author: Mr. Justice Boggs

text:
    Henry C. Wahlmann, Administrator of the Estate of Victor Hahn, Deceased, Plaintiff, v. C. Becker Milling Company, Defendant.
    1. Master and servant, § 120

      —when superintendent of mill under no duty to install guards for machinery. A superintendent in charge of machinery, in a mill, and who is injured, does not incur a penalty under the Act of 1909 (J. & A. K 5386 et seq.), relating to the health and safety of, employees, for failure to install guards for machinery which he had not been directed by the master to place therein where the master was actively participating in and managing the business of the going concern, as the duty to install the machinery primarily lies upon the master.
    2. Master and servant, § 302a*—when assumed rislc by servant no defense. In an action to recover for the death df plaintiff's intestate while “doping” an unguarded pulley belt while it was in motion, the fact that deceased may have been negligent and assumed the risk of working at the machinery without guards does not relieve the employer from doing what is required of him by the Act of 1909 (J.i & A. If 5386 et seq.), relating to the health and safety of employees, or relieve him from the penalty of the withdrawal of the defenses of contributory negligence and assumed risk.
    3. Master and servant, § 430*—when defense of contributory negligence unavailable. The defense of contributory negligence of a servant is no defense to an action for injuries to an employee due to a violation of the statutory duty imposed by the Act of 1909 (J. & A. If 5386 et seq.), to guard machinery.
    4. Master and servant, § 302a*—how act relating to health and safety of employees construed. The Act of 1909 (J. & A. If 5386 et seq.), relating to the health and safety oí employees, is to be given the same construction as the Miners’ Act (J. & A. K 7475 et seq.), as to the defenses of assumed risk and contributory negligence.
    5. Mines and minerals, § 117*—when defense of assumption of rislc unavailable. Assumed risk is unavailable as a defense in a suit for damages caused by a wilful violation of the Miners’ Act (J. & A. If 7475 et seq.).

    6. Mines and minerals, § 125*—when contributory negligence no defense. Contributory negligence is unavailable as a defense in a suit for damages caused by a wilful violation of the Miners’ Act (J. & A. K7475 et seq.).

      7. Master and servant, § 706

      —when question whether injured employee was such superintendent as to he deprived-.of benefits of aet relating to safety of employees is for jury. The fact that a mill superintendent was receiving wages and not only looking after machinery hut performing work which required him to pass near tho machinery which injured him is such evidence that he was an employee that a court cannot say as matter of law that he was at the time such a superintendent as would deprive him of the benefits of the act of 1909 (J. & A. If 5386 et seq.), relating to the health and safety of employees.
    8. Master and servant, § 706*—when question whether injured superintendent was an employee entitled to benefits of act for safety of employees is for jury. The question whether a mill superintendent who, when injured, is performing work as well as looking after machinery is an employee within the meaning of the Act of 1909 (J. & A. 1f 5386 et seq.) is a question of fact for the jury under the instructions of the court.
    9. Master and servant, § 171*—what does not constitute repairing of machinery. “Doping” pulley belts, in order to keep them from slipping, is not “repairing” them within the meaning of section 1 of the Act of 1909 (J. & A. j[ 5386), relating to the health and safety of employees, providing that “no repairs shall be made to the active mechanism or operative part of any machine when the machine is in motion.”
    10. Words and phrases, — word “repair” defined. The word “repair” means “to restore to a sound or good state after decay, injury, dilapidation or partial destruction.”
    11. Master and servant, § 716*—when question whether necessary to stop machine before doping belts for jury. In an action to recover for the death of plaintiff’s intestate as a result of injuries sustained while “doping” an unguarded pulley belt while it was in motion, it is a question of fact for the jury, under proper instructions, whether in the practical operation of the particular machinery it was necessary to stop the machine before applying the “dope.”
    12. Master and servant, § 158*—when necessary to guard machinery in mill where pulley belts “doped” in action. Under section 1 of the Act of 1909 (J. & A. If 5386 et seq.), requiring that “all dangerous places in or about * * * mills * * * near to which any employee is obliged to pass, or to be employed shall, where practicable, be properly inclosed, fenced or otherwise guarded,” where it is not necessary that machinery be stopped before applying “dope” to pulley belts to prevent their slipping, such machinery must be guarded or fenced so as to offer the least possible chance for injury to those operating it.

      13. Master and servant, § 501

      —when failure of servant to stop machinery to dope belts no defense. In an action to recover for the death of plaintiff’s intestate as a result of injuries sustained while “doping” an unguarded pulley belt while it was in motion, an employer is not allowed to defend on the ground that deceased should have stopped the machinery before “doping” the belt, although section 1 of the Act of 1909 (J. & A. If 5386 et seq.), relating to the health and safety of employees, provides that “no repairs shall be made to the active mechanism or operative part of any machine when the machine is in motion.”
    14. Master and servant, § 795*—when instruction that if deceased is superintendent of mill no recovery could be had properly refused. In an action to recover for the death of plaintiff’s intestate as a result of injuries sustained while “doping” unguarded pulley belts while they were in motion, an instruction that if deceased was the head miller or superintendent of defendant’s mill he could not recover, is properly refused where his management is subject to the control of the operators of the mill and where it was also part of his duties to work in the mill as a miller, in which case deceased is not deprived of the benefit of the Act of 1909 (J. & A. jf 5386 et seq.), relating to the health and safety of employees.
    15. Master and servant, § 797*—when instruction on assumed rislc properly refused. In an action to recover for the death of plaintiff’s intestate as a result of injuries sustained while “doping” a pulley belt while it was in motion, an instruction presenting the question of assumed risk is properly refused, since such defense is taken away from the employer by the Act of 1909 (J. & A. If .5386 et seq.).

    16. Master and servant, § 800*—when instruction that if guards insufficient to protect deceased no recovery could be had properly refused. In an action to recover for the death of plaintiff’s intestate as a result of injuries sustained while “doping” an unguarded pulley belt while it was in motion, an instruction that if the guards mentioned in the instruction would have been insufficient to protect deceased while so engaged plaintiff could not recover is properly refused, such instruction practically informing the jury that they must find for defendant unless the guards would furnish absolute protection to those working around the machinery.
    17. Master and servant, § 130*—when master may not delegate duties. The duties imposed, by the Act of 1909 (J. & A. 1f 5386 et seq.), relating to the health and safety of employees and the guarding of machinery, cannot be delegated by the employer.
    18. Master and servant, § 800*—when instruction that danger from machinery must be entirely eliminated properly refused. In an action to recover for the death of plaintiff’s intestate as a result of injuries sustained while “doping” an unguarded-pulley belt while it was in motion, an instruction requiring that danger from the machinery be entirely eliminated is properly refused under the Act of 1909 (J. & A. 1Í 5386 et seq.), relating to the health and safety of employees, in that such instruction ignores the question of the practical operation of the machinery.
    19. Masteb and servant, § 800

      —when instruction defining meaning of “dangerous machinery” properly refused. In an action to recover for the death of plaintiff’s intestate as a result of injuries sustained while “doping” an unguarded pulley belt while it was in motion, instruction attempting to define the meaning of “dangerous machinery,” as used in the law, and also calling the attention of the jury to the question of deceased’s having worked around the machinery for five years, is erroneous and is properly refused.
    20. Instructions, § 81*—when instruction emphasising facts properly refused. An instruction calling attention to particular facts is erroneous, and is properly refused.
    Appeal from the Circuit Court of Randolph county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Rehearing denied April 5, 1916.
    Lashley, Bollinger & Horner, for appellant.
    A. E. Crisler and A. D. Riess, for appellee.

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

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

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

This case was before this court at its March Term, 1914, and is reported in volume 188 Appellate Reports at page 381. On the former hearing, said cause was reversed and remanded on the ground that the trial court erred in taking the case from the jury and entering judgment against appellee for costs.

On the subsequent trial a verdict for $6,000 was returned by the jury and judgment rendered thereon, from which judgment this appeal is prosecuted.

The opinion rendered on the former hearing contains a pretty complete statement of the facts in connection with said injury and they need not be restated at length. At the former hearing in this court, one of the principal contentions urged by appellant why appellee should not recover in this suit was because it was claimed that appellee was acting as superintendent of appellant’s mill at the time of his injury, and that therefore under the law, it was his duty as such superintendent to see that the machinery in question was properly guarded; and that his failure to do so would bar his administrator from a recovery for his death.

This question was gone into fully on the hearing at that time and our views on this question are fully set out in the opinion. We there said: “It is said by counsel for defendant that the cost of repairing or placing of guards over these pulleys would be but a trifle and that the deceased could easily have placed such guards, and that by his failure so to do he became liable for a penalty. We do not believe that a person in charge of the machinery, taking care of it, as the deceased was, would incur a penalty for failure to install machinery that he had not been directed by the master to place therein when the master was actively participating in and managing the business of the going- concern. This duty primarily rested upon Becker. The theory that the plaintiff cannot recover because of his failure or neglect to place the guards upon the machinery must be based upon the principle that although he may have been an employee, as he certainly was, he was guilty of negligence and assumed the risk of working with the machinery without guards. But, if this were true, it would not excuse the defendant from doing what the law requires of him, and the penalty imposed upon the defendant is to withdraw from it the defense of contributory negligence and assumed risk. The Supreme Court of this State seems to construe this act the same as the Mining Act, for it says, in the ease of Streeter v. Western Wheeled Scraper Co., 254 Ill. 257, 1 N. C. C. A. 828: ‘For many years we have held, in the construction of the Mining Act, that neither assumed risk nor contributory negligence is available as a defense to a suit for damages caused by a wilful violation of the provisions of that act. Bartlett Coal & Mining Co. v. Roach, 68 Ill. 174. * * * This law was passed to protect employees, and in view of the construction given to the Mining Act in regard to the assumption of risk, the General Assembly must have supposed that the same construction would be given to this act in that regard.’ Waiving the question as to the effect that the neglect of the deceased to place guards upon these pulleys would have upon the right of action for his injury, and the limiting of the right of defense of the defendant, yet the evidence shows he was receiving wages and not only looking after the machinery but was performing work, and performed such work as required him to pass near these pulleys, and there was at least evidence tending to show that he was an employee, and the evidence was not of that character that would warrant a court in saying that as a matter of law he was such a superintendent as would deprive him of the benefits of the statute. We think the case should have been submitted to the jury.” This question is now sought to be reopened by appellant through its instructions, but we do not deem it necessary to again go into this question as ye believe it to be one of fact for the jury under the instructions of the court.

Appellant also urges as ground for the reversal of said judgment, first, that “doping” the belts in order to keep them from slipping was, under the provision of the statute, the making of repairs, and that it was the duty of appellee’s intestate to stop the machinery for said purpose; second, that the guards suggested by plaintiff’s witnesses would not protect employees passing or working near the dangerous machinery; in other words, that they were not such guards as the statute contemplated.

First: The first section of the act entitled “An Act to provide for the health, safety and comfort of employees in factories, mercantile establishments, mills, and workshops in this State,” passed by the Legislature in 1909, provides among other things that “All dangerous places in or about mercantile establishments, factories, mills or workshops, near to which any employee is obliged to pass, or to be employed shall, where practicable, be properly inclosed, fenced or otherwise guarded. No machine in any factory, mercantile establishment, mill or workshop, shall be used when the same is known to be dangerously defective, and no repairs shall be made to the active mechanism or operative part of any machine when the machine is in motion.” (J. & A. 5386.)

It is urged by appellant that the provision “no repairs shall be made to the active mechanism or operative part of any machine when the machine is in motion” would apply to the “doping” of the belt as was testified to in this case; that when the deceased, Victor Hahn, was doping the belt he was repairing the machine, and was therefore violating the statute above referred to which prohibits making repairs when the machine is in motion.

We do not believe that such things as oiling machinery, or doping belts to prevent their slipping, has ever been called or classified as repairs by mechanists. The definition given by Webster for the word “repair” is: “To restore to a sound or good state after decay, injury, dilapidation or partial destruction.” We think it must be held that the Legislature in using the word “repair” gave to it its ordinary meaning.

Second: It is contended by appellant that under the provisions of the Statute of 1909 (J. & A. 5386), requiring “All dangerous places in or about mercantile establishments, factories, mills or workshops, near to which any employee is obliged to pass, or to be employed shall, where practicable, be properly inclosed, fenced'or otherwise guarded,” requires that machinery of the character of the “Nordyke roll” and “Allis roll” in appellant’s mill shall be entirely inclosed.

It was urged by appellant that if the machinery were inclosed that then before the belts mentioned could be doped, it would be necessary to remove the covering from the machinery, and that if this were done appellant would not be required to otherwise guard the machinery. In other words, it is urged by appellant that the machinery in question should be' entirely covered, and that before the belts could be “doped” this covering must be removed, and, 'when removed, the machinery would be in the same condition it was in at the time appellee’s intestate was injured.

It is, therefore, argued that it cannot be said that the failure to guard or protect the machinery in question was the proximate cause of the injury to appellee’s intestate. Appellant also contends that in the practical operation of said machinery, said machinery should be stopped when the “dope” is to be applied.

On the other hand, appellee contends that in order for the practical operation of appellant’s mill, it was necessary that the “dope” should be applied to the belts to keep them from slipping while in motion; that to require the machinery to be stopped every time the “dope” was applied would greatly retard the operation of the mill.

Appellee also contends that it is practicable to fence or guard the machinery in question in such a manner as to allow the doping of the belts while in motion with the danger to the person so applying said dope greatly reduced. The evidence offered by appellee tends to prove that the machinery in question could be so guarded, fenced or protected as to allow the doping of the belts in question with a minimum of danger to the person applying the “dope.” We are inclined to hold that under the evidence in this case it was a question of fact for the jury under the instructions of the court to say whether in the practical operation of the machinery of appellant it was necessary to stop the machinery before applying the dope in question. If it should be held that the machinery should not be so stopped, in its practical operation, then it follows as a legal conclusion under the statute that the machinery should be so guarded or fenced as “to offer the least possible chance for injury to those operating it.” (Paragraph 1, sec. 31, of act above cited [J. & A. 115416].)

It should also be borne in mind that as the machinery was in fact operated by - appellant, it was one of the duties, of appellee’s intestate to apply the “dope” to the belts when the machine was in motion, and we do not believe that appellant should now be allowed to say that appellee’s intestate should have stopped the machinery before so applying the same.

Appellant objects to certain of the instructions given by the trial court on behalf of appellees. However, in its argument it practically admits that there is no serious error in these instructions under the holding of this court on the former hearing of this cause. We have examined the instructions offered on behalf of appellee, and find no serious objection to them, as we think they present the law fairly to the jury in keeping with our former holding in this case, and in keeping with what we have said in this opinion.

Appellant offered on the trial thirteen instructions, all of which were refused by the trial court, and for the refusal of which appellant assigns error. Instructions one, two, three, six, seven, eleven and twelve presented appellant’s theory of the case and the law governing the same. But each of these instructions appellant, in effect, concedes do not state correct principles of the law if the former holding of this court is correct. It is, therefore, unnecessary to give these instructions any further notice, as none of them, in our judgment, correctly state the law governing this case as it was laid down in our former opinion.

The fourth instruction informs the jury as a matter of law that if appellee’s intestate was the head miller or superintendent of the mill that then he could not recover, which would be squarely against our former holding in this case.

Appellant’s fifth instruction presents the question to the jury of assumed risk, which was clearly erroneous, as under the law governing this character of case the doctrine of assumed risks has been eliminated.

Instruction No. 8 informs the jury that if they believe from the evidence that the guards mentioned would be insufficient to protect deceased from injuries he might receive while working around the machinery, “doping” the belts, etc., that then they should find the issues for the defendant. We believe there was no error in refusing this instruction, as it practically informed the jury that they must find for the defendant, unless the guards would furnish absolute protection to those working around the machinery.

Instruction No. 9 submits to the jury the question of delegated authority with reference to the guarding of the machinery by the appellant. We understand from the opinion in the Streeter v. Western Wheeled Scraper Co. case, supra, this authority cannot be delegated. There was, therefore, no error in refusing this instruction.

Appellant’s tenth instruction submits to the jury the question of the guarding or protecting of the machinery in question. This instruction would probably be good were it not for the fact that it, in effect, requires that the danger from the machinery must be entirely eliminated, without reference to the question of the practical operation of said machinery, and for this reason we do not believe that the refusal of this instruction was error.

Instruction No. 13 attempts to define what in law constitutes “dangerous machinery,” and then calls the attention of the jnry to the question of appellee’s intestate having worked around said machinery for five years as evidence to show said machinery was not dangerous. There was no error in refusing this instruction.

Finding no reversible error in the record, the judgment of the trial court should be and is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    Melchior Leipold, Appellant, v. Elbert Epler, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Edwards county; the Hon. William H. Green, Judge, presiding. Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Rehearing denied April 5, 1916.
    Statement of the Case.
    Action by Melchior Leipold, plaintiff, against Elbert Epler, defendant, in the Circuit Court of Edwards county, to recover on a contract contained in a deed whereby defendant was alleged to have ássumed the payment of certain mortgages. From a judgment for defendant, plaintiff appeals.
    It appeared that plaintiff was the owner of land situated near the Saline River in Saline county, Illinois, upon which there were three mortgages, one for the amount of $4,000, one for $3,000 and one for $8,000, for which plaintiff was liable, either by having executed the notes secured by the mortgages, or by having assumed the payment thereof.
    On May 17, 1913, plaintiff sold and conveyed the land to the defendant for a nominal consideration of $25,550, and conveyed it to defendant by warranty deed. The deed making the conveyance contained the following statement: “The covenants of warranty in this deed contained are made subject to the mortgages on said land * * *; and the accumulated interest on each of the above, which the grantee herein assumes and agrees to pay.”
    The sale of this land was effected by one Gould, a cousin of defendant. Defendant’s testimony tended to show that Gould was acting as the agent of plaintiff in the consummation of this deal, and that he received a commission therefor, while the testimony of the plaintiff and Gould was that Gould did not at any time act as such agent. It further appeared that upon the first efforts of Gould to trade with defendant he was unable.to consummate a deal, and that he thereupon entered into a partnership with defendant for the purpose of purchasing this land. The testimony showed that defendant reposed great confidence in Gould, both in his integrity and judgment, and after the arrangement was made defendant left the matter entirely to Gould, and did not even go to see the land. Gould represented that it was a fine piece of corn land; that four hundred acres of it was in a high state of cultivation ; that three hundred acres had the stumps taken out; that it overflowed only in times of very .high water; that there were no sloughs in it; that the Saline River ran into it just enough to drain it good; that the improvements were good; that it always grew good corn and was worth $50 an acre; and that the plaintiff paid $50 an acre for it. Gould closed the deal with plaintiff, but there was no evidence of any agreement having been made to assume the mortgages previous to the making of the deed, when plaintiff inserted therein the clause assuming said mortgages, and Gould then sent the deed to defendant who retained it and did not record'it for the reason, as he said, that Gould was his partner and that his name was not in the deed as grantee. Gould then informed the defendant that a man named Turrentine desired to purchase the land, and that it could be traded to him for $30,000 by taking some property in Kansas City and other places, and that Gould said he knew the property and that it was good, and Gould also said to defendant: “The deed is made to you, I admit that, but I will have a half interest in the land and rather than make another deed, you go ahead and do it as it was and I expect to get part of the property you were trading for.”
    It further appeared that a deal between Gould and Turrentine was consummated upon the judgment of Gould, and on the next day after this deal had been closed and the deed made, the deed from plaintiff to defendant was recorded. It further appeared that the property taken from Turrentine was of no value, and that the property secured by plaintiff from defendant, in addition to the assuming of the said mortgages, was of the value of about $4,800, and that the Saline county land was of an inferior quality, not in a good state of cultivation, and worth very much less than it had been represented.
    It further appeared from the evidence that a year or so from the time of the making of the deed by plaintiff to defendant that some of the principal and interest became due upon the mortgages referred to in the deed, and were not paid by the defendant, so plaintiff proceeded to pay off one principal note and several interest notes, amounting in all to about $2,780.
    The declaration consisted of several special counts and the common counts, but each and all of them are based upon the foregoing clause assuming the mortgages as set forth in the deed made by the plaintiff to defendant.
    Defendant filed the plea of general issue, to which he attached a notice of special matters in defense: First, denying that the deed containing such clause was ever accepted by him, or that he assumed and agreed to pay the mortgages; second, that the transaction through which the deed containing the clause was obtained and had been effected through the fraud and circumvention of Gould, as agent of the plaintiff, and that the deed was fraudulently .made to defendant, and that because of the fraud connected with the sale the contract sued on was void; and third, that the defendant never did receive any consideration for assuming and agreeing to pay plaintiff’s indebtedness in the declaration mentioned.
    Abstract of the Decision.
    ■ 1. Contracts, § 5

      —what constitutes collateral agreement. A contract to assume an incumbrance on land purchased is not one of the essential parts of a deed of conveyance, and is in fact extraneous and collateral to it.
    2. Mortgages, § 227*—when grantee not bound by recital in deed to pay existing incumbrances. A recital in a deed that the grantee assumes and agrees to pay existing incumbrances on the property conveyed is not, in and of itself, sufficient to fix the liability to pay without proof that such grantee assented to the clause recited.
    3. Estoppel, § 21*—when grantee not estopped by recital of deed. A grantee is not estopped by the recital of a deed which he does not execute.
    4. Deeds, § 29*—when undertaking in deed not enforceable. An undertaking by a grantee recited in a deed is collateral to it, and if the promise fail or be shown to have been the result of fraud or mistake, the undertaking will not be enforced.
    5. Mortgages, § 228*—when fraud defense to agreement to assume incumbrances. Where there is a recital in a deed that the grantee assumes and agrees to pay certain mortgages on the property conveyed and the grantee discovers fraud in the transaction, he is not limited to recoupment or to returning the property and suing for a return of the consideration, but may make use of the fraud to defeat an action by the grantor for breach of the contract.
    Howard P. French, E. B. Green and J. M. Campbell, for appellant.
    H. J. Strawn, Allen E. Walker and P. C. Walters, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

6. Contracts, § 1 —what constitutes simple contract. An undertaking of a grantee recited in a deed to assume and pay incumbrances on the property purchased is a simple contract.

7. Contracts, § 7*—when fraud a defense. Fraud is a good defense to an action on a simple contract.

8. Vendor and purchaser, § 35*—when fraud fatal to title. Fraud practiced by the party seeking the remedy upon him against whom it is sought, and not that which is the subject-matter of the action or claim, is fatal to his title.

9. Principal and agent, § 155*—when principal may not receive benefit of unauthorized act of agent. A principal cannot receive the benefit of unauthorized acts of his agent which are in fact fraudulent.

10. Principal and agent, § 131*—when principal liable for benefits due to unauthorized acts of agent. A principal who has actually received the benefit of money procured by the unauthorized acts of his agent will be liable in the amount he has received the benefit of.

11. Fraud, § 115*—when evidence sufficient to sustain finding that agreement by grantee to assume mortgages was fraudulently procured. In an action by a grantor to recover for breach of an agreement recited in a deed whereby the grantee assumed certain mortgages on the property conveyed, where the defense to the action was fraud and where the evidence was conflicting, evidence examined and held that a finding by the jury that the agreement was procured by a fraudulent scheme concocted by the grantor and his agent was not manifestly wrong.

12. Mortgages, § 226*—when evidence sufficient to sustain finding that grantee did not intentionally assent to agreement to assume incumbrances. In an action by a grantor to recover for breach of an agreement recited in a deed whereby the grantee assumed certain mortgages on the property conveyed, evidence examined and held to warrant the jury in finding that defendant never knowingly and intentionally assented to the contract recited.

13. Fraud, § 133*—when instructions on fraud as defense to contract not erroneous. Instructions framed on the theory that the presence of actionable fraud inducing damage to any extent is a complete defense to an action on a simple contract are not erroneous.

14. Instructions, § 118*—when instruction on effect of fraudulent representations by agent of vendor in procuring agreement to assume incumbrances not erroneous. In an action to recover for breach of an agreement recited in a deed whereby the grantee assumed certain mortgages on the property conveyed, where the defense was that the agreement was procured by a fraudulent scheme concocted by plaintiff and his agent, an instruction relative to the effect of the fraudulent representations of plaintiff’s agent in pursuance of the scheme is not erroneous although there is no direct evidence that plaintiff had anything to do with that portion of the scheme to which the representations related, if there is evidence that plaintiff and his agent were co-operating generally in the transaction by which plaintiff was defrauded.

Boggs, J., dissenting.


author: Mr. Presiding Justice Higbee

text:
    E. L. Brown, Appellee, v. John L. Paraham Hat Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 592

      —when motion for new trial prerequisite to review. In a jury trial the errors relied on for reversal must be brought to the notice of the trial court by a motion for a new trial so that they may be there corrected.
    Appeal from the Circuit Court of Pope county; the Hon. Warren W. Duncan, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action of attachment by E. L. Brown, plaintiff, against the John L. Paraham Hat Company, defendant, in the Circuit Court of Pope county, to recover for salary. From a judgment of $93.75 for plaintiff, defendant appeals.
    George B. Baker, for appellant.
    W. H. Moore and Charles Durffe, for appellee.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

2. Appeal and ebbob, § 863 —what does not constitute part of record. Matters copied into the transcript by the clerk and not certified to by the judge are not part of the record on review.

3. Appeal and ebbob, § 592*—what grounds for reversal considered. No grounds of reversal other than those set out in the motion for a new trial will be considered in reviewing the judgment of the trial court.

4. Appeal and ebbob, § 800*—when hill of exceptions must contain motion for new trial. The only way in which the Appellate Court can properly learn whether or not the reasons for a motion for a new trial are set out in the motion is through the bill of exceptions.

5. Appeal and ebbob, § 1339*—when presumed that trial court properly overruled motion for new trial. Where the grounds on which a motion for a new trial is based do not appear in the bill of exceptions, it is to be presumed that the trial court properly overruled the motion.

6. Appeal and ebbob, § 1303*—when presumed that evidence sufficient to support verdict and judgment. Where the grounds of a motion for a new trial do not appear in the bill of exceptions, it must be presumed that the evidence is sufficient to support the verdict and judgment.

7. Appeal and ebbob, § 1313*—when presumed that remarles of trial court did not affect verdict. Where objection is made to remarks of the trial court alleged to be prejudicial, and such remarks do not appear in the bill of exceptions, it will be presumed that the remarks complained of did not affect the verdict.

8. Master and servant, § 84*—when evidence sufficient to sustain verdict in action for salary. In an action to recover for salary, where the evidence was conflicting, a verdict for plaintiff held sustained by the evidence.


text:
    The People of the State of Illinois for use of Edward Gobin, by Elizabeth Gobin, Appellee, v. Thomas May, Jr., et al., Appellants.
    1. Bonds, § 11

      —What constitutes a statutory surety bond. A statutory bond signed only by a nonresident surety is not a bond with security.
    2. Clerks of courts, § 6*—when order confers no authority to approve a nonresident surety on appeal bond. The order of a judge of the Circuit. Court fixing the amount of an appeal bond “with surety to be approved by the clerk of said court” is equivalent to an order authorizing the clerk to approve a surety resident in this State, or authorized by statute to become such surety, and confers no authority to approve a nonresident surety.
    3. Clerks of courts, § 6*—what constitutes breach of official duty by Circuit Court clerh. The action of a clerk of the Circuit Court in approving an appeal bond signed only by a nonresident surety is a breach of official duty, although the order of the judge fixing the amount of the bond provided that it should be “with surety to be approved by the clerk of said court.”
    4. Clerks of courts, § 6*—what is nature of duty of clerh of Circuit Court in approving surety on.appeal bond. The duty of a clerk of the Circuit Court in approving the surety on an appeal bond is ministerial, although in performing such duty the clerk may be required to ascertain whether the proposed surety is a resident of this State.
    5. Venue, § 21*—When verification of petition for change of venue insufficient. A petition for a change of venue signed by several defendants but verified by but one of them is insufficient under section 3 of the Venue Act (J. & A. If 11,489), requiring that every such petition “shall be verified by the affidavit of the applicant.”
    6. Pleading, § .45*—When addition of different causes of action does not affect declaration. The fact that other and different causes of action may have been added to a declaration will not disturb any good and sufficient cause of action originally stated and adhered to and not abandoned.
    7. Limitation of actions, § 20*—when action against Circuit Court clerh for negligence in approving surety on appeal bond accrues. An action against a clerk of the Circuit Court for negligently approving an improper surety on an appeal bond accrues when the judgment of the Appellate Court affirming the judgment appealed from is made final.

      8. Courts, § 79

      —when Appellate Court may not consider jurisdiction of Supreme Court on review. The question whether the Supreme Court has jurisdiction to review on certiorari a judgment of the Appellate Court is not a proper matter of consideration for the latter court.
    9. Evidence, § 241*—when copies of bonds of Circuit Court clerks deposited with Secretary of State admissible. Section 7 of the Secretary of State Act (J. & A. j[ 10,541), providing that “copies of all bonds, papers, writings and documents, legally deposited in the office of the Governor or Secretary of State, when certified by the Secretary of State and authenticated by the seal of his office, shall be received in evidence in the same manner and with like effect as the original,” is broad enough to permit copies of bonds of Circuit Court clerks deposited with the Secretary of State to be received in evidence the same as the original when authenticated by the seal of the office of the secretary.
    10. Evidence, § 241*—what is basis for rule for admission of authenticated copies of bonds filed with Secretary of State. One of the objects of section 7 of the Secretary of State Act (J. & A. If 10,541), providing for the admission in evidence of authenticated copies of bonds deposited with the Governor or Secretary of State with like effect as the originals, is to safeguard the bonds by keeping them on file in the office of the secretary and to obviate the necessity of removing them to be used as evidence upon the trial of cases whereby they might become lost or misplaced.
    11. Judgment, § 170*—when not reversed for informalities. A judgment will not be reversed for informalities not essential to its validity if it contains all the necessary elements of a valid judgment.
    12. Process, § 86*—when amendment of summons may be made. The amendment of a summons by increasing the amount of the ad damnum is of form and not of substance and may be made at any time, even after verdict.
    13. Appeal and error, § 1575*—when rendition of judgment for amount greater than ad damnum stated in summons harmless error. A judgment will not be reversed because it is for an amount greater than the ad damnum stated in the summons where at the time of filing the summons the amount of the ad damnum was sufficient to cover plaintiff’s claim as it then stood, the excess being interest accruing in the meantime, and where the fact was not called to the attention of the trial court, it being presumed that the trial court would readily have granted an amendment to cure the defect.
    Appeal from the City Court of East St. Louis; the Hon. William M. Vandeventer, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Charles P. Wise and Fred B. Merrills, for appellants.
    C. H. Burton, for appellees.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This case, which in different phases, has been twice in this court before, arises out of the following facts and circumstances: On November 4, 1890, Edward Gobin, a child between five and six years of age, was injured by an engine of the Louisville, Evansville 6 St. Louis Consolidated Railroad Company in East St. Louis. On June 1, 1893, he obtained a judgment against said railroad company for $3,000. An appeal was prayed from this judgment to the Appellate Court and the bond was fixed by the court at $3,500 with “surety to be approved by the clerk of said court.” Thomas May, Jr., was clerk of the court and approved the bond with D. J. Mackey, the president of the railroad referred to, and a nonresident of Illinois, as sole surety. Appellee’s judgment was affirmed against the railroad by the Appellate Court on March 23, 1894. [See 52 Ill. App. 565.] During the pendency of the appeal, the railroad company became insolvent and went into the hands of receivers. A petition was filed for Edward Gobin in the United States court in an attempt to have the judgment paid out of the property of the railroad company in the hands of the receivers but the same was denied and the petition dismissed. On February 22,1897, judgment was obtained against said D. J. Mackey as surety on the appeal bond at his place of residence, Evansville, Indiana, and execution was afterwards issued thereon and returned unsatisfied, there being “no property found” upon which levy could be made. On November 20, 1900, suit was commenced against said Thomas May, Jr. and Thomas Burke, Joseph A. Kurrus and Albert M. Meints, the bondsmen, on his official bond as clerk of the Circuit Court, by appellee, to recover damages for the failure of duty by the clerk in approving the bond. That suit was dismissed February 7, 1903. On February 12, 1904, this suit was begun between the same parties as the one last referred to and for the same purpose, in the City Court of East St. Louis. A demurrer was filed to the declaration and sustained. An amended declaration was then filed to which a demurrer was also sustained. Appellee elected to abide "the declaration and judgment was entered against him for costs. On appeal to this court it was held that the declaration stated a cause of action and the judgment of the trial court was reversed and the cause remanded. People for use of Gobin v. May, 133 Ill. App. 139. The declaration to which the demurrer had been sustained contained three counts, which are recited at some length in the opinion. This court there held that the demurrer was properly sustained as to the first count but should have been overruled as to the second and third. The second count above referred to had alleged that the clerk took Mackey, who was a nonresident of the State and wholly insolvent, as sole surety without requiring him to qualify as surety and in utter disregard of his duties as clerk, and the third count was substantially the same, but alleged that, the clerk well knowing that Mackey was insolvent and a nonresident of the State of Illinois and not a suitable or sufficient surety took him as sole surety on said appeal bond. After the case was redocketed in the City Court, appellee withdrew the second and third counts and filed an amended declaration containing only one count. A demurrer was again sustained to this declaration, appellee abided by the declaration and judgment was entered against him for costs and in bar of his action. Appellee again appealed his ease to this court which affirmed the judgment of the court below, holding the one count to be identical with the first count of the former declaration, which had not been approved. People for use of Gobin v. May, 158 Ill. App. 596. Thereafter, the Supreme Court on petition of appellee granted a writ of certiorari, reviewed the case, reversed the judgment of the Appellate and City Courts and remanded the case. People v. May, 251 Ill. 54. That court in its opinion states: “The single count of the amended declaration did not aver that the surety, at the time he was accepted, was insolvent or had not property of such value that he could be compelled to respond to the amount of the bond, but the averment is that the clerk did not make due inquiry and use proper means to ascertain the qualification and financial standing of the surety and to ascertain the amount of his property, and that without properly informing himself he ‘ carelessly and negligently accepted the said D. J. Mackey, a nonresident of the State of Illinois, as aforesaid, and wholly insufficient as surety upon said appeal bond, as sole surety thereon.’ The insufficiency of the surety therefore seems to be based, not upon his want of property, but upon his nonresidence.” It was there also held that: “So far as the courts of this State are concerned, a bond signed only by a nonresident surety is not a bond with security. The order of the court to the clerk to approve the security offered on the bond was equivalent to an order authorizing the clerk to approve a surety resident in this State or authorized by statute to be a surety upon such bond. The order conferred no authority upon the clerk to approve a nonresident surety, and his act in doing so was a breach of his official duty. * * * The question committed to the judgment of the clerk was the sufficiency of the security. The law, as we have held, required the surety to be a resident of the State. As to this requirement there was no discretion. The duty of the clerk was fixed and certain, and was therefore ministerial. * * * The fact that the clerk may be required to ascertain whether the proposed surety is a resident of the State does not affect the ministerial nature of his duty.”

After the case was redocketed in the City Court it came to trial on the amended declaration filed October 19, 1914. In this declaration the breach of duty relied on is the same as in the first count of the first declaration demurred to and the only count reviewed by the Supreme Court, that is to say, that the clerk unlawfully and in disregard of his duty approved said appeal bond with D. J. Mackey, a nonresident, as the sole surety. During the course of the litigation and prior to the last trial, Thomas Burke, one of the bondsmen, died and Albert Meints, another bondsman, became bankrupt and received his discharge. The jury found the issues for appellee and that the amount of the bond and debt was $10,000. They further found the amount of damages sustained by appellee against the appellants Thomas May, Jr. and Joseph A. Kurrus to be $6,269.58.

Appellants complain that a petition for a change of venue filed by them was not granted. The petition asked for a change of venue pursuant to the statute, on account of the prejudice of William M. Vandeventer and Robert H. Flannigan, judges of the City Court. The petition was signed by appellants, Thomas May, Jr. and Joseph A. Kurrus, also the bondsman Albert M. Meints, by Fred B. Merrills, their attorney, shortly prior to the discharge of the last-named bondsman in bankruptcy. It purports to have been made by Thomas May, Jr. on behalf of himself and his codefendants Kurrus and Meints and is sworn to by May alone. It does not state that it is made at the request of Kurrus and Meints or with their knowledge or consent. Section 3 of the Venue Act (J. & A. 11,489) provides: “Every application for a change of venue shall be by petition, setting forth the cause of the application and praying a change of venue, which petition shall be verified by the affidavit of the applicant.”

In Eddleman v. Union County Traction Co., 217 Ill. 409, which was a condemnation proceeding, it was held that a petition for a change of venue upon the alleged ground that the judge was prejudiced was properly denied, where only a part of the defendants joined in the petition and the same was not sworn to by one of two defendants who signed it. In Gourley v. Pierce, 182 Ill. App. 609, it was held in a bill to contest a will that an application for a change of venue by one complainant when not joined in or consented to by the other complainants was properly denied. In Tanner v. Clapp, 139 Ill. App. 353, which was a suit in assumpsit, a petition for a change of venue, which stated that the application was made with the consent and on behalf of all the defendants, but which was signed and verified by the defendant only, was held to be insufficient. In view of these authorities, we are of opinion that the court properly refused the petition for a change of venue from the judges of the City Court in this case.

It is earnestly insisted by appellants that this suit was barred by the statute of limitations. The suit which is now pending on this appeal was commenced February 12, 1904, and the judgment of the Circuit Court of St. Clair county, from which the appeal in the original damage suit was taken, was affirmed in the Appellate Court, and made final March 23, 1894. We are of opinion that the cause of action accrued against appellees on the official bond of Mr. May as clerk of the Circuit Court on the date of the affirmance of such judgment. Ten years had not elapsed between the date of the affirmance of the judgment and the commencement of this suit, and unless the original cause of action has been replaced by another and different cause since the commencement of the suit, the statute of limitations has not run. While other and different causes may have been added to the declaration, this would not disturb any good and sufficient cause originally stated and not abandoned but still adhered to. On the first appeal from the original declaration, this court passed upon the sufficiency of the three counts, holding the first count bad and the other two good. On the second appeal we held that the single count there considered was identical with the first count in the declaration on the former appeal, which we had held bad, and the Supreme Court in its opinion in this case above referred to, states in reviewing the declaration: “The insufficiency of the surety, therefore, seems to be based not upon his want of property but his non-residence.” In the declaration as it now stands on this appeal, it is charged that the said clerk unlawfully and in utter disregard of his duty did approve said Mackey as sole surety upon said bond and that said Mackey was then a nonresident of the State of Illinois. It is apparent therefore from the pleadings that the approval by the clerk, of Maekev, who was a nonresident of the State of Illinois, as sole surety on the bond, was charged in each of the declarations and this charge the Supreme Court holds was a good cause of action. Appellants contend, however, that as the bond was approved June 1, 1893, the cause of action then accrued, the statute of limitations then began to run, and as a consequence the ten-year limitation had expired before this action was commenced. But it must be borne in mind that this suit is for damages occasioned to appellee by the unlawful act of the clerk in approving the appeal bond. Had appellee lost his suit on appeal, he would not have been injured and could not have sustained an action notwithstanding the fact that the act of the clerk in approving* the bond was illegal, but it was not until he obtained his final judgment that his rights became fixed and his right of action accrued. If it could properly be held that the right of action in such a case accrues when the bond is approved, then it might also happen that an appellee’s rights would not be fully determined until after the expiration of ten years from the illegal approval of the appeal bond, under which circumstances such an appellee would have no right to bring suit against the clerk for his illegal action, and the purpose for which such bond is required by law would be defeated. We conclude that it must, therefore, be held in reason that appellee’s right of action accrued when his judgment was made final, which was March 23, 1894, and that the statute of limitations did not run against this suit.

Appellant calls in question the right of the Supreme Court to review this case when it was before that body, because as it is claimed the court did not have jurisdiction. Whether or not that court had jurisdiction of the case on certiorari is not a proper matter of consideration for this court, but, if it were, it only need be said in answer to this claim that on a motion filed in the Supreme Court, asking that the final order in this case be recalled, the judgment vacated and the opinion above referred to (251 Ill. 54) be expunged from the record and the remanding order recalled. The court denied the motion, holding that the case was one of which the court had jurisdiction of the subject-matter and that its judgment was final between the parties in this case. Over appellants’ objection, appellee was permitted to introduce in evidence a copy of the bond sued on, certified to by the Secretary of State. Appellants insist that the failure to introduce the bond itself leaves nothing on which to base the judgment, as the copy was insufficient. Section 4 of chapter 25 of our Revised Statutes (J. & A. If 2129) requires that the bond of a clerk of the Circuit Court shall be filed in the office of the Secretary of State. It is provided by section 7, ch. 124, of our Revised Statutes (J. & A. ff 10,541) that: “Copies of all bonds, papers, writings and documents, legally deposited in the office of the Governor or Secretary of State, when certified by the Secretary of State and authenticated by the seal of his office, shall be received in evidence in the same manner and with • like effect as the originals.” It appears to us that this section is sufficiently broad to permit copies of bonds of circuit clerks deposited with the Secretary of State to be received in evidence the same as the original when authenticated- by the seal of the office of the secretary. This is the plain language of the statute, and we know of no reason why it should be departed from. Counsel for appellants state that appellee could easily have brought the Secretary of State or one of his deputies with the original instrument to be introduced on the trial. It is evident, however, that one of the objects of the law is to safeguard these bonds by keeping them on file in the office of the Secretary of State, and to obviate the necessity of removing them to be used as evidence upon the trial of cases and thereby possibly become lost or misplaced. The court below properly permitted the duly certified copy of the bond in question to be introduced in evidence and, when so introduced, it was properly received with like effect as if it had been the original.

Complaint is made by appellants of the form of the judgment entered in this cause which is as follows: “It is therefore considered and adjudged by the court that the plaintiff have and recover of defendants Thomas May, Jr. and Joseph Kurrus the said sum of six thousand two hundred sixty nine dollars and fifty eight cents ($6,269.58), together with the costs by him in this behalf expended, and that execution issue therefor.” While it would have been proper for the court to have followed more in detail the form of the verdict above referred to, yet this judgment shows the relief granted, in whose favor and against whom, the amount of the judgment and that it was rendered by the court. It therefore contains all the necessary elements for a valid judgment and should not be reversed for inf ormalities not essential to its validity. Coats v. Barrett, 49 Ill. App. 275; Minkhart v. Hankler, 19 Ill. 47.

Complaint is also made by appellants of the ruling of the court in regard to the instructions. The instructions given for appellee were not intricate or involved, and appear to state plainly the law in harmony with the holding of the Supreme Court in its opinion in regard to this case above referred to, while the instructions refused on the part of appellants either transgressed the law as there stated or were not in conformity with other rules of law, most of which have been heretofore discussed in this opinion. It is a contention that improper remarks prejudicial to appel-. lants were made by the court in the course of the trial and that counsel for appellee made improper and unfair arguments to the jury, not supported by the evidence. A considerable portion of the briefs of both appellants and appellee are devoted to this question, but a consideration of all the statements referred to leads us to the conclusion that while hasty remarks may have been made by the court and counsel in the course of the trial, there was nothing said that could have prejudiced the jury in the finding of their verdict or could warrant the granting of a new trial on that account.

One of the reasons for a new trial assigned in the motion by appellants in the trial court was that the damages assessed by the jury exceeded the ad damnum. The writ of summons issued stated the debt under the bond at $10,000, and claimed damages in the sum of $5,000. The declaration upon which the case was tried placed the damages at $10,000. It is claimed by appellants with considerable force that the fixing of the larger amount in the declaration is not sufficient but that in order to save the judgment the summons should have been amended. The statement in the motion for a new trial was, “The damages assessed by the jury exceed the ad damnum ” Whether or not this was intended to refer to the ad damnum of the declaration or of the summons does not appear. As a matter of fact at the time the summons was filed the damages laid would have been sufficient to cover the judgment obtained by appellee for his injuries, together with interest thereon to that date, but the excess over the amount stated in the summons was caused by the accumulation of interest up to the time of judgment in this case. If the attention of the court below had been called to the fact that the judgment exceeded the amount of damages stated in the summons, it must be presumed that an amendment would have been readily granted as such an amendment is one of form rather than substance and could have been made on the moment, even after verdict. In view of the fact that the declaration upon which the case was tried stated a sufficient amount in the ad damnum to more than cover the amount of the recovery, and as the objection does not go to any matter of substance but to a mere formality so far as this case is concerned, we are of opinion that the failure to amend the summons in the particular named should not work a reversal of the judgment. In accordance with the views above expressed, the judgment of the court below will be affirmed.

Affirmed.


text:
    Jacob Schulz, Appellant, v. William Kaiser, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Animals, § 48*—-when instruction on damages for trespass erroneous. In an action to recover for damage done to crops by trespassing animals, an instruction that the jury should find for defendant if it appeared that no actual damage was sustained by plaintiff although it should appear that defendant’s animals actually entered upon plaintiff’s land is erroneous, plaintiff being entitled to at least nominal damages in such case.
    2. Animals, § 23*—what constitutes trespass by. Every unauthorized entry upon the land of another by animals is a trespass.
    3. Animals, § 46

      —when damages implied from trespass by. Damages are implied from every unauthorized entry upon the land of another'by animals.
    Appeal from the Circuit Court of St. Clair county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Jacob Schulz, plaintiff, against William Kaiser, defendant, in the Circuit Court of St. Clair county, to recover for injury to crops by trespassing animals. From a judgment for defendant, plaintiff appeals.
    Otwell & Lindauer, for appellant.
    A. B. Davis, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Valmore Parker et al., Appellees, v. Dolph Conover et al., Appellants.
    1. Wills, § 228

      —when complete instrument overrides particular provisions. As a general rule no section or provision of a will can control against the manifest intent of the complete instrument.
    2. Wills, § 226*—when construction depends upon intention of testator gathered from entire instrument. The construction of a will depends upon the intention of the testator to be ascertained from a full view of everything contained in the will, giving just weight and operation to each clause and word employed, unless there is some invincible repugnance or some portion of it is absolutely unintelligible.
    3. Wills, § 244*—who constitute heirs and descendents living at time of distribution of estate. A provision in a will that a certain distribution of the profits arising from his property be made among his “heirs and descendents living” at the time of the distribution means a distribution between the heirs who are directly descended from him who are living at such time, and does not include the husband and executor of a deceased daughter, although in another clause of the will the testator devises to such daughter an undivided portion of his estate without condition.
    4. Wills, § 249*—when general provision in favor of child controlled by specific provision for distribution. Where testator made in his will a life provision for his wife and devised without condition an undivided portion of the estate, subject to the provision for the wife, to a daughter, who predeceased the testator, leaving a husband, who was her devisee and executor, but no children, and in a later clause of the will testator provided that under certain conditions a distribution of certain royalties derived from the estate devised might be made in the lifetime of the wife, and that any distribution made previous to the death of the said wife should be between his heirs and descendents living in pursuance of the statute of the State of Illinois at the date of this will, held that the general provision in favor of the daughter was controlled by the specific provision as to the distribution, so that the devisee and executor of the deceased daughter had no interest or distributive share in such distribution.
    5. Wills, § 249*—when general provisions controlled by specific provisions. In constructing wills, general provisions must give way to those which are specific.

      Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    P. G. Bradbury and Jones & Jones, for appellants.
    Newlin, Parker & Newlin, for appellees.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellees, who are the widow, heirs at law and the executors of Henry Parker, deceased, filed this bill to construe his will. There was no evidence in the case but it was by agreement heard upon bill and answer, the only question before the court being as to the intention of the testator as expressed in certain portions of the will. It appeared from the bill and answer that Henry Parker died January 26, 1909, in Crawford county, Illinois, where he owned a large body of land, underlaid with gas and oil; that at the time of his death he had a wife, six children and three grandchildren; that his will was duly admitted to probate and his sons Valmore Parker and G. H. Parker, who were appointed executors therein,, duly qualified and entered upon the discharge of their duties. Item three of the will, after giving to the testator’s wife, in lieu of dower and homestead estate, all of his household goods and any other personal property that she might select, contained the following provision: “I also give and bequeath to my said wife for and during her natural life, the proceeds, rents, issues and profits, including the oil and gas therein and thereunder, of all the real estate of which I may die seized, together with the interest and income that may be derived from any and all personal property, moneys or choses in action of which I may die possessed and the accumulation of my estate after my death; provided, however, all of said proceeds, rents, issues, profits, interest and income will be needed for the maintenance, comfort and support of the said Mary Parker and her household.” In item four, the testator devises and bequeaths to his executors in trust all of his property except that bequeathed to his wife, Mary Parker, to hold, use, manage and control the same, during the lifetime of his said wife; that said executors sell said personal property coming to their hands and that the proceeds of the sale, together with all money belonging to the estate or that may accumulate in the hands of the executors, be loaned during the lifetime of his said wife, provided they should supply the comforts, necessities and demands of his said wife, and also provided that if at any time the accumulations and income of the estate should be such as, in the judgment of the executors, the whole of the same should not be needed for the support and maintenance of his wife in a comfortable manner they might make distribution of the money which might accumulate as afterwards in the will directed. The will then devises certain portions of the real estate to the testator’s children and grandchildren, “subject, however, to the bequests and devises herein before made for the use and benefit of my said wife, Mary Parker therein.” By item twelve the testator devised to his children, Valmore Parker, Ella Adams, George H. Parker, Albert Parker, Millie Conover and Stella Conover, each the one-seventh part of all the oil, gas and mineral, in and under the real estate of which he might die seized, share and share alike, subject to the devises made for the use and benefit of his said wife; and by the thirteenth item, he in like manner devised to his three grandchildren, each the one-twenty-first part, of such oil, gas and mineral. Item fourteen of the will provided that: “After the death of my said wife and the payment of the expenses of her last illness and the funeral expenses out of any money belonging to my estate which payments I hereby authorize and direct shall be made the same as any other debt against my estate. I desire that all the personal property of which I may die possessed, shall be by my executors immediately converted into money without any order or decree of court at either public or private sale as they may deem for the best interests of my estate; that they also with all convenient spefed collect all moneys, including all interest due my estate and after paying all the costs and expenses, all debts and bequests that said executors pay to and distribute between my heirs and descendents living at the death of my said wife, if she survives me, all the rest, residue, remainder, of said money and accumulations not theretofore distributed, in pursuance of the statute of the State of Illinois in force at the date of this will, and any distribution made by my executors previous to the death of my said wife shall be made between my heirs and descendents living in pursuance of the statute of the State of Illinois at the date of this will.”

The bill states that the executors have, pursuant to the terms and conditions of said will, sold the royalties and interest from all oil produced and saved from the lands of which said testator died seized, and that they have found the whole amount of the proceeds of such royalties were not needed for the support and maintenance of the widow; that they have heretofore made distribution of the portions of the money derived from the sale of said oil in excess of the amounts necessary for her support and maintenance, which said moneys have been distributed among the persons entitled thereto, in accordance with their respective interests, and which distribution continued from time to time until the death of Millie Conover, one of the children and heirs at law of said Henry Parker and a beneficiary named in said will; that said Millie Conover died May 30, 1914, testate, leaving her mother, the said Mary Parker, her sisters, Ella Adams and Stella Conover, her brothers, Valmore Parker, G. H. Parker and Albert Parker, and her nieces, Minnie Millins, Lillie McMasters, Lillie Garrett, her only heirs at law her surviving; that by her last will and testament, her surviving husband, Dolph Conover, was named as the sole legatee of the property of every kind and character, of which she died seized, and that said Dolph Conover was named as her executor, and has duly qualified and is now acting as such; that said executors now have money on hand derived from the proceeds of sale of oil royalties from the lands of said testator, which are not needed for the support, care and maintenance of his widow and which said executors insist should be distributed among the heirs, descendents and legatees of the said Henry Parker now living, and the said Dolph Conover claims that he is entitled to one-seventh part thereof, under the terms of the last will and testament of the said Millie Conover; that it is to settle this controversy that the suit is instituted to construe the will.

Dolph Conover and Dolph Conover as executor of the last will and testament of Millie Conover, deceased, were made parties defendant to the bill and filed an answer claiming the one-seventh portion of all the proceeds of oil, gas or minerals now held by said executors, which have been derived by them frcm any of the lands, of which the said Henry Parker died seized, or which may hereafter come to their hands from said source, under and by virtue of the last will and testament of said Millie Conover, deceased. The court found that by the terms and provisions of said last will and testament of said Henry Parker, deceased, all the money derived or collected by the executors from the sale of oil as royalties, or that may hereafter be collected by them during the lifetime of said Mary Parker, or so much thereof as will be needed for her maintenance, comfort and support, during her life, is the property of, owned by and belongs to the complainant Mary Parker, widow of said Henry Parker, and should be paid to her for and during her natural life, and if at any time said money should, in the judgment of said executors, not be required to be so used, then they might make distribution of such part of such money as is not so required for the use of said Mary Parker, to the heirs and descendents of said Henry Parker, deceased, living' at the time of such distribution in such proportion or share as each heir would take by virtue of the statute in case of intestate property in force at the time of the death of said Henry Parker, deceased; that Dolph Conover and Dolph Conover executor of the last will and testament of Millie Conover, deceased, are neither heirs nor descendents of said Henry Parker, deceased, and never can be, and that neither of them is the owner of or has any interest in said money or any part thereof, heretofore collected or that may be hereafter collected, during the natural life of said Mary Parker. It was accordingly decreed by the court that said executors pay to the complainant Mary Parker, for and during her natural life, so much of said money as should be required for her maintenance, support and comfort and distribute the balance, if any, among and between the heirs and descendents of the said Henry Parker, living at the time of such distribution, pursuant to the statute of the State of Illinois, in force at the time of the death of said Henry Parker, and that in making such distribution they should not pay any part of said money so collected or derived from such sale of oil as royalty during the lifetime of complainant Mary Parker to said defendant Dolph Conover and Dolph Con-over executor of the last will and testament of said Millie Conover, deceased, or either of them. Dolph Conover personally and as executor prosecutes this appeal, asking the court to hold that by operation of law the terms of the will must be construed as providing that one-seventh of the oil, gas and minerals under all the land became a vested remainder in his wife, Millie Conover, at the death of her father, subject only to a just proportion of the amount necessary to maintain, care for and support his widow, Mary Parker, during her lifetime; that the estate devised to said Millie Conover by the twelfth item above referred to, was a vested remainder subject to the life estate devised to Mary Parker therein.

In determining the rights of appellant to the fund in question, it is necessary to take into consideration the following items of the will: Item three of the will, which gives to the wife, Mary Parker, during her natural life “The proceeds, rents, issues and profits in-eluding the oil and gas therein and thereunder of all the real estate.” Item four, which devises and bequeaths all the property to the executors in trust to hold, use, manage and control the same during the lifetime of the wife, Mary Parker, as therein directed; that the executors shall keep loaned the fund therein provided for during the life of the said wife and shall supply her comforts, wants, necessities and demands, and if at any time the accumulations and income be such as in the judgment of the executors the whole of the same is not needed for her support and maintenance in a comfortable manner, “they may make distribution. of so much money which may accumulate as hereinafter directed.” Item twelve, which devises to the six children including Millie Conover, the deceased wife of appellant, each a one-seventh of all the oil, gas and mineral under the real estate, subject to the devises and bequests made for the use and benefit of the wife, Mary Parker. That part of item fourteen which provides that ‘ any distribution made by my executors previous to the death of my said wife shall be made between my heirs and descendents living, in pursuance of the statute of the State of Illinois at the date of this will.” And with these items there should also be considered the specific devises of real estate made to the children and grandchildren as above referred to, subject to tjae devises and bequests made for the use and benefit of the wife of the testator. The widow, Mary Parker, was a complainant in the bill, asking that the accumulations in the hands of the executors be distributed to the heirs and descendents of her deceased husband, living at the time of the distribution and that none go to appellants. Appellant Conover makes his claim under that provision of section twelve of the will which gives his wife one-seventh part of all the oil, gas and mineral in and under the real estate of which her father should die seized, subject to the devises and bequests made for the use and benefit of his said wife therein, but it is a well-known canon of construction that in determining the intent of the testator the whole will must be considered together, and that as a general rule no section or provision standing alone can control against the manifest intent of the complete instrument, but if possible force and effect must be given to every request or direction contained therein. “The construction (of a will) depends upon the intention of the testator, to be ascertained from a full view of everything contained in the will, giving just weight and operation to each clause and word employed, unless there is some invincible repugnance, or some portion of it is absolutely unintelligible.” Dickison v. Dickison, 138 Ill. 541.

The will in question shows a systematic attempt on the part of the testator to dispose of his property and provide for his family. His first thought is for his wife and he gives her all the income from the property, if necessary, for her maintenance, comfort and support, and provides that the personal property be sold if the income is not sufficient. He then considered the care of his property and the income therefrom, putting it in the hands of his executors as trustees with directions to pay so much of it to the widow as her needs and comfort might demand, the balance to be distributed as therein provided. He then divides his land among his children and grandchildren by seven specific bequests, each one of which concludes with the identical words used at the conclusion of the provision, under which appellant claims title, to wit: “Subject, however, to the devises and bequests herein made for the use and benefit of my said wife, Mary Parker. ’ ’ He then disposes of the oil, gas and mineral under the land subject to the same reservation. He subsequently directs what shall be done with his personal property and accumulations on hand at the death of his wife, and then comes the final provision in the will, concerning the disposition of the property which is, that any distribution thereof made previous to the death of his wife, should be made between his heirs and descendente living, in pursuance of the statute of the State of Illinois at the date of the will. The provisions of the will, taken as a whole, appear to be substantially harmonious and item twelve, under which appellant claims, when read with the rest of the will, does not appéar to be in serious conflict therewith. By that item the testator’s children, including Millie Conover, were each given one-seventh of all the oil, gas and mineral in and under the real estate, of which he should die seized. This devise, however, was made subject to the devises and bequests made for the use and benefit of the testator’s wife. It must therefore be held to be subject to the provisions governing the distribution of the fund provided for the wife, which is named in other items. By those items the distribution made previous to the death of the wife were to be between the testator’s living heirs and descendents. Appellant Con-over was not a descendent of the testator and could not either in his own right or as executor be considered an heir of the testator. It appears evident to us that the testator meant that the fund distributed during the lifetime of his wife should be divided among his heirs who had directly descended from him, who were living at the time of the distribution. Under this construction appellant is not entitled to any interest or distributive share in said fund which may be distributed during the lifetime, of the widow of said Henry Parker, deceased, either in his own right, as devisee 'of Ms wife, or as the executor of her will.

It is also a matter to be considered that the bill asks that the fund be distributed as provided for under the specific direction contained in item fourteen, wMch is the last direction given by the testator in Ms will, concerning the disposition of his property. Even if this provision did conflict with that under which appellant claims, the provision in item fourteen must prevail because it is a fundamental rule in the construction of wills that the later provision must prevail over the former ones when the same cannot be harmomzed. The rules of construction above referred to are set out at length, analyzed and supported by citations in the opinion of the court delivered through Justice Shope in Dickison v. Dickison, supra. Item twelve, which gave the testator’s children each one-seventh of all the oil, gas and mineral in or under his real estate, was a general provision, disposing of the interests named, wMle that providing for the distribution of the fund at the end of item fourteen was a specific provision made for the purpose of disposing of accumulations or the receipt from royalties during the lifetime of his widow. “It is a familiar rule, in the construction of wills that general provisions must give way to specific provisions.” Saeger v. Bode, 181 Ill. 514. Under this rule, also, the specific provision contained in item fourteen must prevail, and under it appellants are not entitled to receive anything. We are of opinion that the chancellor in the court below properly construed the provisions of the will submitted to him by the bill, and answer and that Ms decree should be affirmed.

Affirmed.


author: Mr. Presiding Justice Higber

text:
    Louisa Leiberich, Appellant, v. East St. Louis & Suburban Railway Company, Appellee.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Louisa Leiberieh, plaintiff, against the East St. Louis & Suburban Railway Company, defendant, in the City Court of East St. Louis, to recover for personal injuries. From a judgment for defendant, plaintiff appeals.
    The declaration charged that plaintiff was a passenger on one of defendant’s cars; that.the car was crowded and she was standing in the aisle; that as the car turned a corner near Thirteenth street and St. Clair avenue, in East St. Louis, Illinois, defendant’s agents and servants negligently caused the car to run at great speed and turn violently around the comer, throwing defendant with great violence against the sides and upon the floor of the car, and causing other passengers to fall upon and trample her; and that on account of such negligence she sustained great and permanent injuries.
    Abstract of the Decision.
    1. Tbial, § 199

      —when verdict improperly directed. In an action to recover for personal injuries, where the evidence is conflicting and where plaintiff’s evidence, if true, is sufficient to sustain a verdict, it is the province of the jury, under proper instructions, to determine whether such evidence is disproved by defendant’s evidence, and it is error to direct a verdict in such case.

      The evidence for plaintiff showed that on March 28, 1915, plaintiff and four acquaintances boarded a car of defendant about twenty minutes before midnight at Allens Park, near East St. Louis, on the way to St. Louis, Missouri. The car was crowded and plaintiff stood in the aisle near the back end. As the car reached the corner of Thirteenth street and Nectar avenue, which appeared to have been somewhere near Thirteenth street and St. Clair avenue, it was running so fast that when it struck the curve the trolley was thrown off, the windows broken, several persons thrown from their seats, plaintiff thrown on the floor towards or upon the platform, and others thrown against or upon her. Plaintiff testified that by reason of her injuries she had lost her health and become permanently injured. In regard to her injuries and their seriousness, she was corroborated by her physician in St. Louis.
    At the close of all the evidence the court, on motion of defendant, directed the jury to return a verdict of not guilty. Judgment was entered on the verdict against plaintiff for costs and a motion for a new trial denied.
    William A. Kane, for appellant.
    Barthel, Farmer & Klingel, for appellee.

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

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

   Mr. Presiding Justice Higber

delivered the opinion of the court.

2. Constitutional law, § 176 —when direction of verdict deprived of right to trial by jury. To direct a verdict, where the evidence is conflicting and where plaintiff’s evidence, if true, is sufficient to sustain a verdict, involves a determination by the court of the question of the preponderance of the evidence, and is a violation of plaintiff’s constitutional right of trial hy jury.

3. Carriers, § 456*—when variance between declaration and proof immaterial. A variance between a declaration in an action by a passenger against a street railroad for damages for personal injuries alleging that an accident occurred at a named street and avenue and proof that it occurred “somewhere around” such street and avenue is merely technical and is not of such importance as to defeat a recovery.

4. Appeal and error, § 438*—when question of variance must be raised. The question of variance cannot be raised for the first time in the Appellate Court.

5. Carriers, § 456*—when averment of injury divisible. In an action to recover for personal injuries to a passenger, where plaintiff alleged that by reason of the excessive speed of a car while rounding a curve she was thrown against the side of the car and trampled on, it is not necessary, to entitle plaintiff to recover, that she prove that she was trampled on, the injury alleged being divisible.

6. Torts, § 29*—when plaintiff need only prove part of charge. In an action of tort, if the averment be divisible, plaintiff may prove part of his charge if he have sufficient evidence.


text:
    E. S. Hausafus, Appellee, v. St. Louis, Springfield & Peoria Railroad, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of Granite City; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by E. S. Hausafus, plaintiff, against the St. Louis, Springfield & Peoria Eailroad, defendant, in the City Court of Granite City, to recover for personal injuries. Prom a judgment for plaintiff for $1,200, defendant appeals.
    It appeared that in the forenoon of July 12, 1914, plaintiff started in his five passenger automobile from his home in Granite City, Illinois, to take a ride in the country. On the front seat was his son, who was driving the car, and a daughter, while plaintiff was sitting on the back seat with a friend, and a young daughter of the latter. The top of the automobile was up, and shortly after leaving the city limits they drove south on the Nameoki public highway towards a place where defendant’s tracks cross the road at right angles, at a time when defendant’s car that caused the injury was approaching the crossing from the east. The physical conditions at and east of the crossing and north of the railroad track necessary for a proper consideration of the issues involved were shown to be substantially as follows: The highway and defendant’s right of way, which was 60 feet wide, crossed at right angles, the highway running north and south, and defendant’s right of way east and west. On the north the highway began to rise 40 feet back from the crossing and gradually reached the elevation of the track which at the crossing was 6 feet above the natural surface of the ground. This same elevation above the natural surface of the ground extended east of the crossing some 500 feet. On the west side of the highway was a warning sign. On the east side of the highway towards the car was a blue grass pasture, across which plaintiff would have to look if he saw the car before he reached the right of way. This pasture was separated from the .highway by a hedge fence which ran to a point 32 feet north of the right of way, where there was a gate, and was on the natural surface of the ground. There were three persimmon trees near the right of way in the pasture, one of which was some 50 feet from the north rail of the track and the other two further away, from 15 to 18 feet distant from each other. Bast of the hedge fence, some 525 feet, was a two-story frame house which came within 12 feet of defendant’s right of way, and across the 12 feet there was a shed. Along the right of way 6 feet from the north rail of the track were five telegraph poles between the house and the crossing, 100 feet apart. Around the house was a picket fence extending out to the right of way, and there were a number of shade trees in the yard.
    Plaintiff and those with him stated they were riding towards the crossing at a speed of twelve to fifteen miles an hour and, when some 300 feet distant therefrom, began to look in both directions for cars; that they continued looking and saw none until within 6 or 7 feet of the track, when they saw a car from 100 to 150 feet away, running at fifty or sixty miles an hour, coming from the east; that the brakes of the automobile were immediately applied, but it was impossible to stop it until the front wheels reached the rail where the trolley car struck it, badly .wrecking the automobile and injuring plaintiff and some of the other occupants; that after they reached the incline leading up to the track, the speed was reduced to six or nine miles an hour; that they listened and heard no signal from the car; that nothing obstructed the view of the car on the railroad track but the trees, the telegraph poles and the house, and that after passing the trees there was nothing but the telegraph poles. There was the usual controversy as to whether or not those in charge of defendant’s car gave signals in approaching the crossing. „ Plaintiff and those- in the motor car with him testified that no such signals were given, while on the part of defendant, George Hesler, who lived in the house referred to, as being east of the highway at that point, testified he was in his front yard and heard the danger signal given; that defendant’s car was then half way between the house and the crossing and it kept signaling until it struck the automobile. Three other persons, who were at the Hesler house, another witness living some two blocks from the crossing, a passenger on the car, the conductor and the motorman all testified positively that the danger signal was given by the car in approaching the crossing. Plaintiff also testified that he could have stopped his car within fifteen feet.
    Abstract of the Decision.
    1. Street railroads, § 131

      —when evidence sufficient to show that motorman gave signals on approaching crossing. In an action to recover for personal injuries sustained in a collision between a trolley car and an automobile at a crossing, where the evidence was conflicting as to whether the motorman gave signals on appreaching the crossing, but where the evidence of the motorman that such signals were given was corroborated by disinterested witnesses having the greater opportunity to hear such signals, held that a preponderance of the evidence showed that the signals were given.

      Burton & Hamilton, for appellant.
    J. M. Bandy, B. W. Griffith and H. J. Bandy, for appellee.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

2. Street railroads, § 97 —when operator of automobile approaching crossing guilty of contributory negligence. In an action for personal injuries as a result of a collision between a trolley car and an automobile at a crossing, where it appeared from plaintiff’s testimony that when approaching the crossing the speed of the automobile was reduced to not more than nine miles an hour, and that the machine could be stopped within 15 feet, and where it also appeared that at a point 32 feet from the crossing an unobstructed view of the track could have been had in the direction from which the car came, held that the failure of the person operating the automobile to stop it in time to avoid the accident was a want of ordinary care for his own safety and those with him.

3. Street railroads, § 131*—when evidence insufficient to show negligence in operating car at unreasonable rate of speed. In an action for personal injuries sustained in a collision between a trolley car and an automobile at a crossing, where the evidence was conflicting as to the. speed of the trolley car, but where such car was running through the open country on its own right of way and not on the highway, evidence examined and held not to show that the car was being run at an unreasonable rate of speed or without regard to the safety of those on the highway who were in the exercise of care for their own protection.


text:
    Joseph A. Kurrus Livery & Undertaking Company, Appellant, v. Fannie Crossett, Appellee.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Evidence, § 476

      —when right to recover does not depend upon number of witnesses. The fact that a greater number of witnesses testify for a plaintiff does not necessarily determine his right to recover in the action.
    2. Witnesses, § 253*—when fury judges of weight and credibility of testimony. The jury, under proper instructions, are the proper judges of the weight and credence to be given to the testimony of the witnesses, as they see them on the stand and hear them testify.
    3. Assumpsit, action oe, § 89*—when evidence sufficient to support verdict for defendant. In an action- to recover a balance on a bill for undertaker’s services, and where the evidence was eonfiicting as to whether defendant promised to pay the bill, as plaintiff' alleged, evidence examined and held sufficient to support a verdict for defendant.

      Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by the Joseph A. Kurrus Livery & Undertaking Company, plaintiff, against Fannie Crossett, defendant, in the City Court of East St. Louis, to recover a balance due on a bill for undertaking services. From a judgment against plaintiff for costs, plaintiff appeals.
    F. C. Smith, for appellant; C. W. Wiedemann, of counsel.
    Alexander Flannigen, for appellee; Edward C. Zullet, of counsel.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

4. Appeal and error, § 1778 -—when verdict not reversed on ground of insufficiency of evidence. It is not ground of reversal that the jury believed the testimony of one side rather than another, although the number of witnesses who testified for the party against whom the jury found was greater than the number testifying for the other side.