author: Mr. Justice Duncan

text:
    John H. Farber, Appellee, v. St. Louis National Stock Yards, Appellant.
    1. Master and servant—who fellow-servants as a matter of law. Held, under the evidence, that a foreman or vice-principal of the master was a fellow-servant of the plaintiff who was engaged in repairing a car in railroad yards when such foreman undertook to spike a switch and to guard it so as to save the plaintiff harmless against the threatened danger that overtook him.
    2. Master and servant—test to be applied in determining when vice-principal acts as fellow-servant. A test by which to determine whether a person is acting as a vice-principal or fellow-servant in a particular instance is whether, at the time of his alleged negligence, he was entrusted with the performance of some absolute and personal duty of the master himself, cast upon him as a matter of law, or retained by him as master.
    3. Master and servant—when obligation to furnish safe place performed. A master has complied with the rule which requires him to furnish a safe working place for his servants when he has provided against such dangers as may reasonably be apprehended by furnishing the servant with means of protecting himself.
    4. Master and servant—when vice-principal becomes fellow-servant. A foreman or vice-principal becomes a fellow-servant of the laborers in making use of the means which the master has provided to render the working place safe for employes.
    5. Master and servant—what declaration in action by servant should show. Where the servant is suing his master for injuries occasioned by the negligence of another servant, he must allege and prove that the servant causing the injury was not a fellow-servant.
    Action in case for personal injuries. Appeal from the Circuit Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the February term, 1909.
    Reversed.
    Opinion filed February 11, 1910.
    Statement by the Court. On April 13, 1906, John H. Farher, appellee, was employed by appellant as a laborer in repairing a car in its yard on a track known as the “L. & N. High,” when another car was run in onto this track by a switching crew of appellant and thrown against the car on which appellee was at work, knocking him down and breaking his right leg, crushing him in the chest and otherwise seriously injuring him. Appellee sued appellant in case in the City Court of East St. Louis, charging in his declaration that James Gorman, as vice-principal of appellant, negligently ordered appellee to work under the car in question and negligently failed to keep his promise and assurance that he, Gorman, would spike the rails of the switch, and would keep a lookout and warn plaintiff, so as to prevent other cars from running in on the track where appellee was engaged and injuring him. The defendant filed the general issue. On a trial at the August term, 1906, a verdict and judgment was given in favor of appellee for $2,500, after motion for a new trial was overruled. The appellant made proper motions at close of plaintiff’s evidence, and at close of all the evidence, to direct a verdict of not guilty; but the court overruled the same, and all necessary exceptions are duly saved by appellant for this appeal.
    The evidence in this record proves that appellee and Gorman were principally employed by appellant as track repairers under Joe Heptenstall, as foreman, and for the same pay; but under their employment they or any members of their gang were subject to be called by appellant to do any kind of work such as cleaning the yards of dirt and other matter, removing and replacing switch-rods and switch-stands, removing wrecked cars, unloading cars, sawing wood, repairing cars and doing other general labor. Appellee had never been called on before by appellant to assist in repairing cars and insists that he had no experience in that work. He is an experienced railroad man in track repairing, having worked at it for twenty-five or thirty years, and was foreman over track repairers for about twenty-three years. He is about fifty-seven years old and had worked for appellant sixteen or eighteen months. On the borders of East St. Louis appellant conducts a stock yards and operates and maintains a large number of railroad tracks, switching yards, switch engines and other instrumentalities used in a railroad switching yard. A large number of cars containing live stock, supplies for packing houses, and other like material, are switched into, and out of, its yards daily. Appellant maintains car inspectors who were under the direction and supervision of Henry Heirs, hut it did not keep in its employ any regular crew of car repairers. When cars became disabled so that they could not be safely delivered to connecting lines, they were denominated as “bad order cars” and placed for repairs on the “L. & N. High” which connected with one end of the passing track, but not with the other end, it being a spur or blind track. On the day of plaintiff’s injury Heirs had notified Heptenstall, foreman of track repairers, of this bad order car. Heptenstall then told Gorman, who was an experienced car repairer, and the plaintiff to go and repair the ear, that is, put a new draw-bar on the car in place of the broken or defective one it had. Gorman and appellee then obtained a draw-bar and placed it- on a push car and went to the tool house to get the necessary tools; and when there Gorman told appellee to get the tools, a spike-maul, monkey-wrench, track-chisel, track-wrench, a flag and a steel bar. Appellee got all but the flag, informing Gorman that there was no flag there. Gorman then said: “Put on a couple of spikes and I will spike the damned thing.” They then went to the car to put on the draw-bar, Gorman first going about three hundred feet from the car with the spikes and spike-maul to spike the switch, while the plaintiff sat at the car and watched him. Instead of spiking it so the cars could not be run onto the “L. & N. High,” Gorman made a mistake and spiked it so the cars would necessarily run from the passing track onto the switch on which they were to work. Gorman then went to the car and proceeded to loosen the bolts on the disabled draw-bar so he could take it off and replace it with the new one, remarking to appellee that “there is no room for two of us to work together.” Finally Gorman directed appellee to take the bar and pry down a certain iron to admit the new draw-bar. While appellee was doing this work the switch crew of the appellant pushed a car in on this track against the car they were repairing, knocked appellee down by the collision and ran the car on to him injuring him as aforesaid. Appellee swears that Gorman promised to keep a lookout and notify appellee of any danger before he went to work, but Gorman denies that he made any promise or statement of that kind. By the rules of the company which had been in practice for years, the car repairers were required to put out a flag on this switch, or spike it, to'protect themselves against the danger of cars being switched against the cars they were to repair.
    The errors assigned by appellant and which are relied on by it in the argument are (1) the refusal of the City Court at the close of the plaintiff’s evidence, and also at the close of all the evidence, to direct a verdict of not guilty; (2) the verdict is contrary to, and is not supported by, the law or the evidence in the case; (3) the refusal of the City Court to grant a new trial, and in rendering judgment in the case.
    Dan McGlynn, for appellant.
    Webb & Webb and George A. Crow, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

The real question on this appeal, and about the only one argued by the attorneys, is whether or not Gorman and the plaintiff were fellow-servants at the time of Gorman’s acts of negligence which caused the plaintiff’s injury. It is the opinion of this court that Gorman was foreman or vice principal of the defend- . ant in the work of repairing the car in question, and was empowered by it to direct and control the plaintiff in that particular work as charged in the declaration; and it is also our opinion that Gorman promised the plaintiff to keep a lookout while the plaintiff was working on the car, and guard him against the danger of cars being switched against the one on which he was at work and neglected to keep his promise. The last two questions are very strongly contested by the parties hereto; but under the evidence on each question, we are not able to say that such a finding as was evidently made in the lower court is manifestly against the weight of the evidence. It will not be necessary to discuss the evidence on these two propositions or to show how we reach our conclusions thereon, as we simply state our findings that we may be clearly understood in our decision of this case. It is now clear that the decision of this case must turn solely on the question of whether or not Gorman was doing the work of a fellow-servant when he undertook to spike the switch and to guard it so as to save the plaintiff harmless against the threatened danger that overtook him. If he was there is no liability against the defendant; but if he was doing the work of a vice principal that was entrusted to him by the defendant, then the defendant is liable. It cannot be successfully contended that the order of Gorman to work on this car was the proximate cause of the plaintiff’s injury, and for which he may recover. There was no negligence in any order given by Gorman to plaintiff. The plaintiff’s inexperience in car repairing had nothing at all to do with causing his injury. Had the switch been properly spiked as Gorman supposed he had done, the plaintiff could not, and would not, have been injured. It is also true that if Gorman had properly guarded this switch by keeping a lookout according to promise that plaintiff would not have been injured. These two failures on Gorman’s part are his only acts of negligence proven in this case. Plaintiff knew as well as Gorman or any one else that his safety from the danger of a collision with other cars depended altogether on the character of Gorman’s work in spiking and guarding that switch. It was Gorman’s long experience as a car repairer and the plaintiff’s lack of experience in that particular work, no doubt, that led the defendant’s superior servants to make Gorman foreman over Farber in the actual work of repairing cars. There is no part of the work they did, or had to do, that day except the bare work of repairing the car that Farber did not thoroughly and minutely understand. There was no reason shown why Gorman’s authority should extend any further than in the matter of repairing the car and in the matter of ways and means of repairing it. There is no evidence that he had any other authority that is not absolutely annulled by the fact that the defendant had in force a positive rule about the flagging and spiking of the switch, in substance that it was the duty of the car repairers either to flag the switch or spike it so that switchmen would not endanger them by collisions with other cars. It was Farber’s duty and it was Gorman’s duty to obey this rule. It was for the protection of both of them. Negligence of either one in following, or omitting to follow, this rule endangered both of them. The rule was reasonable and effective for its purpose if obeyed. It had not been habitually or otherwise disobeyed before. Farber could do what the rule required as well as Gorman or any one and he knew as well as any one the importance of it being obeyed. While the plaintiff says he did not know the rules pertaining to car repairers, yet, he says, he knew this rule with reference to flagging and spiking the switch, and knew he had to have a flag on the track itself or had to spike the switch, one or both, that morning when he went to work, as appears from the abstract on page 19. There is no question or controversy over this proposition. This being so, the duty of protecting the car against collisions was under this rule, not that of appellant, but of both Farber and Gorman; and the negligence of either one was necessarily imputable to the other; and neither one under this state of facts could recover of the master for the negligence of the other in carrying out, or failing to carry out, the rule of the defendant. As it was Farber’s duty to protect himself under this rule, he could not escape the duty by accepting a promise of Gorman that he would comply with the rule or would guard him against the danger by keeping a lookout. Gorman had no right or authority to change or suspend or to abolish the rule, and when he was attempting to observe it, was not exercising any authority or control over plaintiff as a vice principal and was only attempting to perform the duty of car repairer. An employe violating a rule intended for his protection and the protection of others working with him is guilty of such contributory negligence as to bar a recovery for injuries sustained thereby. The negligence of one car inspector who undertakes to maintain a lookout for danger, or who negligently fails to observe a rule prescribed for all to observe who are working with him, is imputable to the others. 1 Thompson on Negligence, sec. 507; I. C. R. R. Co. v. Winslow, 56 Ill. App. 462; C. & A. R. R. Co. v. Myers, 95 Ill. App. 578; Id. v. Stevens, 80 Ill. App. 671; Wabash R. R. Co. v. Zerwick, 74 Ill. App. 670; LaBatt on Master and Servant, Vol. 1, p. 473, N. 2; Brown v. People’s Gas Light Co., 81 Vt. 477, 22 L. R. A. 738 (N. S.).

It is true that the duty of the master of providing and maintaining for his servant, a reasonably safe place in which to work is non-delegable. But this rule does not require the master, as such, at all times to maintain the place reasonably safe against operation. This is a mere act of service and may be performed by a competent fellow-servant. There was nothing dangerous in this working place except when this switch or car was sought to be operated or worked on by other employes. There was nothing to do to make it and keep it a safe place, except to guard against other employes switching cars or moving engines on this track; and the defendant furnished a simple adequate rule to secure it; and all that the car repairers had to do to have safety was to obey this rule, the easiest part of their daily task and of the most importance to them. Spiking this switch and flagging it was not a duty retained by the master nor undertaken by it in this particular instance, but was by express provision of this rule made the duty of the employes as such.' It was one that could be, and was in fact, delegated to co-servants. How then can there be a recovery in this case if we follow the law? Test the question in every way known to the rules of law, and the only rational conclusion that can be reached is that Gorman and the plaintiff were fellow-servants in the matter of flagging and spiking and guarding the switch. The fact that there was no flag within reach was of no consequence under the evidence. They were not compelled to work without one if necessary to their safety. A vice principal is one to whom is deputed the discharge of some duty or the exercise of some power which belongs to the master, as such. .A test by which to determine whether a person is acting as a vice principal or fellow-servant in a particular instance is whether, at the time of his alleged negligence, he was intrusted with the performance of some absolute and personal duty of the master himself, cast upon him as a matter of law, or retained by him as master. If the negligence complained of consists of some act done or omitted by such foreman or vice principal while working as a co-laborer with those under his control, and which might just as readily have happened with one of them having no authority or power of a foreman or vice principal, the common master will not be liable. In any act or omission the foreman is a fellow-servant with the men under him when his act or omission is likely to be performed or omitted by any servant. He does not act as a vice principal when engaged in any work which does not pertain to the duty or peculiar power of the master. Decatur C. M. Co. v. Gogerty, 80 Ill. App. 632, Pasco v. Minneapolis S. & M. Co., 18 L. R. A. 153 (N. S.); C. & A. R. R. Co. v. May, 108 Ill. 298; Gall v. Beckstein, 173 Ill. 191; Anderson v. Higgins, 122 Ill. App. 455; Fitzgerald v. Honkomp, 44 Ill. App. 365; 1 LaBatt’s M. & S., sec 219; Met. El. Ry. Co. v. Skola, 183 Ill. 454; Baier v. Selke, 211 Ill. 512; Brown v. People’s Gas Light Co., 81 Vt. 477, and 22 L. R. A. 738 (N. S.).

A master has complied with the rule which requires him to furnish a safe Avorking place for his servants when he has provided against such dangers as may reasonably be apprehended by furnishing the servant with means of protecting himself. A foreman becomes a fellow-servant of the laborers in making use of the means which the master has provided to render the working place safe for employes. Brown v. People’s Gaslight Co., 22 L. R. A. 738 (N. S.); Munn v. L. Wolf Mf’g. Co., 94 Ill. App. 122.

In the cases cited by appellee on the question of the negligence of the vice principal the work in hand was the making or selecting a safe place or appliance and not in the matter of guarding or protecting the employes at work against the probable dangerous approach of others working in some other department as in this case, and when read closely they will be seen to be inapplicable to this case, to-wit: C. & A. R. R. Co. v. Eaton, 96 Ill. App. 570; Kewanee B. Co. v. Erickson, 78 Ill. App. 35; C. B. & Q. R. R. Co. v. Avery, 109 Ill. 314; Leonard v. Kinnare, 174 Ill. 532; C. R. I. & P. R. R. Co. v. Rathneau, 225 Ill. 278.

Where the servant is suing the master for injuries occasioned by the negligence of another servant he must allege and prove that the servant causing the injury was not a fellow-servant. Chic. C. Ry. Co. v. Leach, 208 Ill. 202. The appellee having failed to prove that Gorman was not a fellow-servant at the time of Ms alleged negligence, and there being no dispute as to the facts bearing on that question, the lower court erred in its refusal to direct a verdict of not guilty in this case, and the cause is therefore reversed without remanding.

Reversed.

Finding of fact to be incorporated in the judgment: We find as an ultimate fact that appellee and. Gorman were fellow-servants at the time of the alleged negligence of Gorman.


source: Caselaw Access Project

license: Public Domain

text:
    Anton W. Kleinschnittger, Appellee, v. Benjamin L. Dorsey et al., Appellants. M. H. Boals Planing Hills Company, Appellee, v. Benjamin L. Dorsey et al., Appellants.
    Consolidated for Hearing.
    1. Contracts—when certificate of architect not condition precedent to recovery. Any act of the owner under a building contract, which makes the architect’s certificate a condition precedent to payment, which prevents the contractor from obtaining such a certificate, or any act of the owner showing that he has waived such a provision, will release the contractor from the duty of procuring such certificate.
    2. Contracts—what not essential to recovery under building. A literal compliance with the specifications for a dwelling house is not necessary to a recovery by the contractor, if he has in good faith made a substantial performance thereof.
    3. Liens—burden to show damage under Mechanic’s Lien Act. Under the Mechanic’s Lien Act the burden of proof is upon the owner to establish what damages, if any, should he allowed in mitigation of the amount claimed hy way of lien.
    4. Liens—effect of omission of necessary parties to proceeding under the Mechanic’s Lien Act. Only one suit can be maintained under the Mechanic’s Lien Act; all parties having a lien or interest in the premises must be brought together in one suit; if any party is omitted, the suit will be dismissed for want of necessary parties.
    Mechanic’s lien. Appeal from the Circuit Court of Madison county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed in part, reversed in part, and remanded.
    Opinion filed February 11, 1910.
    Statement by the Court. On March 8, 1906,, Anton W. Kleinschnittger, one of the appellees, filed his petition in the court below for a mechanic’s lien against Benjamin L. Dorsey and Fannie L. Dorsey, appellants, and M. H. Boals Planing Mill Company, one of the appellees. On the same day M. H. Boals Planing Mill Company filed its petition for a subcontractor’s lien against said appellants and Anton W. Kleinschnittger, both of said petitions being filed in chancery. Said petitions aver in substance that said Kleinschnittger, as contractor, and Benjamin L. Dorsey- on February 15, 1904, entered into a contract to build and complete by November 1, 1904, a dwelling house for said Dorsey, except plumbing, mantels and buffets or china closets, on lots No. 2 and 3, Block 21, in the city of Alton. The consideration for the building of said dwelling was $20,538. The terms of said contract were reduced to writing but were never signed by the said parties and are set out in haec verba in said bills. They aver that the said contractor complied with all the terms of said contract, except wherein changes were made therein by agreements with said Dorsey, and that the said Dorsey and wife took possession of the same January 15, 1906, the same then being completed; that there is due the said contractor the sum of $7,813.73 on said contract, $3,088.75 of which is due M. H. Boals Planing Mill Company for lumber and mill work, as subcontractors under said contract, and that they are entitled to liens for the same. The appellants answered the said bill admitting said contract; but denying that the said building was erected according to said contract or that appellees, or either of them is entitled to a lien. The appellants also filed a cross-bill against said Kleinschnittger, averring that he did not perform his part of said contract; that the work and materials furnished therefor were improper and unfit, etc., and that they were thereby greatly damaged and delayed in the completion thereof; and they ask that their damages be ascertained and decreed to them. The defendant in cross-bill answered denying the allegations of the cross-bill. Replications were filed to both answers. Said causes were consolidated by agreement of the parties; and on evidence heard, the court found in favor of complainants and against appellants, and decreed that there was due said Kleinschnittger on said contract, $3,833.13, including the sum of $3,088.75, due M. H. Boals Planing Mill Company for materials and for which it was decreed a lien; and the said Kleinschnittger was decreed a lien for the remainder thereof, $744.38, and that said sums be paid in sixty days.
    Appellants appeal and assign errors and contend that the decree is contrary to the law and the evidence; and that the court erred in rendering a decree for said sums in favor of complainants and against defendants, appellants.
    C. H. Burtok and R. E. Dorsey, for appellants.
    Levi Davis, for appellees.
   Mr. Justice Duncan

delivered the opinion of the court.

The chief contention of the appellants in this case is that the contract in question makes the architect the judge of the quality of the materials used and of the work performed; and, also, makes him the arbiter of the amount of money to be paid by the owners for the work and materials; and that the contractor not having obtained the final certificate of the architect catinot recover in this action. The provisions of the contract requiring that no payments of money to Kleinschnittger shall be made except upon certificate of the architect were clearly waived by the said owner, Dorsey, as claimed by appellee; and the conduct of Dorsey and the architect were such as to warrant the lower court in holding that said provisions are not binding on Kleinschnittger. The facts bearing on this question in the record show that by the testimony of both Kleinschnittger and Dorsey, the latter paid to the former on this contract the sum of $18,015.60; and that no certificate was demanded or furnished, except one for $5,000 for the first and second installments due the contractor, and that all payments made were without regard to the certificate. This certificate bears date of October 18, 1904. The payments bear dates from March 22, 1904, to January 19, 1906, some of them being to Kleinschnittger direct, and others to his subcontractors on his order. The letter that Link, the architect, wrote to Dorsey enclosing this certificate indicates clearly that it was issued by Link as a matter of form and that he knew little or nothing about the work done, or even about the contents of Kleinschnittger’s contract. Kleinschnittger says that Dorsey told him that he would pay him along as the payments caine due, and that he did not ask for any more certificates, and that the architect said no more about them. The record corroborates this and also shows that numerous changes were made in this contract by which were added more than $2,600 worth of extras; and that these changes in the building were all made by agreements of Kleinschnittger and Dorsey, or Mrs. Dorsey who was authorized by her husband to make them. By article III of the contract no alteration shall be made in the work except on written order of the architect; and the amount to be paid therefor by the owner, or allowed by the contractor, by such alterations shall be stated in said order. We fail to find in this record where the architect ever fixed any such allowance for work, and only in one or two instances did he suggest any allowance even for the added material; and he absolutely refused to make a final certificate to Kleinschnittger for the reason that he did not know anything about what payments were made, and for the further reason that the changes made by Mrs. Dorsey were taken out of his hands. He also told William J. Boals that Dorsey ordered him “not to O. K. any more bills,” when Boals went to him to get a certificate at Dorsey’s request. On January 20, 1906, the architect writes the following letter to Kleinschnittger, to wit:

“In. view of the fact that a great deal of the material and workmanship of the Dorsey residence are defective, unfinished and unsatisfactory, and that the building was delayed an incredible period, it follows that my client, the owner, is entitled to the difference between good material and bad material, good workmanship and bad workmanship, and to the forfeiture caused by delay, and since the question of the proper amount for same will be difficult of adjustment by a party representing only one side, I would suggest to you the advisability of taking advantage of your privilege to submit these matters to arbitration.”

While the architect insists that the contract was not performed, yet we think the court was warranted in finding that this contention was only an afterthought of both the architect and the owner, and that the owner, Dorsey, by his said conduct is estopped to now insist on said provisions. After Dorsey’s letter of innumerable complaints to the architect, dated September 8, 1905, more than a year after he had dealt directly with Kleinschnittger, the business of the architect was seemingly directed mainly to making complaints by almost weekly letters to the contractor, continuing for more than two months after Dorsey had taken possession of the building and was living in it. Any act of the owner under such a building contract which prevents the contractor from obtaining such certificate, or any conduct of the owner showing that he had waived such a provision, will release the contractor from the duty of procuring such certificate. Haunroth v. Peters, 50 Ill. App. 366; Foster v. McKeown, 192 Ill. 339; Vermont Street M. E. Church v. Brose, 104 Ill. 207; Fowler v. Deakman, 84 Ill. 132.

In regard to the provisions for arbitration it will be seen by Article XII that there is probably not a single item for which a decree is entered in this case that was required to be settled by arbitration. The question of arbitration was also waived. The architect made no allowances for extras, or orders for extensions of time to the contractor as provided in articles III and VII; and the parties to this contract proceeded without any reference to these provisions, and hence there was nothing requiring arbitration of these matters. Article XII providing for arbitration allows the contractor to select one of the arbitrators in case arbitration is had. Mr. Dorsey’s offer to arbitrate as shown by his evidence was on condition that Link, the architect, select one of the arbitrators, and Dorsey one, and those two arbitrators, the third one. This does not show an offer in good faith to arbitrate according to the contract. There is nothing in this case that binds the contractor to arbitration, or that entitles the appellants to arbitration, so far as we are able to see.

Kleinschnittger substantially performed his contract to build this house, and is entitled to recover the contract price added to the value of the extras contracted for by Dorsey, less any necessary expense of conforming the work to the exact requirements of the contract. A literal compliance with the specifications for a dwelling house is not necessary to a recovery by a contractor, if he has in good faith made a substantial performance thereof. Keeler v. Herr, 157 Ill. 57; Foster v. McKeown, 192 Ill. 347; Bloomington Hotel Company v. Garthwait, 227 Ill. 613; Hart v. Carsley Manufacturing Co., 116 Ill. App. 159.

The evidence for Kleinschnittger shows that he fur.nished extra materials for this house by reason of the changes made in its construction costing, $1,704.73. He also claims for extra work, $992.50. This latter sum is made up of the following sums: $346 extra for stone work which was agreed on and paid by Dorsey; the sum of $46 for extra plastering, $334.84 for scraping second and third story floors, and the other extras named by Mr. Kleinschnittger in his cross-examination. All of these items appear to be reasonable and their reasonableness is not challenged by the evidence. Many of these extras have already been paid for by Dorsey as is shown by the evidence. By the contract price he was to have $20,538. This makes a total charge against Dorsey in favor of Kleinschnittger of $23,235.23. The total payments claimed by Dorsey are $18,015.60, leaving a balance in Kleinschnittger’s favor of $5,219.63. Of this sum Boals P. M. Company are entitled to $3,088.75, leaving still a balance of $2,130.88. The court only decreed for Kleinschnittger the sum of $744.38, showing that the court charged up to Kleinschnittger $1,386.50 for bad work, or for damage by reason of bad work and delay. The account is not stated by the court and we cannot ascertain what this charge of $1,386.50 against Kleinschnittger is composed of. Under the evidence we think it quite enough to allow for damages for defective work and delay.

We have examined all the evidence with reference to the mill work and lumber of the M. H. Boals Planing Mill Go. and are satisfied with the court’s finding that it was entitled to a lien for full payment of the amount claimed. It appears that the mill work condemned by the architect and some other carpenters, came out of the same car that the Haskell Mill work did, and that it was the same kind costing the same money. The architect pronounced that the Haskell Mill work was first class. We have also examined the extravagant claims for damages in the report of Bamsey and Evans to the architect made January 2, 1907, while the family were in the house and almost a year after Dorsey had taken possession thereof. We have also examined the testimony of all the other witnesses in the case. While it is true that in some respects the workmanship on this house is inferior and in a few particulars omissions were made, yet we feel quite sure that substantial justice has been done and the decree of the court in the main is right. The appellees have been very much handicapped in this case in obtaining evidence on account of the refusal of the appellant to allow them to inspect, or have inspected, the inside of this house for the purpose of permitting witnesses to reply to the testimony of the St. Louis and other witnesses for appellant. Mr. Dorsey admits that this request was made of him by appellees and he refused it: This was very unfair to appellees in view of the fact that appellants’ witnesses testified from recent personal inspections of the building that were refused to the witnesses of appellees.

In his account Dorsey has claimed the forfeiture for the full time the building was delayed in its construction. The contract provides that the contractor and the owner shall both be remunerated for any damage by reason of delay caused by the other. Dorsey’s and Kleinschnittger’s evidence shows that at least ten months or more of this delay was caused by Dorsey himself. Dorsey says in his testimony that he held Kleinschnittger off until May, 1904, before allowing him to begin the contract and that there was still further delay caused by him while he was trying to purchase the property of Mr. Pierson. Kleinschnittger’s evidence also fully shows that there was two or three months’ delay caused in the change in the stone foundation, six weeks’ delay in changing the tile roof to slate and two months’ more delay on account of Mrs. Dorsey’s indecision about the plumbing. Kleinschnittger also says that Mrs. Dorsey caused much more delay by making the other changes and by causing men to quit work by standing over them and complaining and by ordering the work stopped. While we are satisfied Kleinschnittger was responsible for some qf the delay, yet he cannot be charged with all of it nor with half of it under the evidence. Much of Dorsey’s evidence is given by way of naming defects in the building without proof as to the amount of the damage thereof. "Under the Mechanic’s Lien Act the burden of proof is upon the owner of establishing what damages, if any, should be allowed in mitigation of the amount claimed by way of lien. Miller v. Calumet Lumber & Manufacturing Co., 121 Ill. App. 56.

There was, however, one error in this decree. The two independent cases became consolidated by agreement. After they were consolidated they together simply formed one suit and were so treated by the court. Only one suit could be maintained under the Mechanic’s Lien Act. All parties having a lien or any interest in the premises must be brought together in one suit. If any party is omitted the suit will be dismissed for want of necessary parties. For this reason separate suits could not have been maintained. Granquist v. Western Tube Co., 240 Ill. 132. It was therefore error to charge up the appellants with all the costs in both suits, as they were originally brought as independent suits. All clerk’s and sheriff’s costs and all other costs made in the suit filed by M. H. Boals Planing Mill Company before the suits were consolidated should be decreed against the appellees in this suit as they both committed the common error of bringing two suits, both suits being brought by the same attorney.

The decree will therefore be affirmed in part and reversed in part and remanded to the lower court for further proceedings in accordance with the views herein expressed.

Affirmed in part, reversed in part and remanded.

Mr. Justice Shirley took no part in the decision of this case.


text:
    Anna Pagan, Executrix, Appellee, v. City of Highland, Appellant.
    1. Master and servant—duty of inspection. Timbers, ropes, chains, etc., that are to be employed in lifting or sustaining great weight, should be subjected by the master to a strain of at least equal weight to that to be lifted or sustained where human life is exposed.
    2. Notices—“An Act concerning suits at law for personal injuries and against cities, villages and towns,” construed. If the “person injured” was instantly killed, the notice provided for by this act need not state any residence with respect to such person, and the statute does not require that the notice shall state the residence of “the person to whom such cause of action accrued.”
    3. Evidence—what testimony by expert incompetent. It is not proper for a witness, though an expert, to pass his judgment upon an ultimate fact on which the jury must make a finding.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    Statement by the Court. The city of Highland appeals from a judgment of the Circuit Court of Madison county for the sum of $2,500 recovered by Anna Pagan, executrix of the last will of Fred Pagan, Sr., deceased, in an action on the case for the death of her husband, alleged to have been caused by the negligence of the appellant. The deceased was, and had been, a resident of the city of Highland for many years; and had been employed many times by the city as a common laborer on its streets. On November 28, 1907, he was employed by the city and placed in charge of the city’s foreman, Adolph Leutweiler, to assist in the work of raising a smoke stack at the city’s electric light plant. He was killed the same day about 4:50 p. m., on account of a defective link breaking in a chain around the smoke stack with which it was being hoisted, allowing the smoke stack weighing about two and one-half tons to fall upon and crush him through the roof of the electric light building on which the smoke stack was being erected. He left surviving him Anna Pagan, his widow, and one minor and several adult children. At the close of all the evidence the court denied appellant’s motion to direct a verdict of not guilty.
    The declaration charges that the city was possessed of and operating the light plant for lighting the streets of the city; that the deceased was then and there employed by appellant as a common laborer to assist the city in raising and placing for use as a part of said light plant the said smoke stack; • and that the city was guilty of negligence in providing and using an old chain with which to hoist the smoke stack which chain had defective links that were old, cracked and broken; and that a chain of the character used was not a proper appliance to be used for raising a smoke stack. Only the general issue was pleaded by the defendant to the declaration.
    It is insisted here by the appellant (1) that the trial court erred in denying appellant’s peremptory instructions; (2) the court erred in rulings on the evidence; (3) the court erred in overruling appellant’s motion for a new trial and in entering judgment.
    J. P. Stbueber and Warnock, Williamson & Burroughs, for appellant.
    O. H. Burton, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

In discussing the grounds for the errors assigned appellant’s counsel have presented them in their argument under five different heads which we will consider in the order argued.

First and Second. It is insisted that the appellant is not liable in this case because at the time the deceased was killed he was under the exclusive control of Leutweiler Bros, who were erecting the smoke stack as independent contractors; that no one had charge over them or right to direct them in any way in the work and that they owned and furnished the defective appliance that was used in raising the smoke stack; and that the deceased was the servant of the contractors at the time he was killed and that he was not the servant of the appellant at all. We have examined carefully the evidence in this record hearing on these questions. The evidence tends very strongly to show that Adolph Leutweiler was hired as a boss to take charge of the work and erect the smoke stack as the servant of the defendant. It is certainly clearly proved that he had charge and control of the men while doing the work and selected the defective chain in question with which to do the work. He testifies himself as a witness for the defendant that he was employed as boss and that he did not employ the deceased or any of the men who worked at this job. It is also clearly established by the evidence that the appellant employed all the men including the deceased to do this work and paid his executrix for his services therein. The further particulars of Leutweiler’s contract with the city does not appear, and considering the further fact that one of the city’s officers was assisting in this work at the time the deceased was killed, we think the jury were warranted in finding against the defendant in these contentions.

Third. We agree with appellant’s counsel that the charge in the third count of the declaration that a chain is not a proper kind of appliance to be used in hoisting this smoke stack is not proved. On the charges of negligence in the other counts the evidence in the record shows that the link of the chain that broke and let the stack fall on the deceased, had an old rusty crack or flaw that extended half or more through the iron in the link at the point where it is broken. The chain itself which is certified here as original evidence clearly shows that it was defective. It also appears from the defendant’s evidence that whether or not a chain. like this is reasonably safe for use in heavy lifting as was required in this case, cannot be determined by a mere inspection with the eye; that whether or not there are dangerous flaws or other rotten or unsafe conditions in the links must be determined by some more reliable test than by merely looking them over with the eye as was done in this case; and that such defects can be readily ascertained by the lifting or pulling test. No such test was made by the defendant, but the chain was simply inspected by looking it over with the eye. We think the jury were warranted in finding that the defendant was negligent in using the defective chain in question, and that by the exercise of ordinary care it would have discovered the defects in the chain. “Whether or not the duty of a master with regard to proper inspection has been performed by application of any given test is to be determined by considering whether that test will give indications as to the actual condition of the instrumentality in question. In the application of this principle the courts have usually proceeded upon the theory that a merely visual or occular inspection of external conditions does not satisfy the full measure of a master’s obligations, where the servant’s safety depends upon the soundness of the material of which an instrumentality is composed, or upon the firmness with which the separate parts of an instrumentality are attached to each other.” Timbers, ropes, chains, etc., that are to be employed in lifting or sustaining great weight, should be subjected by the master to a strain of at least an equal weight , to that to be lifted or sustained where human life is exposed. LaBatt’s Master and Servant, Vol. 1, 35 and notes; Armour v. Brazeau, 191 Ill. 125; Wrisley Co. v. Burke, 203 Ill. 257; Mo. Malleable I. Co. v. Dillon, 206 Ill. 152; Leonard v. Kinnare, 174 Ill. 537; Consolidated Coal Co. v. Haenni, 146 Ill. 625; The Ethelred, 96 Fed. Rep. 446; Flynn v. The U. B. Co., 42 Mo. App. 530.

Fourth. Section 2 chapter 70 Hurd’s Revised Statutes, 1908, page 1186, provides, that “Any person who is about to bring any action or suit at law in any court against any incorporated city, village or town for damages for personal injury, shall within six months from the date of injury—file in the office of the city attorney—a statement in writing, signed by such person,—giving the name of the person to whom such cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident,—and the name and address of the attending physicians, if any.” Appellant’s objection to the notice in this suit is that it fails to state the residence of the person injured and of the person to whom the cause of action accrued. On a careful examination of the above section it will be seen that it does not require that the notice state the residence of “the person to whom such cause of action accrued.” The “person injured” in this case, within the meaning of this statute was Fred Pagan, Sr., who was dead at the time said notice was filed, and the notice informs the city that he was killed November 28, 1907, as it then well knew. No action at law ever accrued to the deceased because he was killed instantly. The evident meaning of the statute is that the notice shall state the residence of the “person injured” at the date of the notice. Fred Pagan, Sr., the “person injured” in this case has had no existence in law since this cause of action accrued. For that reason he has had no place of residence within the meaning of the law. There was no physician for the same reason, and the notice does not even mention this fact. It was useless, therefore, as the appellant well concluded, not to object to the notice because the name and address of the physician was not given. While the statute is mandatory as to giving the required notice, as said in Erford v. City of Peoria, 229 Ill. 546, still it is not to be understood as requiring things that are impossible, or as requiring more than is therein specified. As there was no “person injured” in existence at any time after the cause of action accrued within the meaning of . the statute, there could be no residence of such a person, and his former residence was not required to be stated, and therefore we think the notice not subject to the objections made.

Five. We have examined the questions and answers of the witness, Mike Desmond, and the rulings of the court thereon; and while some of these rulings of the court may not be strictly accurate, we are unable to see wherein the defendant was materially prejudiced thereby. These rulings, however, w;ere generally right. Several of the questions were improper because the answers thereto would necessarily have invaded the province of the jury. It is not proper for a witness, though an expert, to pass his judgment upon any ultimate fact on which the jury must make a finding. On page 48 of the abstract this witness is asked to state what he would say with reference to this so-called old chain being such a chain as could be used with reasonable safety in hoisting the stack. Whether the chain was reasonably safe for this purpose is one of the ultimate facts on which the jury were required to make a finding. The question is properly framed in the next question asked by appellant’s counsel and the court ruled that the witness could answer it and he did answer it. It was proper if appellant could do so to show that the defects in this chain were open and obvious for the purpose of charging the deceased with notice of the defects. But when some of these questions were overruled by the court appellant’s counsel stated, “I offer to prove that from his examination of this link as a mechanic and from his experience as such, the link as it is now produced would give no evidence whatever of any weakness at the point where it broke, and that he would not hesitate to employ the link in the same manner it was employed by Leutweiler in lifting this stack.” While this evidence would serve to acquit both the deceased and the defendant of notice of obvious defects discoverable by mere inspection by the eye, yet the further testimony of this witness that flaws,' imperfect welds and burnt iron cannot generally be detected except by the pulling or lifting test, is one of the principal grounds why we think the jury were warranted in the conclusion that a reasonable inspection required the defendant to make such test. There can be no sort of doubt that the chain was in fact defective and dangerous. The real question is, did the defendant use ordinary care and diligence to ascertain if it was defective.

The judgment of the lower court is affirmed.

Affirmed.


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    Julia Stack, Administratrix, Appellee, v. East St. Louis & Suburban Railway Company, Appellant.
    1. Contbibutory negligence—how question as to whether person was guilty of, in approaching crossing, determined. Where the view of a person approaching a railroad or street car track on a public crossing is obstructed, due care on the part of the person so situated is a question of fact for the jury.
    2. Contributory negligence—how proof of exercise of ordinary care may he made. Ordinary care may be proven by showing the circumstances and surroundings of the party injured, at the time of the injury. In connection with the other circumstances surrounding the accident, the natural instinct prompting to the preservation of life and the avoidance of injury, and consequent suffering and pain, may also enter into the consideration of the jury in determining the question of due care of the person who has lost his life as a result of the accident. A failure to look and listen or to do any other particular áet cannot be said to be negligence as a matter of law, since there may be many circumstances excusing such failure. Such person had a right to assume that the railroad company causing the injury would do its duty by having its car under control and by giving the usual signals when passing another car unloading passengers. Anticipation of negligence in others is not a duty which the law imposes.
    3. Negligence—degree of care required at street crossings. A person in charge of a street car must exercise a greater degree oteare and watchfulness at street crossings than at other places along the route, and should notice whether the track is clear as they approach and sound the gong in warning. When a car approaches another from which passengers are alighting, it is the duty of the servant in charge of the approaching car to give warning of its approach.
    4. Pleading—when declaration states good cause of action after verdict. The failure of a declaration to charge notice of a defect is waived by the defendant pleading to the merits. A declaration so defective is good after verdict.
    5. Instructions—when properly refused. An instruction abstract in form, not based on any evidence in the cause, which assumes the facts stated therein and which if given would have justified the jury in considering it in the nature of a rebuke by the court to the plaintiff’s contentions, is properly refused.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Motees, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    Statement by the Court. This is an appeal by the East St. Louis & Suburban Railway Company from a judgment of the City Court of East St. Louis for the sum of $5,000 recovered by Julia Stack, administratrix of the estate of John Stack, deceased, appellee, in an action on the case for damages for personal injuries alleged to have been caused through the negligence of appellant, resulting in the death of appellee’s intestate. At the time of his death the said John Stack was twenty-seven years old, in good health and was earning $65 per month as policeman of East St. Louis, which went to the support of himself and his family. He left surviving him his widow and two infant sons.
    Appellant is operating a double-track electric suburban railway between the cities of Belleville and East St. Louis. The tracks of this line are constructed on the St. Clair county turnpike, which in East St. Louis is known as State street, and extend in an easterly and westerly direction. The west bound cars run on the northerly track and the east bound cars on the southerly track. State street at the place where the deceased was killed is crossed at right angles by Sixteenth Street, also a public street of East St. Louis running north and south. Officer Stack’s beat was in the easterly part of the city, extending about twenty-six blocks east of Sixteenth street. At this time he was on duty at night and until 7 o ’clock a. m. On May 11, 1907, at about 7 a. m., he got on one of appellant’s large interurban cars in the easterly part of the city and rode westerly down to Sixteenth street. As this car crossed the west line of Sixteenth street, it stopped to let off, and take on, passengers. Officer Stack got off this car on the north side about the time the car stopped, walked around behind it, and started to cross the east bound track in a southerly direction to the patrol box on the southwest corner of State and Sixteenth streets, to report in to headquarters. Immediately on stepping from behind the car from which he had alighted, he was struck by the corner of an east bound car of appellant just as he was stepping over the north rail of the east bound track. He was knocked down upon the fender of the car; but the fender broke and doubled back over him under the car where he was dragged easterly across Sixteenth street, crushed and killed.
    At the close of all the evidence the court denied appellant’s motion for peremptory instructions. The declaration charges appellant with negligence in failing to ring a bell or gong while approaching the place of the injury, in exceeding the speed limit of ten miles an hour fixed by the city ordinance, and in failing to keep in reasonably safe repair its fender on said car. It is insisted here by appellant (1) the trial court erred in refusing appellant’s peremptory instructions ; (2) the court erred in passing on instructions; (3) the court erred in overruling appellant’s motion for a new trial and in entering judgment.
    Schaefer, Farmer & Kruger, for appellant.
    M. V. Joyce and D. J. Sullivan, for appellee.
   Mr. Justice Duncan

delivered the opinion of the conrt.

In arguing that the court should have directed a verdict appellant insists that there is no evidence in the record tending to show that the deceased was in the exercise of ordinary care for his own safety at and just prior to his injury. This contention is based upon the claim that the deceased did not stop, listen or look to the west before going upon the track upon which he was killed, and upon the fact that had he so stopped, listened or looked before going on the track he could have seen the car and would have avoided the injury. The distance between the two cars while they were passing each other is proven to be not more than twenty-two inches. The car on which the deceased rode was standing at the west crossing as he passed around the east end of it, and entirely obstructed his view westward until he came to the north line of this narrow space between the cars. Where the view of a person approaching a railroad or street car track on a public crossing is obstructed, due care upon the part of the person so situated is a question of fact for the jury. Wallen v. N. Chicago St. R. R. Co., 82 Ill. App. 106; Chicago City Ry. Co. v. Robinson, 127 Ill. 11; C. B. & Q. R. R. Co. v. Gunderson, 174 Ill. 498; West Chicago St. R. R. Co. v. McCallum, 169 Ill. 240; Dukeman v. C. C. C. & St. L. R. R. Co., 237 Ill. 107.

Ordinary care may be proven by showing the circumstances and the surroundings of the party injured, at the time of the injury. In connection with the other circumstances surrounding the accident, the natural instinct prompting to the preservation of life and the avoidance of injury, and consequent suffering and pain, may also enter into the consideration of the jury in determining the question of due care of the deceased. A failure to look and listen or to do any other particular act cannot be said to be negligence as a matter of law, since there may be many circumstances excusing such failure. The deceased had a right to assume that the company would do its duty by having its car under control and by giving the usual signals when passing another car unloading passengers. Anticipation of negligence in others is not a duty which the law imposes. Dukeman v. C. C. C. & St. L. R. R. Co., 237 Ill. 107; St. L., P. & N. Ry. Co. v. Rawley, 106 Ill. App. 554; Chicago City Ry. Co. v. Fennimore, 199 Ill. 17; C. & N. W. Ry. Co. v. Dunleavy, 129 Ill. 148; Donelson v. East St. L. Ry. Co., 235 Ill. 626; Henry v. C. C. C. & St. L. Ry. Co., 236 Ill. 219.

It is also insisted as a further ground of appellant’s motion to direct a verdict that the manifest weight of the evidence proves that the defendant is not guilty of the negligence charged in any count of its declaration. Sixteenth street is shown by the evidence to be fifty or sixty feet wide between the property lines. The evidence further shows that the west bound car of appellant was stopped or about stopped on the west side of this street when the deceased got off of it on the north side; that he immediately turned and walked around the east end of the car southerly toward the south track and was close behind the west bound car when he reached the narrow space between the two cars. The evidence of the motorman on the east bound car corroborates this evidence by saying that the deceased was within two or three feet of the east bound car when he came from behind the other car, and that he was immediately struck and knocked down by the east bound car. The deceased then was evidently not far from the west crossing of Sixteenth street when he was struck. It is clearly proved that the deceased was then dragged under the ear across and near the east line of the street by the car, and was found to be .about six or eight feet west of the front end of the car close to the wheels, and that the front end of the car was only stopped from ten to twenty-five feet east of the east line of this street. The jury were warranted in finding from these facts that the deceased was dragged under the car forty to sixty feet as appellee claims and that the car ran some eight or ten feet farther after the motorman had done all that he could to stop the car by instantly reversing the power and applying the air to the brake-tire. The undisputed evidence in this record is that a car running eighteen to twenty miles an hour can be stopped within sixty feet. Considering the further fact that this car was dragging and crushing the body of the deceased, weighing about 225 pounds, while traveling this distance, we think the jury clearly warranted in believing that these facts corroborated plaintiff’s witnesses and in finding the defendant guilty of violating the -speed ordinance. We also think that the questions of due care on the part of the deceased and the negligence of the defendant in failing to ring a bell as it passed the standing car, were properly submitted to the jury as one of fact, and we are satisfied with their finding thereon. James Woolf oik, a witness for the defendant, stated that the motorman on the east bound car stopped ringing his bell when he got to the front end of the standing car. As these cars were about fifty or sixty feet long, if this witness is correct in this statement, the bell was not ringing at the critical time that the deceased was approaching this track; and if it had been so ringing and this car had been under proper control, as the motorman states it was, the deceased could have heard the bell, and in our judgment, would not have been injured. To fail to ring a bell within sixty feet of him was practically equivalent to a total failure, so far as his safety was concerned. After he had passed south of the standing car he apparently did see the car that struck him and threw up his hands, but the car was so close onto him and its speed so great that he was evidently unable to avoid it. Persons in charge of a street car must exercise a greater degree of care and watchfulness at street crossings than at other places along the route, and should notice whether the track is clear as they approach and sound the gong in warning. . When a car approaches another from which passengers are alighting, it is the duty of the servant in charge of the approaching car to give warning of its approach. Chicago City Ry. Co. v. Jennings, 157 Ill. 274; Chicago City Ry. Co. v. Jordan, 215 Ill. 393; Chicago City Ry. Co. v. Tuohy, 196 Ill. 410; West Chicago Street R. R. Co. v. Staltenberg, 62 Ill. App. 422; Chicago City Ry. Co. v. Robinson, 127 Ill. 12.

It is said that the additional count in the declaration does not state a cause of action because it fails to aver knowledge on the part of the defendant of the defective fender; and, that the negligence if proved, was not a proximate cause of the injury. Admitting all this to be true, it could not affect the case materially, as the other two counts and the proofs were ample to sustain the verdict. We think, however, that this count sufficiently states a good cause of action after verdict and that the objection that it did not charge notice of the defect was waived by the' defendant pleading to the merits. Ide v. Fratcher, 194 Ill. 552.

We do not think the court erred in giving instruction No. 1 for the plaintiff, or in refusing to give appellant’s first refused instruction. The substance of plaintiff’s No. 1 was approved by the Supreme Court in a similar instruction in Chicago City Ry. Co. v. O’Donnell, 208 Ill. on page 275. The expression in appellant’s first refused instruction, ‘'the motorman of a street car is not compelled to stop his ear, or constantly creep along for fear or in anticipation that some person may possibly throw himself in front of .or under his car,” etc., condemns it as vicious for many reasons too obvious for lengthy discussion. Such an instruction could in no way aid the jury in reaching a correct, unbiased verdict. It is an abstract proposition not based on any evidence in the case and assumes every fact stated in it, and, if it had been given, the jury would have been warranted in considering it in the nature of a rebuke by the court to the appellee’s contentions. Appellant’s second refused instruction is a substantial copy of the one found in the case of Seanlan v. Chicago U. T. Co., 127 Ill. App. page 411, is entirely applicable to this case, and is a good instruction, and ought to have been given to the jury instead of appellant’s twelfth given instruction found on page 147 of the abstract. This latter ‘instruction states the same doctrine in much stronger language for the defendant, and when read in connection with defendant’s given instruction No 1, and with all the other instructions given on the subject of ordinary care, seven in all, we are unable to see wherein the defendant was prejudiced by the refusal of said instruction.

The judgment of the lower court is affirmed.

Affirmed.


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    Mary Baker et al., Appellants, v. Allen Baker et al., Appellees.
    1. Wills—when distribution will be per capita. When the division is among a named class, such as heirs, heirs-at-law, legatees, or children and grandchildren, étc., the distribution is to be made per capita when the words, “equally,” “equal among,” or “share and share alike,” or other similar words are used to indicate an equal division, unless a contrary intention is discoverable from the will.
    2. Wills—when presumption in favor of per capita distribution rebutted. The presumption in favor of a per capita distribution yields readily in favor of a faint indication of the testator that the distribution shall be per stirpes.

    3. Wills—how to be construed. The cardinal principle in construing a will is to ascertain the intention of the testator. In no case is a court bound to confine itself to a single clause of the will and the language therein found to ascertain the testator’s intention as expressed in that particular clause; but the intention of the testator will be derived from a view of the whole will and of all its parts.

      4. Wins—when distribution will be per stirpes. Held, from the language of the particular will in construction as an entirety, that the distribution of the residue of the testator’s estate in question should be per stirpes.

    5. Wills—how words indicating equality of division are applied. Words indicating equality of division, such as “to be divided equally,” etc., do not necessarily mean a per capita equality, but they apply just as readily and appropriately to a per stirpes equality.
    6. Wills—how words of doubtful meaning construed. Words of doubtful meaning should be construed so as to harmonize with the plan or scheme of the testator, and where they are susceptible of two constructions that construction should be adopted which is most favorable to the heir nearest in relationship to the testator, and so as not to result in discrimination.
    7. Wills—how words occurring more than once construed. Words occurring more than once in a will are presumed to be used always in the same sense when the context does not show a contrary intention.
    Bill in chancery. Appeal from the Circuit Court of Pope county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the February term, 1909.
    Reversed in part, affirmed in part, and remanded with directions.
    Opinion filed February 11, 1910.
    Statement by the Court. This was a suit in chancery, begun in the court below, for the purpose of obtaining a judicial construction of the eleventh clause of the will of Thomas Baker, deceased, by Mary E. Baker and Charles C. Baker, executors, and Abraham Baker, Grover Baker, H. T. Barrett and John Barrett, all legatees of said deceased. The will was executed May 23, 1906, has been duly probated, and the clauses thereof that are material to the consideration of this appeal are as follows:
    “Second. To my beloved wife, Mary E. Baker, I give, devise and bequeath all my household and kitchen furniture, stock, grain and farming implements; also my home farm, to wit: (description of farm here follows) containing in all 160 acres, situated in Pope County, Illinois, to occupy and control the said farm until her death or second marriage, after which said land shall go and be equally divided between Abraham and Grover Baker, my sons. I further give and bequeath my wife, Mary E. Baker, two thousand dollars in notes and mortgages.
    “Third. I give, devise and bequeath my three thousand dollar bank stock of the National State Bank of Metropolis, and two thousand dollars in notes and mortgages to my son, Grover Baker.
    “Fourth. I give, devise and bequeath my three thousand dollar bank stock of the First National Bank, of Golconda, Illinois, and two thousand dollars in notes and mortgages to my son, Abraham Baker.
    “Fifth. I give, devise and bequeath to my son, C. C. Baker, five thousand dollars in notes and mortgages.
    “Sixth. I give, devise and bequeath to the children of Nancy Barrett, namely: H. T. Barrett and John C. Barrett, two thousand, five hundred dollars each in notes and-mortgages.
    ‘ ‘ Seventh. I give, devise and bequeath to the children of Julia Barrett Bamage one dollar each.
    ‘ ‘ Eighth. I give, devise and bequeath to Allen Baker one thousand dollars in notes and mortgages.
    “Ninth. I give, devise and bequeath to Lou Perrin, Beulah Baker, Alva Baker, Ruth Baker, grandchildren and the children of Sarah E. Rottman, deceased, (namely, Katie, Walter and Lela) four thousand dollars in notes and mortgages, to be divided equally, the children of Sarah Rottman to take their mother’s share only.
    “Tenth. I give, devise and bequeath to Addie Baker and Viola Baker, children of Thos. F. Baker, deceased, one dollar each.
    “Eleventh. And the balance of my estate, if any, I give, devise and bequeath (to be divided equally) to the legatees herein, except those that I have bequeathed one dollar each, namely: Julia Ramage’s and Thos. F. Baker’s children, legatees herein before named.
    “Twelfth. I hereby direct the legatees herein named be permitted, by the executors, to select either in person or by guardian, if a minor, the amount of notes and mortgages due them, in the order in which the legatees are herein given.
    “Thirteenth. I desire and direct that in case of the death of any of the legatees herein, before receiving their said legacy, that then and in that case the same' be paid to their heirs under the statute of descent.
    “Lastly. I hereby nominate and appoint Mary E. Baker, my wife, Chas. C. Baker, my son, without bond or compensation to be the executors of this my last will and testament, hereby revoking all former wills and codicils by me made.”
    Thomas Baker was married twice, his first wife having died more than twenty years prior to his death. He died August 16, 1906, leaving Mary E. Baker, his widow, and Grover Baker and Abraham Baker, two minor sons, as his only heirs by his second wife. These were the only legatees named in his will who lived with him at the making of his will and up to his death. The testator also had four children by his first wife, to wit: Charles C. Baker, Nancy Barrett, Henry Baker and Thomas F. Baker, none of whom were living when he made his will, except Charles C. Baker, one of the executors. The widow and the three surviving’ children are given specific legacies by this will in the second, third, fourth and fifth clauses thereof. Nancy Barrett left three children, H. T. Barrett, John C. Barrett and Julia Barrett-Ram-age, the last named having married and died in Kentucky, leaving children whose names are not found in this record. The children and grand-children of Nancy Barrett, deceased, are given specific legacies by the sixth and seventh clauses of the will. Henry Baker’s surviving children are Allen Baker, Lou Perrin, Beulah, Alva and Ruth Baker. He also left three grand-children, Katie, Walter and Lela, children of Sarah Rottman, his deceased daughter. Specific legacies are given to Henry Baker’s said children and grand-children by the eighth and ninth clauses of the will; and specific legacies are given to the children of Thomas P. Baker, deceased, in the tenth clause of the will. All these legatees survived the testator. Lou Perrin has died since leaving John Perrin as her only child and only heir. The farm devised to the widow is worth $3,500. The notes and mortgages, stocks, etc., amounted to about $42,000; and the amount remaining for distribution under the eleventh clause of the will is about $15,000. The court below adjudged and decreed that the residue mentioned in the eleventh clause of the will should be divided per capita among the fourteen legatees, i. e., into fourteen equal parts or shares, the widow, every child, and every grand-child, and every great grand-child, of the deceased taking one-fourteenth thereof; and that that is the true construction of the testator’s intention by said clause. The complainants appeal from that decree, and insist here, that under said clause, the legatees should take per stirpes, i. e. the widow to take one-sixth; every one of the three children of the deceased, one-sixth; and H. T. Barrett and John C. Barrett, together, one-sixth; and the children and grand-children of Henry Baker, deceased, all together, as a class, one-sixth; and that the legatees should not take per capita as held by the court.
    James C. Courtney, for appellants.
    Val. Mulkey, for appellees.
   Mr. Justice Duncan

delivered the opinion of the court.

The only question for our consideration in this case is as to the proper construction of the eleventh clause of said will, to wit: “And the balance of my estate, if any, I give, devise and bequeath (to be divided equally) to the legatees herein, except those that I have bequeathed one dollar each, namely: Julia Bamage’s and Thos. F. Baker’s children, legatees herein named.” When the words “equally,” “equal among,” or “share and share alike,” or other similar words are used to indicate an equal division among a class, the persons among whom a division is to be made take per capita, unless a contrary intention is discoverable from the will. This is true under the law of this state and most of the other states when the named class are “heirs,” “heirs at law,” “legatees,” or “children and grand-children,” etc. Kelley vs. Vigas, 112 Ill. 245; Pitney v. Brown, 44 Ill. 365; McCartney v. Osburn, 118 Ill. 403; Auger v. Tatham, 191 Ill. 296; Welch v. Wheelock, 242 Ill. 380; Best v. Farris, 21 Ill. App. 49; Fisher v. Skillman’s Executors, 3 C. E. Creen (18 N. J. Equity) 229; West v. Rassman, 135 Ind. 279; Bisson v. W. S. R. R. Co., 143 N. Y. 125; Hoppock v. Tucker, 59 N. V. 202; Ferrer v. Pyne, 81 N. Y. 281; Greery v. Skelding, 62 Conn. 499; Ruggles v. Randall, 70 Conn. 44; Raymond v. Hillhouse, 45 Conn. 469; Am. and Eng. Ency., 30 Vol., 721, 2nd Ed. These cases fully illustrate the rule, and all of them recognize it, although some of them hold that the distributions should be per stirpes for other reasons appearing in the particular wills considered.

The presumption in favor of a per capita distribution yields readily in favor of a faint indication of the testator that the distribution shall be per stirpes. If from the will, as a whole, a different intention appears, it will control, notwithstanding such words. See' same authorities above cited, and Am. and Eng. Ency., 30 Vol., 733, 2nd Ed. Similarly, the presumption in favor of a per stirpes distribution arising from the use of the words “heirs,” “heirs at law,” etc., without the use of the words “to be equally divided,” etc., will yield to a contrary intention on the part of the testator, either expressed or implied. Am. and Eng. Ency., 30 Vol., 734, 2nd Ed.; Richards v. Miller, 62 Ill. 417. In no case is a court bound to confine itself to a single clause of the will and the language therein found to ascertain the testator’s intention as expressed in that particular clause. Neither is it bound absolutely by any general rule of interpretation applicable to the language of that particular clause. “In the construction of wills the great object is to ascertain the intention of the testator, and this intention is to be gathered, not from one clause of the will alone, but from a view of the whole will, and of all its parts.” Morrison v. Schorr, 197 Ill. 563.

It is important then to examine into the other parts of the testator’s will and ascertain if there are any other facts or expressions therein to be found that lead to the conclusion that the distribution of this residuary estate should be per stirpes as contended by appellants. We find that the legatees who are to share in this residuary estate are fourteen in number, related to the testator in different degrees, and are his wife, his three children, seven of his grandchildren, and three of his great-grandchildren. All of his other heirs are excluded from any consideration in the distribution of this residuary estate. We also find that these same fourteen legatees take by specific devises practically all the other estate of the testator, the other heirs getting only the nominal sum of one dollar apiece. By the eleventh clause of the will the testator informs us in substance that these fourteen legatees are to have an equal division of this residuary estate; and by the other clauses of the will we see that he has made an equal distribution, or practically so, of all his other property by specific devises, giving slightly the best of this division to those whom by the twelfth clause he expressly declares nearest and dearest to him. The twelfth clause of this will directs that these legatees are to be permitted to select, in person or by guardian, the amount of notes and mortgages due them in the order in which the legacies are given. By this expression he calls our special attention to the fact that he has named his legatees in a certain order and that they are to be favored by being permitted to select their property in the order they are named. This indicates clearly who were first in his thoughts, and leads us to expect that they will be at least treated as well as the persons who are to take the last choice. But this order in which his devises are given suggests also his plan of division and what he meant by equal division. Note how he makes it. He divides it into practically six equal parts, in a certain order, giving first choice to the widow, the next two to his minor sons, the next to his oldest son, and the last two to his selected representatives of his deceased daughter, Nancy, and son, Henry, the last choice falling to the set of heirs containing the great-grandchildren, or those most remote from him in kinship. His plan was to treat his children, living and dead, except Thomas F. Baker, with practically equal consideration, giving the children of his second wife a little the best of it, and to give his widow an equal share with them, as manifested by his own division in the specific devises. The little deviations that he made by recognizing H. T. Barrett and John C. Barrett and Allen Baker as favorite grandsons in no way militate against the idea that he had in mind a per stirpes distribution. Each class of these deceased children’s descendants when the legacies are summed up get the same sum, $5,000, in notes and mortgages. It must be remembered that this residuary sum of $15,000 is personalty, notes and mortgages, and that a statutory division under the statute of descent would give to the widow one-third of this residuary sum. So it is clear that the testator had no such division in his mind. He only wanted the widow to have an equal share. He does not say in specific words what he considered an equal division; but impliedly he says, “divide it equally according to my notions of equality as heretofore expressed.” Apparently wherever he desired to favor one child or grandchild more than another he took the pains to do so in plain specific words. As to the residue it is to be divided equally—without discrimination. This idea that he had his legatees in mind as a class is further emphasized in the eleventh clause of the will itself by the language of the exception ■ therein, to wit: ‘ ‘ except those that I have bequeathed one dollar each, namely: Julia Bamage’s and Thos. F. Baker’s children, legatees herein before named.”

Now if we divide this residuary estate per stirpes as contended by appellants the plan of the testator in the matter of dividing his property will be maintained, and it will in every way be in harmony with his expressed intention and desires. The widow will then receive a life estate in real estate worth $3,500 and $4,500 in notes and mortgages, and the household and kitchen furniture, stock, grain and farming implements, in all of the probable cash value of $7,500; each of the two minor sons will receive bank stock and notes of the value of $7,500 and the remainder in fee of the farm; Charles C. Baker, the other son, and the said legatees, heirs, of Nancy Barrett and Henry Baker, deceased, will receive $7,500 each as a class. In other words it will make a practically equal division of the estate, and still make good the idea of the testator expressed in his will that his wife and two minor sons are first in thought and therefore slightly favored by him. A division per capita reduces the widow’s share and the share of all the three sons $1,500 and would give to the widow and three sons practically $6,000 a piece, $7,000 to the two children of Nancy Barrett, and $13,000 to the heirs of Henry Baker, deceased, or more than twice the amount given to his widow or Charles C. Baker, who are the chosen executors of the deceased who are to serve without compensation by express provision of his will. It will be noted also that by this per capita distribution the heirs of Henry Baker, deceased, would take four-sevenths of the residuary estate or more than the combined shares therein of all the other legatees. So the remote heirs of the testator would take the largest shares in the testator’s estate, and the common idea of equality and justice would be overturned, and the expressed will of the testator defeated, as it seems to us, by this mode of division.

There are other reasons from a legal standpoint why the division should be per stirpes. Words indicating equality of division, such as “to be divided equally,” etc., do not necessarily mean a per capita equality of division, but they apply just as readily and appropriately to a per stirpes equality. Pitney v. Brown, 44 Ill. 366, and authorities first cited herein.

Words of doubtful meaning should be construed so as to harmonize with the plan or scheme of the testator; and where they are susceptible of two constructions, that construction should be adopted which is most favorable to the heir nearest in relationship to the testator, and so as not to result in discrimination. Young v. Harkleroad, 166 Ill. 318; Wardner v. Seventh Day Baptists, 232 Ill. 606; Am. and Eng. Ency., 30 Vol., 666, 667, 668.

Words occurring more than once in a will are presumed to be used always in the same sense when the context does not show a contrary intention. 30 Am. and Eng. Ency. 671. The identical same phrase “to be equally divided,” found in the eleventh clause, and which is the real subject of contention in this case, is found in the ninth clause of this will where it is clearly and expressly defined by the testator to mean a division per stirpes.

For the foregoing reasons we conclude that the learned trial judge erred in his holding that the division of the residuary estate should be divided per capita; that the said estate should be divided into six equal parts giving to the widow and the three sons of the testator one each of said parts; to H. T. Barrett and John O. Barrett each a one-twelfth of said estate; and to every one of the five children of Henry Baker, deceased, or their heirs, one-thirty-sixth part thereof; and to every one of the grandchildren of Henry Baker, one one-hundred-and-eighth thereof.

The decree of the court, ordering the executors to pay the guardians ad litem fees of $15 and $100, respectively, is right and warranted under the law. The decree of the lower court is therefore reversed in part and affirmed in part, and the cause is remanded with directions that a decree be rendered ■ in conformity with the views herein expressed.

Reversed in part, affirmed in part and remanded with directions.


author: Mr. Justice Shirley

text:
    J. T. Francis, Appellee, v. W. H. Bridges et al., Appellants.
    1. Decebes—when recitals conclusive as to jurisdiction of parties. Upon collateral attack, a decree which recites that the court had jurisdiction of the subject-matter and of the parties is conclusive upon the question of the jurisdiction of the court of the persons of such parties.
    2. Decebes—how far conclusive. A decree not appealed from is binding and conclusive upon the parties thereto and all persons claiming under or through them after the institution of the suit resulting therein and service upon such parties.
    Petition for writ of assistance. Appeal from the Circuit Court of Massac county; the Hon. W. W. Duncan, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    O. B. Morgan, for appellants.
    Feed Smith and H. A. Evans, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Massac county granting a writ of assistance against appellant, Joe Sanders.

At the January term of said court, 1909, appellee filed a bill to foreclose a chattel mortgage executed by appellant Bridges to appellee upon a pair of horses. At the same term there was a decree of foreclosure against Bridges. At the April' term following, the attorney for appellee filed a petition reciting the decree of foreclosure and alleging that at the time of entering the decree the property covered by .the mortgage was in the possession of Bridges; that when a demand pursuant to the decree had been made upon Trim, he immediately took the property out of Massac into Johnson county and turned it over to one O. B. Morgan who in turn transferred it to appellant Sanders who lived in Johnson county; that Morgan had full knowledge of the decree and the demand on Bridges. The petition prayed a citation to Sanders to show cause why a writ of possession should not issue against him for the property. Appellant Sanders answered the petition, setting up that the mortgage became due October 1, 1908; that the bill to foreclose was filed October 7, 1908; that appellee did not take possession of the property; that it remained in possession of the mortgagor from the 1st until the 9th of October, during which time the property was in possession of Bridges in Massac county; that on October 9th Bridges confessed a judgment for $163.46 in favor of O. B. Morgan before a justice of the peace in Johnson county upon which execution was sworn out which was on the same day levied on the horses; that the horses were advertised and sold by virtue of the execution to said Morgan for $225; that Sanders purchased the horses from Morgan in good faith for a valuable consideration without notice of any suit concerning them; that Morgan had no such knowledge until after the horses had been levied upon by the constable; that he, Sanders, denies Bridges was in possession of the horses when the decree was rendered or that he had been in possession since October 9, 1908, and that Morgan’s debt was legal and valid and he purchased the horses in good faith.

Appellant Bridges also answered denying he was ever served with summons in the foreclosure suit, or that he was in possession of the property at the time the decree was rendered or had been since October 9, 1908; that on that date Morgan recovered a valid judgment against him before a justice of the peace in Johnson county upon which on the same day execution was issued and levied on the property and that he had not had possession since that day. He further answered denying he turned the property over to Morgan; that appellee never took possession of the property under the mortgage which was due October 1, 1908, although the property remained in his (Bridges) possession in Massac county, until October 9, 1908.

Replications were filed, evidence heard and the court entered a decree reciting the decree of foreclosure of the mortgage in which the master was directed to sell the property if the amount found due was not paid within ten days and finding the bill to foreclose was filed October 7, 1908, and that service of summons was had on Bridges October 8, 1908; that after service of process on Bridges, he removed the property out of Massac county and delivered it to O. B. Morgan who received it pendente lite and who thereafter delivered it to Joe Sanders who was in possession; that the filing of the bill and summons upon Bridges constituted a lien on the property in favor of appellee Francis. It was therefore ordered that a writ of assistance issue against Sanders and all persons claiming under him commanding him to deliver to the officer of the court on demand the property.

■ The evidence showed appellant Bridges had possession of the horses in Massac county until October 9, 1908, when he took them to Johnson county where they were levied upon to satisfy an execution issued upon a judgment in favor of O. B. Morgan; that they were sold under the execution to Morgan who after-wards transferred them to appellant Sanders. The suit to foreclose the mortgage on the horses was filed by appellee on October 7th and the evidence in this record shows service of summons on Bridges on October 8, 1908.

It is insisted, first, there never was any legal service of the summons on Bridges in the foreclosure proceeding; that it was served hy A. A. Sharp, special deputy sheriff, and that there is no evidence in the record that Sharp was legally appointed special deputy as his appointment by the sheriff is not endorsed on the writ itself.

The decree of foreclosure was rendered at a term of court prior to that which granted the writ of assistanee from which decree there was no appeal or writ of error prosecuted to review that record, and it remains unchallenged and is not before us except in so far as any material matters in such former cause have been introduced in evidence and made part of the bill of exceptions. There was no evidence in this proceeding of any want of service on Bridges in the foreclosure suit. The only reference to such service in evidence and preserved by the bill of exceptions is contained in the decree which was introduced in evidence. The decree recites the court had jurisdiction of the subject-matter and the parties and since this appeal from the order of the court granting the writ of assistance does not bring before us for review the proceedings in the foreclosure suit not introduced in evidence in this case, the recitals in the decree are conclusive upon the question of jurisdiction of the person of Bridges.

The bill to foreclose was filed on October 7, 1908, and it appears from the decree of foreclosure in evidence that service was had on Bridges October 8, and it further appears from the evidence that he took the horses out of Massac into Johnson county October 9, where they were afterwards levied upon and subsequently transferred to appellant Sanders. The decree rendered was binding and conclusive upon Bridges and all persons claiming under him or through him after the suit was brought and service had on Bridges. McCauley et al. v. Rogers et al., 104 Ill. 581.

The court had jurisdiction of the subject-matter and of Bridges and as Sanders’ claim of title to the property was derived through or under Bridges, he is bound by the decree.

Upon a careful consideration of the evidence we are of opinion appellee did not lose his lien by a failure to take possession of the property after the mortgage became due. There was an effort to do so in apt time but Bridges refused to give it up. Moreover, the lien was preserved by the lis pendens before the rights of any third party intervened.

We are of opinion there was no error in granting the writ of assistance and the order of the Circuit Court is affirmed.

Affirmed.

Mr. Justice Duncan took no part in the consideration of this case.