the time and under all the circumstances, were not such as to constitute contributory negligence and that the unsafe and dangerous condition of the track was the proximate cause of the injury.

A more difficult question, and the one upon which appellant places great reliance, is that of assumed risk. Cromer knew of the condition of the track and that it was dangerous to the employes of the company, especially to those going over it so often as the mule drivers. So fully was this impressed upon .his mind that he notified appellant’s mine manager on the day before the injury, that it was dangerous to drive over it and that he was likely to be injured if the ties were not covered. He also threatened to quit driving over the track unless the dangers were removéd, but continued with his work when the mine manager promised to fix the track and told him not to quit. Appellant argues that the work he was engaged in and the surroundings were plain, simple and easy to understand and seeks to apply the rule of law which makes a difference in regard to assumed risk between the continued use of complicated machinery and of that which is simple and readily understood, and cites authorities to sustain the theory that in the latter case the workman, as a rule, assumes the hazards. This, however, differs from those cases, as it does not concern the use of simple or complicated machinery, but involves the question of providing and maintaining a reasonably safe place for the employe to work in.

In Armour v. Golkowska, 202 Ill. 144, it is said: “On entering the service of the appellants, the appellee had the right to assume that the place provided by them in which she was to do their work, was reasonably safe and that they would exercise reasonable care to maintain that condition of safety. (Nat’l. Syrup Co. v. Carlson, 155 Ill. 210; Ross v. Shanley, 185 id. 390.) The duty which the master owes to his servant to provide a reasonably safe place wherein the servant is to work, is a positive duty devolving upon the master and is not one of the perils or risks assumed by the servant.”

In Republic Iron & Steel Co. v. Lee, 126 Ill. App. 297, Mr. Justice Farmer, speaking for the court, said: “The duty of the master to provide a reasonably safe place for his servant to work is a positive one, and non-compliance with this duty is not one of the ordinary risks assumed by the servant.”

Assuming, as it must be done under the law, that it was the primary duty of appellant to provide Cromer with a reasonably safe place in which to work, the further question arises, was it absolved from that duty by the fact that Cromer knew the dangers 1 Cromer only continued in the service at the request of appellant’s manager or pit boss, under a promise to repair, and appellant invokes the rule, that if a promise to repair is made without fixing the time within which the repairs shall be made, the servant may continue his work for a reasonable time under the circumstances, within which such repairs could or ought to be made and after the expiration of such reasonable time to make repairs, if, the same are not made and the defects are open and known to the servant, and no new promise to repair is made and the servant continues the work, he assumes the risks incident to the defects of which he complained. Gunning System v. LaPointe, 212 Ill. 274.

In this ease the defects were easy to rectify and the repairs could have been apparently made at small expense for labor and material. It was a trifling affair for the mining company. On the other hand Cromer had either to submit himself to the existing dangers or abandon his employment, with consequent loss of livelihood. The conditions therefore which confronted the two parties were immensely different. It would be an extremely harsh rule which would hold that under these conditions appellant, which could have readily made the repairs in a few hours, should in case it failed to do so, be thereafter absolved from all liability, and Cromer who had no power to remedy the dangerous conditions, must if he continued his employment, assume the hazards caused by appellant’s neglect to make said repairs. This would allow appellant, in effect, to take advantage of its own neglect of duty and would be so manifestly unjust that the question as what should be a reasonable time within which, under the circumstances, Cromer could have continued in his position, without assuming the risk, should receive a most liberal construction. This question under the facts in this case, was one for the jury to determine under the instructions of the court, and under the proofs we are not at liberty or disposed to disturb their verdict.

Appellant complains of two of the instructions given for appellee. One of these instructions told the jury, “If you find from the evidence in the case that the plaintiff has made out her case, as set forth and alleged in her declaration by a preponderance of the evidence, then you should find for the plaintiff and against the defendant company.” This instruction has been approved many times by our Supreme Court. Chicago City Ry. Co. v. Carroll, 206 Ill. 318, and cases there cited. But the objection is made that it is erroneous in this case, for the reason that it does not take into account the defense of assumed risk. Another instruction, however, given on behalf of appellee, which was not general in form, but applied directly to the facts in the case, gave appellant, in effect, the benefit of that defense and an instruction was also given for appellant upon the question of assumed risk. As the instructions on both sides of the case raised the question of assumed risk, we are of opinion that the giving of the instruction objected to was not reversible error.

The other instruction complained of by appellant informed the jury, that if Cromer told appellant’s pit boss of the condition of the track, stating his fear of injury therefrom, and the pit boss promised he would repair the same and ordered and directed Cromer to continue in the discharge of his duties on such track until such repairs could be made, then said Cromer was justified in continuing in his work on said track for a reasonable time thereafter unless the danger incident to the work was so imminent that an ordinarily prudent and careful person, exercising due and ordinary care for his own safety, would refuse to continue at such work. The objection to the instruction is that it justified Cromer in continuing his work “for a reasonable time thereafter,” no definite time being fixed and that it should have provided only for the continuation of such work without assuming the risk for “such time as would be reasonably sufficient for the master to fulfill his promise.”

In view of what we have above said in our discussion of the facts as applicable to the question of assumed risk, we are of opinion there was no error in giving this instruction to the jury in the form in which it was submitted to them. We find no error in the record in this case, which calls for a reversal of the judgment and the same is therefore affirmed.

Affirmed.


text:
    Douglas Field et al., Appellees, v. St. Louis & San Francisco Railroad Company, Appellant.
    1. Common carriers—burden to show assent to terms of shipping contract. In an action to recover for loss or damage to merchandise the burden is upon the carrier to establish the assent of the shipper to the terms of a special shipping contract.
    2. Evidence—what competent upon market value. In an action to recover for hogs lost in transit, it is competent, as bearing upon the market value of the hogs so lost, to show what was received from the sale of the remaining hogs of the same shipment at the place of destination of the entire consignment.
    Action on the case. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    Alexander Flannigen, for appellant.
    S. F. Gilmore and J. M. Freels, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellees brought this suit to recover the value of 40 hogs claimed to have been lost in course of shipment over appellant’s road. A trial by jury resulted in a verdict and judgment for appellees, for the sum of $120.75.

Appellant states as reasons why the judgment in this case should be reversed, that the evidence was insufficient to sustain the verdict; that the trial court erred in permitting appellees to introduce certain evidence to show the value of the hogs in question and also in the matter of the instructions given and refused.

The proofs in the record disclose, that on February 7, 1907, one Nelson Field, the father of one of appellees, was at Hardy, Arkansas, buying hogs for appellees and on that day engaged two cars from appellant intending to ship the hogs the next day; that he had one William Johansen assisting him and they loaded one of the cars on February 9 with 151 hogs, as claimed by appellees; that after they were loaded, Field left Johansen to ship out the other hogs and sign the shipping contract and proceeded to St. Louis, Missouri. The second car was not loaded until February 11. Both Johansen and a man who was assisting the station agent, counted the hogs as they were loaded and found the number to be 140. The second car as soon as loaded was sealed, and Johansen, having signed the shipping contract, started on the train with it. Both carloads were consigned to Evans-Snider-Buel Go., a live stock commission firm at the National Stock Yards, Illinois, for sale on account of appellees and each load was billed out as containing the respective number of hogs as above mentioned.

Appellees sought to prove that on the arrival at its destination of the car shipped on February 9th, only 130 hogs remained in the car, and of the car shipped on February 11th, only 125 reached their destination. The trial court held, however, that as appellees failed to produce as a witness the man who counted the first load on its arrival, they could not recover for any loss claimed to have been sustained as to that load.

The verdict and judgment were only for the loss of the 15 hogs in the second car and it is only with those hogs and that car that we are concerned. The car arrived at Springfield, Missouri, between 3 and 4 o’clock in the morning of February 12th and was taken to the Stock Yards at that place and unloaded before daylight by the assistant foreman, who testified that he only unloaded 126 hogs from the car and that he afterwards reloaded them into another car. Johansen on the arrival at the train at Springfield, was directed by the conductor to go to the train master’s office and the hogs were unloaded while he was absent. When this car arrived at the National Stock Yards, the hogs were counted out by it by the night foreman of the stock yards company, who found the car contained only 125 hogs. These hogs were disposed of in the open market in the usual course of business on the day of their arrival and the following day. The proof was sufficient to sustain the claim of plaintiff that 140 hogs were loaded into the car and that only 125 of them reached the National Stock Yards.

Appellant contends, however, that appellees were bound by the special contract, signed by Johansen, limiting its liability in such a way as to relieve them from responsibility for this loss. Referring to such a shipping contract our Supreme Court said in C. C. C. & St. L. Ry. Co. v. Patton, 203 Ill. 376: “The burden is on the carrier to show that the terms of the contract were assented to by the consignor and in the absence of any evidence the presumption follows that he did not assent to the terms of the contract.”

The case of Wabash R. R. Co. v. Thomas, 222 Ill. 337, quotes approvingly and adheres to the doctrine laid down in C. & N. W. Ry. Co. v. Simon, 160 Ill. 648, where it was held that “where a contract limiting the liability of a carrier is contained in a bill of lading which in its entirety constitutes both a receipt and contract, the onus is on the carrier to show the restrictions of the common law liability were assented to by the consignor, and whether there is such assent is a question of fact. The mere receiving the bill of lading without notice of the restrictions therein contained does not amount to such an assent thereto.”

Tn this case the question whether appellees assented to the restrictions imposed by the terms of the contract in question, was submitted to the jury by the instructions, and the proofs were such as to warrant a finding that there was no such assent.

Complaint is made that evidence was admitted to show what the hogs which arrived at the stock yards and composed part of the same shipment, were sold for, to show the market value of the hogs which were lost in transit. It was of course impossible to determine the exact weight and condition of any of the hogs which were lost. We think it was therefore not unreasonable to assume under the circumstances, that the hogs which were lost were on an average of equal weight and condition with those which were sold. They, of course, had some value and it was not improper as bearing upon that question, for appellees to be permitted to show what the other hogs out of the same lot sold for in the regular course of business in the open market.

Appellant also complains of the instructions given for appellees because they each submitted to the jury the question whether appellees knowingly assented to the limitations imposed by the bill of lading, or shipping contract. It is claimed by appellant that these instructions submitted to the jury the construction of the contract, which was a question of law. The instructions do not reasonably bear this interpretation, but they simply submit to the jury the question whether the provisions of the contract were knowingly assented to by the appellees, and such being the case, they, in the light of the authorities above referred to, correctly stated the law.

Appellant’s refused instructions assumed that the shipping contract was binding upon appellees, regardless of whether or not they assented to the provisions thereof and there was no error in refusing them.

The judgment of the court below is affirmed.

Affirmed.


text:
    Emma Stevenson, Appellee, v. Avery Coal & Mining Company, Appellant.
    1. Evidence—when expert testimony not erroneous, as invading province of jury. In an action under the Mines and Miners Act charging wilful violation thereof, held, that it was competent for experts to testify that a particular shot was a practical and workmanlike shot.
    2. Evidence—when admission of explanation of letter not errone

      ous. Beld, under the evidence, that it was within the discretion of the court to permit an attorney to explain a letter written hy him which tended to show an attempt to corrupt a witness.
    3. Mimes and Miners Act—what not defense to action charging wilful violation. In ah action charging a wilful violation of the Mines and Miners Act, a recovery will not he defeated by the interposition either of the defense of assumed risk or that of fellow-servants.
    Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Perry county; the Hon. B. R. Burroughs, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    B. W. Pope and Percy Werner, for appellant.
    Webb & Webb and A. B. Dry, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This case has been heretofore in this court, where a judgment of $2,000 in favor of appellee was reversed and the cause remanded. Stevenson v. Avery Coal & Mining Co., 143 Ill. App. 397. When the case was reinstated on the docket of the trial court, it was consolidated with the case of Blanche Hougland et al. v. The Avery Coal & Mining Company, which grew out of the same facts and circumstances, and the two cases were tried together, resulting in a verdict and judgment in favor of the plaintiff in each case, for the sum of $3,000, from which judgment separate appeals have been taken to this court.

Upon this trial it was stipulated that either party might read from the bill of exceptions filed in this cause on a former appeal and both sides took advantage of the agreement and read from said bill of exceptions. Appellant re-examined a few of its former witnesses but neither side produced a new witness concerning the conditions existing in the mine prior or subsequent to the explosion.

This suit was brought for damages resulting to plaintiff by reason of the death of her husband, William Stevenson, alleged to have been caused by the wilful failure of appellant to comply with certain provisions of the act in regard to Mines and Miners.

The case was tried upon the second, third and fourth counts of the declaration. The second count charged appellant with the wilful failure to comply with the requirements of the statute, that cross-cuts shall be made not more than sixty feet apart and no room opened in advance of the last open cross-cut, and alleged that by reason thereof great quantities of lamp and powder smoke, gases, mine dust and other deleterious air, accumulated and remained in certain ‘rooms and that while said Stevenson, a shot-firer, was waiting in one of said rooms for the firing of a shot lighted in the face of an entry near by, said shot fired and communicated the fire to said lamp and powder smoke, gases, mine dust and other deleterious air, causing an explosion and thereby killing him.

The third count charged a wilful violation of the provisions of the statute requiring that when the air becomes charged with dust, the operator must have the roadways regularly and thoroughly sprayed, sprinkled or cleaned; and the fourth was substantially the same as the third, but charged only a failure to frequently and thoroughly sprinkle the hauling roads of the mine. When the case was here before, it was reversed and remanded because the court below refused to admit in evidence counts five, six and seven of the original declaration, withdrawn by appellee and afterwards offered in evidence by appellant; also because the court refused to admit in evidence a certain letter written by an attorney of appellee to a proposed witness. The causes now assigned for reversal of the judgment, are that there was no substantial evidence upon which to base the verdict; that the court erred in permitting certain expert witnesses to answer interrogatories which called for conclusions as to ultimate facts; in permitting the attorney who wrote the letter above referred to, to explain what he intended thereby, and in giving appellee’s instruction No. 8.

The facts as disclosed by the record are substantially as follows: At the time of the death of Stevenson, appellant was mining coal from the face of the first and second west entries oft of the south entry and from rooms 1, 2 and 3 turned north off of said first west entry. As the first and second west entries were driven from the south entry, cross-cuts were made between them, the last cross-cut being 140 feet from the face of the first west entry and about thirty feet from the face of the second west entry. Fourteen feet west of this cross-cut, room No. 3 opened north off of the first west entry. From room 3 to the face of the entry was about 100 feet. At that time the course of the air current was west along the first west entry, then through the cross-cut into the second west entry, then east along that entry to the south entry. It did not go within 140 feet of the face of the'first west entry and lacked fourteen feet of reaching the mouth of room No. 3. Coal cars from the second west entry passed over a track laid through said cross-cut to the first west entry and thence to the bottom of the shaft. A cross-cut had been started on the south side of the first west entry between the one above mentioned and the face, but was not near completion. On the afternoon of the day in question, Stevenson and William Hougland, who were shot-firers in appellant’s mine and whose duty it was to fire shots in the two entries and three rooms above mentioned, went down to fire shots as usual. Subsequently a loud report was heard by those out in the vicinity of the top of the mine and volumes of smoke were seen ascending from the mouth of the shaft many feet in the air. When an entrance into the mine was effected, it was discovered that there had been a violent explosion. Props were blown down, tools and powder boxes blown open, powder cans blown to pieces, trap doors had been demolished and black damp and dangerous gases had begun to accumulate. Stevenson and Hougland were both found dead, the body of the former being discovered in room three about forty feet from the door and that of the latter in the first west entry about ten feet east of the cross-cut between the entries. The hair and clothing of the men were not burned but the flesh about the face appeared to be parched and baked. It was discovered that a shot lighted in the stub crosscut had not been fired, the fuse having gone out; that shots placed in the face of the first west entry and room 3 had exploded with the usual results, while one in the face of the second west entry had exploded and brought down about one-third of the cutting from the face and left the balance standing. This last shot had been prepared on that day by a miner named Heppe, who drilled and charged the hole and also made a cutting in the face of the entry. While he was preparing the shot Hougland examined the work, measured the hole, ascertained how much powder was going to be put in and approved the same.

The theory of appellant is that the hole was drilled a foot deeper than the cutting in the face of the entry, going into the “tight” or “solid” and the result was a “windy” or “blown out” shot; that thereby the force of the explosion came from the face out into the entry and not towards the cutting, causing large quantities of sparks and flames to be blown into the entry and cross-cut; that they directly ignited large quantities of powder which exploded and formed certain gases which destroyed the lives of the two men.

On the other hand appellee contends that the shot in question was a practical shot, and was drilled only a few inches deeper than the cutting in the face; that by reason of the opening of room 3 in advance of the cross-cut and air current and the failure to open crosscuts every sixty feet and to keep the roadways sprayed, sprinkled and cleaned as provided by the statute, the air become charged with mine dust and gases; that this dust became ignited by the shot fired and a general explosion followed; and that there was not sufficient powder in the mine to produce of itself the result claimed by appellant.

There was some controversy in the proofs, but it plainly appeared from a preponderance of the evidence, that appellant had wilfully violated the provisions of the Miners Act in every one of the particulars named in the above mentioned three counts of the declaration.

Attorneys for appellant press upon us their theory that the death of Stevenson was caused by gases following an explosion of powder, referring to conditions found to exist in the mine at the time and to well known rules of natural science, with a force which we are not disposed to ignore or underestimate. On the contrary the condition of the mine as to dust and gases was clearly shown to be bad and there was much proof to sustain the theory of appellee that the explosion occurred in the manner claimed by her. Under these conditions it was for the jury to say how the death of Stevenson was brought about, and we are not disposed to question the correctness of their solution of the problem.

Upon the trial six witnesses for appellee testified that the shot in question was a practical workmanlike shot and appellant complains that the interrogatories put to them were improper for the reason that they called for the conclusion of the witnesses as to the ultimate facts. These questions and the answers thereto appear to us to have been unobjectionable, but without going into the merits of that question, we are of opinion there could have been no substantial error in allowing these expert witnesses to state their opinions upon the subject named, for the reason that it was immaterial so far as plaintiff’s right to recover was concerned whether the shots were prepared in a practical and workmanlike manner or not.

When this case was before us on the former occasion, we said in speaking of the claim of counsel for appellant that the court erred in denying their motion to direct a verdict in its favor, “they base this contention upon three propositions: that a shot-firer employed under the Act of 1905 providing for ‘ shot-firers in coal mines,’ does not come within the protection of the general mining act; that the deceased had violated ‘the statute under which he was acting, thereby contributing directly to his own injury,’ and that the violation of the statute charged in the declaration, was not the proximate cause of the injury and the death of deceased. We regard all three of these propositions as conclusively settled, against the contentions of appellant, by the very recent decision of our Supreme Court, in the case of Davis v. Ill. Collieries Co., 232 Ill. 284.” In the case last mentioned (page 290) the following language is used: “It is also insisted that appellee fired the shots in an unskillful manner and by a method forbidden by the statute, and that his acts were the cause of the explosion. The evidence on his part indicates that even if this were true, the explosion so caused, was merely the explosion of gas resulting from the firing of one of the earlier shots; that the explosion of that gas could not have reached appellee at the place in the mine where he was injured, had the roadway been sprinkled or cleaned, and that the explosion reached him and became harmful to him because it was aggravated and made more destructive by the fact that the air in the roadway was charged with dust. Under these circumstances, appellee’s negligence, if it existed, was merely contributory and would afford no defense under our statute in reference to Mines and Miners.”

If the negligence of the shot-firer himself is no defense under the statute, it follows, as a matter of course, that the negligence of the miner who prepared the shot, even if proven would be no defense.

It is further insisted by appellant that the court erred in permitting the witness A. E. Dry, one of the attorneys for appellee, to testify as to his intention with reference to the compensation offered a proposed witness in a letter written by him to said witness. On the former trial, the court below refused to admit this letter in evidence and when the case was before us, we said that the letter when properly identified, should have been admitted in evidence, as it tended to prove an attempt to corrupt the witness. On the last trial this letter was admitted in evidence and the writer was permitted to explain what he meant by the language used. This explanation might well have been excluded by the court, but as the witness to whom the letter was directed, was not called on behalf of appellee, but was called by appellant and testified for it upon several questions connected with the case, the explanation of the attorney was of no materiality in the case and was important only to him. Under these circumstances, we consider the admission of the explanation of the attorney a proper matter of discretion with the trial court.

It is finally insisted by appellant, that the court erred in giving instruction No. 8 on behalf of appellee, which was as follows:

“The court instructs the jury that although you may believe from the evidence, that the said Stevenson and Hougland, were each guilty of negligence in inspecting and firing the shot in the face of the second west entry, still that fact alone, if shown by the evidence to be a fact, is not sufficient in law to defeat the plaintiff’s right to recover a verdict in their favor, provided you further believe from the evidence and instructions of the court, that the defendant was guilty of wilfully violating some provision of the statute, as charged in the plaintiff’s declarations or in some one count thereof and that the death of said Stevenson and Hougland, directly and approximately resulted therefrom and that their death would not have resulted except from such wilful violation of the statute, if any is so shown by the evidence, as charged in the counts of the declaration before you as pleadings in the two cases.”

The principal objection urged by appellant to this instruction is that it tells the jury the negligence of Stevenson and Hougland would not prevent a recovery by them if the other conditions existed which entitled them to recover.

Appellant insists that as the statute in reference to shot-firers in mines provides that no shot-firer shall fire any shot which in his judgment, from an inspection thereof, shall not be a workmanlike, proper and practical shot, that if Stevenson neglected to inspect the shots and exercise his judgment, as to whether they had been properly prepared before firing them, and negligently fired a shot improperly prepared, he violated his statutory duty, and appellee could not recover in this suit. We do not think the position of appellant upon this question is well founded. That portion of the instruction which is criticised by appellant, as above, is in accord with the law as expressed in our former opinion in this case and in the case of Davis v. Ill. Collieries Co., supra, and there was no error in giving it.

The judgment of the trial court will be affirmed.

Affirmed.


text:
    Blanche Hougland et al., Appellees, v. Avery Coal & Mining Company, Appellant.
    1. Mines and Minees Act—in whom right of action lies for death resulting from ivilful violation. In such a case the right of action lies, first, to the widow and then to the “lineal heirs or adopted children”; where there is no widow entitled to sue such right of action reposes in all the children, and there can he hut one recovery for the entire loss.
    2. Statute of Limitations—what does not constitute a new cause of action. The addition of another plaintiff in an action charging a wilful violation of the Mines and Miners Act, does not constitute the setting up of a new cause of action.
    3. Statute of Limitations—when cannot he availed of. In order to urge that an amendment constitutes the setting up of a new cause of action, the Statute of Limitations must be specially pleaded.
    4. Amendments and jeofails—when granting leave to amend after verdict will not reverse. Held, that it was not an abuse of discretion for the trial judge to permit an amendment adding an additional party after verdict.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Ferry county; the Hon. B. B. Burroughs, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    B. W. Pope and Percy Werner, for appellant.
    Webb & Webb and A. B. Dry, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellees, Blanche Hongland and Thomas Hougland, brought suit against appellant for damages, accruing to them by the death of their father, William Hougland, alleged to have been caused by the failure of appellant to comply with certain provisions of the law in relation to mines and miners.

The facts and circumstances connected with the death of William Hougland are the same as those involved in the case of Emma Stevenson v. Avery Coal & Mining Company, ante, p. 565. Upon the trial in the court below, the two cases were consolidated and tried before the same jury and upon the same evidence, and there was a judgment against appellant for $3,000 in each case, from which each perfected separate appeals. What we have said in our opinion in the Stevenson case, is alike applicable to this case and the conclusions reached upon the points presented to this court in that case, must necessarily be the same here. In the case before us however, one additional question was raised. Said William Hougland had been divorced from his.wife some six years prior to his death. He was survived however by three children, one of whom, Edward, was twenty-eight years of age at the time this suit was brought, and the other two, Blanche and Thomas Hougland, still minors. In the decree of divorce which was granted Hougland, he was awarded the custody of said two minor children.

This suit was commenced originally in the name of Blanche Hougland and Thomas Hougland, minors, by Cullen Hougland their next friend, and the trial was conducted in their names.

It appears that appellant made a motion to dismiss the case on the ground of want of proper parties plaintiff, which was denied by the court, and said action was made one of the grounds mentioned in the motion for new trial. After the motion for new trial was entered, the court continued the hearing of the same until the following term of court, at which time leave was granted the plaintiff to amend the declaration, by adding the name of Edward Hougland as an additional party plaintiff, to which action and ruling of the court, appellant excepted and here assigns the same as error.

The statute gives the right of action in cases such as this, first to the widow of the person killed and second to his “lineal heirs or adopted children” and provides that such action shall be commenced within one year after the death of the party injured. It is asserted by appellant that the statute gives the right of action to all the children of the deceased; that it is one entire action which cannot he split up, that Blanche and Thomas Hougland, the original parties plaintiff, had in themselves no cause of action; that by the addition of Edward Hougland, as a plaintiff, a new cause of action was stated, and that therefore the cause of action set forth in the declaration, as amended after the verdict, is barred by the statute, the amendment not having been made until more than a year after the death of William Hougland occurred.

It is true that the right of action accrued to all the children of the deceased, and that there could be but one action and one recovery for the entire loss. Beard v. Skeldon, 113 Ill. 584. But there is a difference between a “right of action” and a “cause of action,” as was said by this court in the case of Staunton Coal Co. v. Fischer, 119 Ill. App. 284. The cause of action here was the death of Hougland under the circumstances charged in the declaration and shown by the proofs. This cause of action was in no wise changed by the addition of another plaintiff and the right to make this amendment was not altered by the fact that it was not asked for or accomplished until after the verdict.

In Price v. Groodrich, 141 Ill. App. 568, where leave was given to add the name of an additional plaintiff after verdict, and while motion for new trial was pending, it is said by the court: “We think that section 24 of our Practice Act gave to the Circuit Court power to permit the pleadings and proceedings to be amended after verdict, and pending the motion for a new trial, by adding the name of Carpenter as plaintiff; and that the court on the evidence in this case properly exercised such power by making such amendment. Cogshall v. Beesley, 76 Ill. 445; Tomlinson v. Earnshaw, 112 id. 311; Fenton v. Lord, 128 Mass. 466, Such amendment did not introduce a new cause of action and the demurrer to the plea of the statute of limitations was therefore properly sustained.”

In the case of Chicago Ter. Tran. R. R. Co. v. Helbreg, 99 Ill. App. 563, a personal injury suit, where the declaration was permitted to be amended after the verdict, and while the motion for new trial was pending by alleging that deceased left a widow and next of kin, it was said by the court: “This .amendment was properly allowed, the amendment not stating any new cause of action or doing anything but perfecting the declaration, so as to enable the plaintiff to recover, on the cause already though imperfectly stated.”

We are of opinion there was no error in permitting the declaration to be amended by inserting the name of Edward Hougland as a plaintiff, after the verdict. Appellant, however, could not take advantage of this point, even if it were meritorious, for the reason that it did not raise the question of the bar of the statute by special pleas, setting up the same.

In Burnap v. Wight, 14 Ill. 303, it was held that the defense of the statute of limitations could not be interposed by a motion to dismiss, but that it must be relied on by plea.

In Brink’s Express Co. v. O’Donnell, 88 Ill. App. 459, where a plea of the statute of limitations was filed, averring the cause of action did not. accrue to the plaintiff within two years prior to the filing of an amended declaration, it was said by the court: “This was the appropriate manner for the defendant to present the bar of the statute to the cause of action set up by the new counts, if such causes of action were different from any set up by the original declaration.”

This was the method of raising the question adopted by the defendant in Price v. Goodrich, supra, where the motion to amend was made after verdict and thereupon" leave was given to defendant to file a plea of the statute of limitations.

Appellant also insists that the tenth instruction given for appellee was erroneous. This instruction purported to state the requirements on the part of plaintiffs, for a recovery, among which was a finding by the jury that “the said Hougland left no widow but did leave him surviving Blanche Hougland and Thomas Hougland as his lineal heirs.” The criticism of the instruction is that the name of Edward Hougland was not included in the instruction, but that Blanche and Thomas Hougland were treated as the only children of the deceased. We do not think under the circumstances of this case, the omission of the name of Edward Hougland was reversible error, or that it could have been prejudicial to the rights of appellant. It is not to be supposed that if his name had been added, making three persons who were to be the beneficiaries of a verdict, instead of two, that a less amount would have been awarded the plaintiffs by the jury in the verdict, than was awarded the two persons who were named as plaintiffs in the declaration, at the time the case was submitted to the jury.

For the reasons above stated, as well as those above referred to, as set forth in the opinion in the case of Stevenson against the same appellant, the judgment of the court below will be affirmed.

Affirmed.


text:
    Mary A. Taylor, Appellee, v. American Patriots, Appellant.
    1. Pleading—when error in sustaining demurrer not ground for reversal. If a demurrer to pleas has been sustained such action, though erroneous, will not reverse if upon the trial the defendant has been allowed the benefit of the defense set up in such pleas.
    2. Insurance—when engaging in prohibited employment will not defeat recovery. If the insured with knowledge of the insurer has engaged in a prohibited occupation, such knowledge, accompanied by a continuance to accept dues, operates as a "waiver of the right to rely upon a defense predicated upon the engagement in such prohibited occupation.
    3. Fraternal beneht society—relation of subordinate lodge to principal body. A subordinate lodge is the agent of the supreme lodge and may, by its conduct, waive conditions affecting insurance benefit.
    Assumpsit. Appeal form the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    Kagy & Vandervoort, for appellant.
    W. F. Bundy, L. B. Skipper and Noleman & Smith, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit by appellee, as beneficiary in a benefit certificate issued to her husband, Henry Alfred Taylor, now deceased, by appellant for the sum of $1,000 and with the further agreement therein to furnish the beneficiary $100 for a monument to be erected to the memory of the deceased.

The defense was that deceased had entered an employment prohibited by the terms of the certificate and was killed while so employed and by reason thereof. The judgment appealed from was in favor of appellee, for $1,118.35.

The deceased, Taylor, as it appears from the proofs, a coal miner, made a written application- on February 18, 1907, for a benefit certificate in appellant’s society, in which he warranted, among other things, that if he at any time thereafter, should engage in any one or more of certain hazardous or prohibited occupations enumerated in the constitution of appellant, or should engage in any business, employment or occupation that required him to perform as incident thereto any work or duties pertaining to one or more of such hazardous or prohibited occupations, he would send to the recorder written notice of that fact before he engaged in such occupation or employment; that the warranties therein contained should be a condition precedent to the existence of any legal liability on the part of appellant to him or his beneficiaries; that the application together with his answers and the warranties therein contained should constitute a part of the contract of insurance.

It is conceded by appellee that Taylor was employed as a shot-firer in a coal mine for a number of months before his death; that shot-firing was one of the prohibited employments mentioned by said constitution; that his death was occasioned on March 10, 1908, by reason of such employment and that he gave no written notice to the recorder of appellant that he was going to engage in such occupation. It is conceded by appellant that all of Taylor’s monthly dues were paid by him and received by the society each month from the time the policy was issued until the death of the insured.

It is agreed by both parties that as to the facts, the only contested question is whether appellant did or did not waive its right to declare a forfeiture of the benefit certificate in question. A number of witnesses testified on the part of appellee that the insured in the month of December, 1907, at a meeting for the election of officers of the society, declined to accept a certain office, giving as his reason that he was employed as a shot-firer and had not the time to attend to it; that said remark was made in open meeting, when the insured was standing and addressing the presiding officer and in the presence of the recorder; that at another meeting in like manner, in the presence of the recorder, he told the presiding officer he could not act as a member of a banquet committee because he was employed as a shot-firer. The recorder testified that he was present at these meetings referred to and that deceased did not on such occasions give as an excuse for refusing to serve in the positions named, that he was a shot-firer in the mine; that witness did not know Taylor was so engaged before the time of his death.

The fact that the lodge and the recorder were informed that Taylor was employed as a shot-firer, in the manner above set forth, appears to have been proven by a preponderance of the evidence in the case.

Appellant asserts that the court below erred in sustaining a demurrer to certain of its pleas setting up that the filing of the written notice, by the insured, of his being engaged in a prohibited occupation, with the recorder of appellant, was a condition precedent to the right of action of the beneficiary; that this condition had not been fulfilled and therefore the right of action had not accrued to appellee. One of the special pleas, on which the case was tried, contained averments, under which appellant was entitled to set up the defense referred to; and as a matter of fact, appellant did avail itself of this defense upon the trial and the jury were instructed on the theory that there could be no recovery unless it was shown by appellee that there was a waiver of the condition named. There was therefore no error on the part of the trial court in sustaining the demurrer to said pleas.

Appellant insists that the trial court erred in ruling as to certain of the instructions.

Appellee’s first instruction told the jury if they found from a preponderance of the evidence appellant continued the insured as a beneficiary member, and received dues from him after it had knowledge that he was working as a shot-firer and after knowledge that he had not filed his waiver of liability in writing, and further found, from the evidence bearing upon the question, that defendant thereby waived the provision of said benefit certificate and said constitution and by-laws, prohibiting insured from working as a shot-firer in a coal mine, they might find the issues for appellee. Appellant’s criticism of this instruction is that it asked a finding of the jury upon the question whether appellant had knowledge of the employment decedent was engaged in when there was no evidence that appellant had such knowledge. This is evidently a misapprehension of the condition of the proofs as the record appears to us to show an abundance of evidence to sustain the contention of appellee in this regard.

It is also contended that the court erred in submitting to the jury the question whether appellant waived the provisions of the benefit certificate, on the ground that the word “waived” was not defined to the jury. In the course of the instruction however, the jury were informed as to the meaning of “waiver” as applicable to the facts in' this case; indeed if the jury found that appellant received the dues from the insured on his benefit certificate after it had knowledge that he was working as a shot-firer as submitted by said instruction, it would follow as a matter of course that they could further find that the provisions in the benefit certificate, constitution and by-laws prohibiting such employment, were waived.

In Orient Ins. Co. v. McKnight, 197 Ill. 190 (a fire insurance case), it is said, in speaking of a provision of the policy which prohibited the insured from doing certain things to increase the hazard to the premises named in the policy, unless notice of the additional hazard was given the company’s agent and a waiver thereof written upon or attached to the policy, “such provisions being for the benefit of the company may be waived by it and, when having knowledge of the fact, it should not be permitted to retain the money of the insured and treat the policy as in full force, until a loss occurs, and then for the first time seek to avoid the policy.”

In Northwestern Mutual Life Ins. Co. v. Amerman, 119 Ill. 329, where a life insurance policy contained a condition of forfeiture in case the assured should engage in a certain prohibited occupation, it was said: “Conditions like those under consideration, are inserted in the policy for the benefit and protection of the insurer, and may be waived either before or after breach thereof and when the agent of the company, through whom it must act, in dealing with the public, knowing of the right of forfeiture, permits the assured to pay the premium to the company, he relying on his policy as valid and subsisting, the company will be held to have waived the condition. It would be grossly inequitable to permit the company to receive the premiums from an assured, who was induced thereby to rely upon his policy for indemnity, and then insist upon forfeiture from facts known by it to exist, when the premium was paid.”

The same rule applies to fraternal benefit societies. “If the company has by its course of conduct, acts or declarations or by any language in the policy, misled the insured in any way in regard to the payments of premiums or created a belief on the part of the insured, that strict compliance with the letter of the contract, as to the payment of the premium on the day stipulated, would not be exacted, and the assured in consequence, fails to pay on the day appointed, the company will be held to have waived the requirement and will be estopped from setting up the condition as cause for forfeiture.” Bacon on Benefit Societies, sec. 433; Grand Lodge A. O. U. W. v. Lachmann, 199 Ill. 140.

“What acts will in all cases amount to a waiver of a forfeiture of membership in a mutual benefit society, cannot be definitely stated but conduct on the part of the society, which amounts to a recognition of a member’s claim to the continuing rights of membership, will relieve him from the consequences of his default. The receipt of assessment after default in payment is a common form of waiver. The question of waiver is in most cases a question of fact for the jury. 16 Am. & Eng. Ency. of Law 83.” Ry. Con. Ben. Ass’n. v. Tucker, 157 Ill. 194.

Appellee’s second instruction, which is complained of by appellant, informed the jury if they believed from a preponderance of the evidence, appellant had a local council or a lodge in the city of Centralia, consisting of members of the society, and that said local council elected a clerk and other officers, authorized to receive and collect dues and assessments from the members and forward the same to the home office of appellant, take applications for members and deliver benefit certificates to them, those facts might be taken into consideration in determining whether the local council and its officers were the agents of appellant; that if the fact that Taylor was following the occupation of shot-firer, was communicated by him to the local council and some of its officers, several months before his death, appellant would be charged with knowledge of the fact; that if said local council and clerk continued to receive the dues and assessments from Taylor, with knowledge of the fact that he was engaged in such occupation, and appellant did not exercise its option to declare the benefit certificate forfeited, then appellant waived the forfeiture and the issues would be found for appellee. “In associations of this character, the relations of the members to the order is necessarily through the subordinate lodges and when a forfeiture of the certificate of insurance is insisted upon, it is proper to show that the subordinate lodge with full knowledge of the alleged cause of forfeiture, continued to treat the insurance as in full force, receiving the member’s dues and paying the money over to the supreme lodge.” High Court Ind. Or. Foresters v. Schweitzer, 171 Ill. 325; Coverdale v. Royal Arcanum, 193 id. 91.

In the same connection it is stated in Grand Lodge A. O. U. W. v. Lachmann, supra: “it is settled in this state that the relation of subordinate lodges to the grand lodge in societies of this kind, is that of agency.”

Appellant complains that the fifth instruction, offered by it, which stated, if the jury found that the recorder of the lodge did not have any knowledge that Taylor was engaged in a prohibited occupation, and that he did not comply with his contract of insurance, as alleged in the declaration, they should find for appellant, was improperly modified by the court by striking out the word “recorder” and inserting in lieu thereof, the phrase “local council and some of the officers.” In view of the law in reference to the relation between subordinate lodges and the principal lodge above stated, and under the facts in this case as shown by the evidence, the modification of said instruction was not erroneous.

Appellant’s eighth refused instruction told the jury there could be no waiver of the conditions of the policy, forfeiting the same, unless appellant intended to waive the forfeiture clause. This instruction was properly refused as it deprived the jury of the right of finding a waiver of forfeiture from the acts of appellant through its subordinate lodge and officers and from the circumstances surrounding the case.

We find no substantial error committed by the court in regard to the instructions and upon the whole the jury seem to have been fairly and fully instructed upon the law governing the case.

The judgment of the court below will be affirmed.

Affirmed.


text:
    Libbie C. Wolf, Appellee, v. City of Venice, Appellant.
    1. Verdicts—when not excessive. In an action on the case for personal injuries, a verdict for $833.67 is not excessive, where it appears that the plaintiff at the time of her injury was a little under fifty-six years of age, and in addition to doing her housework did, at the time of the injury, sewing for other people—it appearing that the .injuries in question were severe as to the plaintiff’s foot, ankle and side, and resulted in disablement for a considerable period and much suffering.
    2. Notices—when service sufficient under act in regard to personal injuries against cities, etc. Delivery of the notice in form as required by the statute to the city clerk upon the premises on which his office was situated, informing him of the contents thereof, is a sufficient compliance with the statute as to service.
    3. Instructions—must not single out particular witness. An instruction is properly refused which singles out a particular witness and tells the jury what they may consider in determining the weight to be given to his testimony.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    E. J. Brown and Geers & Geers, for appellant.
    J. M. Bandy and D. J. Sullivan, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the conrt.

Appellee, Libbie 0. Wolf, sustained injuries on September 18, 1907, by stepping on the loose end of a board in a sidewalk of the city of Venice, where she lived, which turned with her and allowed her foot to go down in a hole. She brought suit against the city and obtained a verdict and judgment for $863.67. The city seeks to reverse the judgment upon the grounds, the evidence was not sufficient to support the verdict, the damages were excessive, no notice of the injury, as required by law, was filed within six months of its occurrence with the clerk of the city, and certain instructions offered by appellant were improperly refused.

The house where appellee resided in Venice was located on the north side of the street, and along a fence in front of it was a sidewalk running east and west, seven boards in width, composed of two inch planks 16 feet long and 12 inches wide, resting on “4 x 4” cross pieces. At about three o’clock in the afternoon of the day above named, appellee passed out the front gate and started east on said walk. She had proceeded about 20 feet when she stepped on a loose plank and received the injuries complained of.

It is not denied that appellee was injured as claimed and that her injuries were caused by the loose plank, but the question is raised whether the defect should have been discovered and remedied by the city. The injury occurred on Wednesday and there was proof that the board had been found to be loose on the preceding Sunday, and on Monday at six o’clock p. m., it was found lying across the sidewalk. Witnesses for the city, including a policeman who walked that beat, and two city officials whose duty it was to inspect and repair sidewalks, testified they had passed over the walk at the place in question and did not discover any defect. The evidence as a whole, however, appears to sustain appellee’s claim that the plank had been loose since sometime on the preceding Sunday, that it was sometimes in its place in the walk and sometimes out of it, and that the defect was not a latent one but open and easily discoverable. Such facts warranted a finding by the jury that the city should in the exercise of reasonable care have discovered and repaired the defect in the walk.

At the time of her injury, appellee was a little under 56 years of age and in addition to doing her housework did sewing for other people. When the board turned with her she was thrown on her right side and received severe injuries to her foot, ankle and side. For several months she was not able to perform her household duties and it was six months before she could bear any weight on the heel of the injured foot. At the time of the trial, some 15 months after the injury was received, her ankle was still swollen and she was suffering pain from it. Under these circumstances we cannot say the verdict was so excessive as to warrant a reversal of the judgment based theron.

The act in regard to personal injury suits against cities, villages and towns (Hurd Stat. 1908, chap. 70, par. 7) provides that, “Any person who is about to bring any action or suit at law in any court against any incorporated city, village or town for damages on account of any personal injury, shall within six months from the date of injury, or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney, (if there is a city attorney and also in the office of the city clerk), a statement in writing signed by such person, his agent or attorney,” giving certain information concerning the injury. Upon the trial a copy of a notice which fully complied with the terms of the statute was offered in evidence by appellee and admitted by the court.

Appellant’s principal contention in this case is that the court erred in admitting the copy of the notice for the reason that the preliminary proof introduced when the copy was offered, showed that the notice was not filed in the office of the city clerk. The only proof on this subject was the testimony of the husband of appellee, who swore that as her agent he delivered the notice to the city clerk; that said clerk was a saloon keeper and had his office in his saloon; that witness went to the saloon and found the clerk out in the yard back of the same feeding his chickens; that he there delivered the notice to the clerk, telling him the contents thereof and the two then engaged in some conversation concerning the matter.

There is no doubt that had appellee’s husband and the clerk stepped into the saloon and the notice been there delivered, the requirement of the statute would have been fully complied with. As a matter of fact the delivery was made to the clerk upon the same premises upon which the saloon was situated and he was fully informed of the contents of the notice and the same was the subject of remark by him. It appears to us that the circumstances surrounding the delivery were such as to show for all practical purposes a delivery of the same to the clerk at his office.

Instruction 9 offered by appellant was properly refused because it singled out the husband of appellee as a witness and told the jury what they might consider in determining the weight to be given to his testimony. Appellant’s refused instruction No. 14 submitted to the jury the question whether appellee’s notice had been filed in the office of the city clerk.

There was no controversy as to the facts concerning the delivery of the notice, the only question being whether these facts constituted a compliance with the statute, which was not a question for the jury.

We find in the record no substantial reason for reversing this case and the judgment will accordingly be affirmed.

Affirmed.