text:
    Bridget Welch, Appellee, v. New Harper Hotel Company and Memie DeSilva, Appellants.
    Gen. No. 6,018.
    1. Negligence, § 142

      —what is doctrine of res ipsa loquitur. Where a thing which is alleged to have been the cause of an accident is shown to have been under the management of defendant or his servants, and the accident is one which in the ordinary course of things does not happen when those having the management of the thing use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care.
    2. Negligence, § 142

      —when doctrine of res ipsa loquitur inapplicable. The rule of res ipsa loquitur has no application to a case where the thing alleged to have been the cause of an accident does not: require direction or management in its operation and use, such as, for example, an electrical appliance used to furnish power for elevators, which appliance is stationary, and works automatically without manipulation and without the need of an interposing or independent agency to direct the performance of its functions.
    3. Negligence, § 140

      —when burden of proof on plaintiff to sustain charge of negligence. Where an action is based on specific charges of negligence, plaintiff has the burden of proving such specific charges as laid.
    4. Master and servant, § 584

      —when no presumption of negligence arises from occurrence of fire. In an action by a servant to recover for personal injuries due to a fire alleged to have been started as a result of defendant’s negligence, the fact that a fire occurred whereby plaintiff was injured raises no presumption of negligence.
    5. Master and servant, § 687

      —when evidence insufficient to establish application of doctrine of res ipsa loquitur. In an action to recover for personal injuries sustained as a result of a fire which was alleged to be due to the negligence of defendant, where plaintiff invoked the rule of res ipsa loquitur, evidence held to have no tendency to show that the accident was due to the “management” of defendant or its servants even though the word “management” used in the rule invoked can be construed as having the same meaning as “use,” where the thing from which the fire in question was alleged to have originated was an electrical appliance used to furnish power for elevators, which worked automatically and without manipulation, as it is clear that such appliance in the ordinary course of its use by defendant would not be likely to cause a fire.

      6. Master and servant, § .687

      —when evidence sufficient to repel presumption that use of elevator power furnishing appliance involved danger from fire. In an action to recover for personal injuries sustained as a result of a fire alleged to be due to defendant’s negligence, where plaintiff invoked the rule of res ipsa loquitur, and where the fire was alleged to have originated from an electrical appliance used to furnish power for elevators, and which worked automatically without manipulation or management by defendant or its servants, evidence that such appliance had been in daily and safe use for ten years held to repel any just assumption that the use of such appliance involved danger from fire.
    7. Master and servant, § 687

      —when evidence insufficient to establish negligence in management or construction of elevator power furnishing appliance. In an action by a servant to recover for personal injuries sustained as a result of a fire alleged to have been due to defendant’s negligence, where the specific facts relied on as proving negligence were the improper management and construction of an electrical appliance used to furnish power to elevators, from which the fire was alleged to have originated, evidence held insufficient to prove negligence, there being no evidence of improper construction of such appliance, or that the fire was caused thereby, and It appearing that such appliance worked automatically, without management by defendant.
    8. Master and servant, § 699

      —when evidence sufficient to sustain finding of contributory negligence in failing to escape from burning building. In an action by a servant to recover for personal injuries as the result of a fire alleged to have been caused by the negligence of defendant, where the fire occurred in a hotel belonging to defendant wherein plaintiff was employed as a chambermaid, evidence held conclusively to show a want of due care for her own safety on the part of plaintiff, where it appeared that plaintiff had ampié time and opportunity to escape after the commencement of the fire in question, but, although urged to do so, plaintiff made no effort to escape until the flames reached the place where she persisted in remaining.
    9. Negligence, § 66

      —what constitutes contributory negligence. One who voluntarily exposes himself to a danger of which he has knowledge, or who fails to exercise ordinary precautions to avoid such danger, thereby bars a recovery for injuries resulting therefrom.
    Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmstead, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of facts.
    Opinion filed September 13, 1915.
    Searle & Marshall, for appellants.

      Murphy & Larson and J. T. & S. R. Kenworthy, for appellee.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the appellee, Bridget Welch, sued the appellants, the New Harper Hotel Company and Memie DeSilva, the owner of the hotel building, in the Circuit Court of Rock Island county, to recover damages for injuries suffered by her as the result of a fire which took place in the hotel on December 10, 1910.

The fire originated in the attic of the hotel about noon on the day mentioned. In this attic an electrical appliance and equipment had been installed and was in use for the purpose of running a passenger elevator. It had been placed on a platform built of wood and supported by wooden timbers, and was located at the top of the elevator shaft, about six or eight feet above the floor of the attic. The appellee was employed in the hotel by the Hotel Company as a chambermaid, and at 'the time of the fire was pursuing her employment on the fifth floor, which is immediately under the attic floor.

There is a,hallway running through the center of the main wing of the hotel, and the elevator is situated about one-third of the way from one end of this hallway, where another hallway branches off at right angles. This hallway which branches off runs through the center of the other wing of the hotel and at the end of it there is a stairway leading down to the floors below. There is also a stairway leading to the floor below directly opposite the elevator.

The fire was first noticed by one of the chambermaids in the hotel, and she gave the alarm and called the appellee, who came to the elevator. The appellee noticed the fire, which at that time was in the attic and apparently near the top of the elevator shaft, and the shaft appeared to be on fire near the top, also the floor of the attic near the shaft. The appellee thereupon got her clothes out of the “pantry,” which was near the elevator shaft, and took them down the hall into a room situated at the far end of the hallway, and away from the elevator and stairway. She claims that when she came out of this room, which she says was room 71, the hallway had become filled with smoke, and she had to grope along the hallway in trying to escape through the smoke, and in that way she must have come in contact with the flames, "which by that time had reached down the elevator shaft to the fifth floor. She was severely burned about the face and hands, wrists and arms, and elbow, and some permanent scars and injuries resulted therefrom.

The electrical appliance and equipment mentioned was a motor with connecting wires carrying a 500-volt direct current of electricity, and a ground return. It had been installed in the hotel about ten years before the fire and had been in daily use during all that time. It was the kind of appliance and equipment that was in general use at the time it was installed, and was then used in most of the larger buildings, public and private, in and about the City of Eock Island and adjoining cities.

The declaration consisted of three additional counts filed by the appellee, the original count having been eliminated from the case by a demurer, which had been confessed by the appellee and sustained by the court. Each of the additional counts contained a distinctive charge of negligence and an averment of due care on the part of the appellee.

The first count charges: “That the defendants so recklessly, negligently and unskillfully managed the said machinery and electrical equipment erected at the top of said elevator shaft that the same became ignited and set fire to the portion of said building surrounding said elevator shaft.”

The second count charges: ' ‘ That said elevator and said electrical devices and equipments had been changed, remodeled and repaired and installed by the said defendants acting jointly shortly before the day last aforesaid, and that in so remodeling and repairing said electrical devices and equipments, the said defendants made use of and installed on the inside of said building, and close to and around a certain elevator shaft in the front part of said building, a large number of wires for the purpose of carrying the electricity* and it then and there became and was the duty of the said defendants to properly insulate and protect said wires and take all reasonable precaution to keep the said wires properly insulated and guarded while so used with the electrical current as aforesaid, and that the defendants did not take reasonable precaution to guard said wires, and did not keep and maintain said wires properly insulated.”

The third count charges: ‘ ‘ That the fuse connecting up the said elevator machinery with the electrical current had burned out, and that it was the duty of the defendants to replace said fuse with another safe and approved inclosed fuse; that the defendants neglected to do this, but connected up the said machinery with said current with a piece of wire or other metal, which rendered said electrical machinery and‘equipment unsafe and liable to be excessively charged with electrical current.”

The appellants filed a plea of the general issue to these three counts, and upon issue joined, a trial by jury was had, which resulted in a verdict finding the appellants guilty, and assessing appellee’s damages at $4,500. The appellants made a motion to set aside the verdict and for a new trial, which was overruled by the court, and a judgment was rendered upon the verdict. The case was then brought to this- court on appeal. Two questions appear to stand out prominently for consideration in review of this case, namely, whether or not there is any evidence to sustain the charges of negligence in the declaration, and whether or not the injuries sustained by appellee were occasioned by her own lack of care and caution.

On the question of the proof of negligence it is insisted by appellee that the rule of res ipsa loquitur applies. This rule has been tersely defined as follows: “Where the thing is shown to be under the management of the defendant; or his servants, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” Scott v. London Docks Co., 3 Hurl. & Colt. 596.

The electrical appliance and equipment in use in the hotel consisted of a motor and connecting wires. There was no management required in its use. It was stationary, and acted automatically without manipulation. The application of an interposing or independent agency was not needed to direct the performance of its function, which was to furnish the power to run the elevator of the hotel. Where the apparatus is one that does not require direction or management in its operation and use, as in this case, it is evident that the rule of res ipsa loquitur can have no application. And we are unable to perceive anything in the nature of this case whiph would take it out of the general and well-established rule that where a plaintiff bases a right of recovery upon specific charges of negligence, which are set out in the declaration, such specific charges must be proved as laid; and the burden of proof is upon the plaintiff. (Ebsery v. Chicago City Ry. Co., 164 New Harper Hotel Co 518; La Salle County Carbon Coal Co. v. Eastman, 99 New Harper Hotel Co App. 495; Geraghty v. William Grace Co., 157 New Harper Hotel Co App. 309.)

If the electrical appliance in question set fire to the hotel, it is clear that it was not in consequence of any management or manipulation on the part of the appellants or their servants. If, however, the term “management” could be construed to have the same meaning as the “use” of the appliance and equipment, it is just as clear that this appliance and equipment, in the ordinary course of its use by the appellants, would not likely cause a fire. The fact that it had been in daily and safe use in the hotel for as long a period as ten years would of itself do away with any just assumption that there was any fire danger from its use. And there is no proof that the electrical appliance caused the fire. The fact that a fire occurred would not of itself raise any presumption of negligence. (Bryan v. Fowler, 70 N. C. 596.)

There is no evidence in the record of the negligence charged in the first count of the declaration, nor is there any evidence to show that the electrical devices or equipment in question were out of repair, or that the wires, which were a part of the equipment, were not properly insulated and guarded, as charged in the second count of the declaration. And we find no evidence to show that a fuse connecting the electrical machinery with the electrical current used had been burned out, and had been replaced by a piece of wire or other metal instead of another safe and approved fuse, as charged in the third count of the declaration. None of the allegations of negligence made in the three counts of the declaration are proved, ,and hence there is no evidence to sustain the verdict or the judgment.

On the question ,of lack of due care and caution on the part of appellee for her own safety, the evidence is conclusive. It is clear that she had ample time and opportunity to get away from the fire in safety, but that she persisted in remaining in the proximity of the danger, and in spite of repeated warnings and entreaties to come away she voluntarily remained on the scene, and not until the spreading flames and smoke came down the hallway of the fifth floor did she make any effort to escape. She admits, in her own testimony, that after her attention had been called to the fire she could have gone away from it with perfect safety. Her testimony on that point on page 23 of the abstract, is as follows:

“X. Q. Was there anything to hinder you then from walking right down that stairway?
“A. No more than the other stairway, but I went to 71.
“X. Q. Just answer the question. Was there anything to prevent you after you got your clothes, from walking to the west end of this hallway and going down that stairway?
“A. No, sir.
“X. Q. And you could have gone out that way at that time in perfect safety, couldn’t you?
“A. Yes.”

It was her duty to look out for her safety, and to withdraw from the danger as soon as she had knowledge of it; and if she failed to do so, and voluntarily continued to expose herself to such danger, she did so at her own risk. Having been injured because of her own neglect, she has no one to blame but herself. One who voluntarily exposes himself to a danger of which he has knowledge, or fails to exercise ordinary precautions, thereby bars a recovery. (Chicago & E. 1. Ry. Co. v. McKnight, 16 Ill. App. 596; Schoeler v. City of Rockford, 160 Ill. App. 224.)

The judgment in this case is therefore reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment.

We find from the evidence that appellant is not guilty of the negligence charged in the declaration, and that appellee was injured because of her own lack of due care for her own safety; and that appellee has no cause of action against appellant for the injuries alleged in the declaration.


source: Caselaw Access Project

author: Mr. Justice Niehaus

license: Public Domain

text:
    William Callagan et al., Appellees, v. American Trust & Savings Bank, Appellant.
    Gen. No. 6,029.
    1. Chattel mortgage, § 167

      —when mortgagor has no estate in mortgaged property. After default and after possession taken by the mortgagee of personal property, the mortgagor has no estate in the mortgaged property.
    2. Chattel mortgage, § 167

      —what is estate of mortgagee talcing possession after default. When, after default in a mortgage of personal property, mortgagees take possession of such property, their title thereto becomes absolute and they become the legal owners thereof.
    3. Trespass, § 23*—what possession of personal property sufficient to maintain action. Although possession of personal property is necessary as matter of law in order to enable the owner thereof to maintain trespass against one in wrongful possession, yet actual possession of such property is not necessary to maintain the action, constructive possession being sufficient.

      4. Trespass, § 23

      —when mortgagee of personal property may maintain trespass. Mortgagees of personal property who after default have taken possession and have thereby acquired title to the mortgaged property are in constructive possession of such property so as to maintain trespass against one having unlawful possession thereof, where it appears that such owners were ousted of possession by the seizure of such property on an execution against the mortgagor, and where it further appears that such property was subsequently seized by the receiver in bankruptcy of such mortgagor as the property of such bankrupt.
    5. Evidence, § 159

      —what constitutes an admission in a pleading in a former trial. In an action of trespass by mortgagees of personal property, who after default have taken possession thereof, brought against the receiver in bankruptcy of such mortgagor, where it appears that after plaintiffs had been ousted of their possession of such property by a levy thereon on an execution against such mortgagor defendant seized such property as the property of the bankrupt, an averment by defendant in a verified petition filed in such bankruptcy proceedings for an injunction to restrain further prosecution of such action of trespass that plaintiffs had such possession is a direct admission that when defendant seized the property in question it took it from the possession of plaintiffs.

      6. Trespass, § 29

      —When officer talcing personal property a trespasser. Where mortgagees of personal property have acquired the legal title and ownership of such property by taking possession aftér default, an officer seizing the property on an execution against such mortgagor is a trespasser.
    7. Trespass, § 29

      —when trustee in bankruptcy taking personal property from, officer becomes a trespasser. Where mortgagees of personal property have acquired the legal title .and ownership thereto by taking possession of such property after default, and where such mortgagees are ousted of possession thereof by a levy thereon on an execution against such mortgagor, but secured possession by giving a forthcoming bond, the receiver in bankruptcy who takes possession of such property from such officer as the property of the bankrupt becomes a trespasser as to such mortgagees.
    8. Trespass, § 10

      —what constitutes a trespass to personal property. Any unlawful exercise of authority over the goods of another will support an action of trespass, even though no physical force be exercised.
    9. Trespass, § 29

      —when action lies against subsequent trespasser. Any person having the legal ownership of personal property may maintain trespass against a subsequent trespasser as well as the first.
    10. Trespass, §29

      —when trustee in bankruptcy taking possession of property from, officer a trespasser. Where mortgagees of personal property have extinguished the title of the mortgagor and perfected title in themselves thereto by taking possession of the mortgaged goods after default, the receiver in bankruptcy of the mortgagor who seizes such property as the property of such bankrupt is none the less a trespasser by reason of the rule that an officer acting in the line of his duty and within, the scope of his authority is not liable personally for his acts, for the reason that defendant’s authority under the order of the bankruptcy court extended only to taking possession of the property of the bankrupt and did not extend to property of plaintiffs, so that defendant therein exceeded its authority.
    11. Appeal and error, § 1764

      —when Appellate Court no power to increase judgment.

    The Appellate Court has no power to increase the amount of a judgment.
    Appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed September 13, 1915.
    Rehearing denied October 21, 1915.

      Certiorari denied by Supreme Court (making opinion final).

      Rosenthal & Kurz, for appellant; Duncan & O’Conor, of counsel.
    Charles S. Cullen and John H. Armstrong, 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. Justice Niehaus

delivered the opinion of the court.

This is an action of trespass, commenced in the Circuit Court of LaSalle county, by appellees William Callagan and Joseph Armstrong, copartners, doing business as Callagan & Armstrong, against the American Trust & Savings Bank, appellant. The case was tried by the court, a jury having been waived; and after hearing all the evidence the court found the issues in favor of the appellees, and assessed their damages at the sum of $1,031.27. After a motion for a new trial and a motion in arrest of judgment had been made by the appellant, and denied by the court, judgment was entered by the court for the amount of the damages assessed, and an appeal was thereupon taken to this court.

The evidence shows, that on or about August 14, 1909, Louis E. Fitzgerald was conducting a retail boot, shoe and clothing store at Sheridan in LaSalle county; and that on the day mentioned he executed and delivered to the appellees a chattel mortgage on certain personal property, which included his stock of goods. The mortgage was given to secure an indebtedness of $850, and the chattel mortgage was in the usual form and properly acknowledged and recorded, as required by the statute.

On August 22, 1909, a levy was made on the Fitzgerald automobile at Ottawa, but one of the appellees secured its release from the levy by signing a forthcoming bond for Fitzgerald. The next day, on the 23rd of August, the appellees, feeling themselves insecure in consequence of the levy which had been made, took possession of all the property described under the provisions of the mortgage, and put one of their employees in charge of the store and in custody of the property mentioned; and this was done with the consent of the mortgagor. Then, on August 24th, Charles E. Eowlson recovered a judgment in the Circuit Court of LaSalle county against Fitzgerald for $73.95, and an execution was issued to the sheriff and placed in the hands of the deputy sheriff to execute. The deputy sheriff found the appellees in possession of the Fitzgerald store and the property covered by the mortgage; but, nevertheless, he insisted upon making a levy of the execution and finally, by threatening to break down the door of the store, obtained the keys of the store from appellees and seized the stock of goods. He then placed a padlock on the door and put his own custodian in charge of the property. On August 28, 1909, bankruptcy proceedings were instituted against Fitzgerald in the United States Court at Chicago, by the Superior Brass and Fixture Company, and other creditors; and in these proceedings appellant was appointed by the court as receiver of the property and effects of Louis E. Fitzgerald, the alleged bankrupt.

The appellant, immediately upon its appointment, sent its agents down to Sheridan to take possession of the goods and property of Fitzgerald. Upon arriving at Sheridan these agents, under instructions from appellant, induced the sheriff to turn over the keys of the store to them, and thereupon seized the stock of goods and property in question, and against the will and in spite of the protest and objection of appellees, removed the property from the store and from the county to Chicago, where it was disposed of in some way.

It is well settled that the mortgagor, after default and after possession taken by the mortgagee, no longer has any legal estate in the mortgaged property. (Frankenthal v. Meyer, 55 Ill. App. 405; Kenyon v. Shreck, 52 Ill. 382; Simmons v. Jenkins, 76 Ill. 479; McConnell v. People, 84 Ill. 583.)

By taking possession of the mortgaged property in this case under the conditions of their mortgage, the title of the appellees to the mortgaged property became absolute, and they became legally the owners of the same. (Durfee v. Grinnell, 69 Ill. 371; Whittemore v. Fisher, 132 Ill. 257; Constant v. Matteson, 22 Ill. 559.)

The principal point made by the appellant in urging a reversal of the judgment in this case is that the appellees cannot legally maintain an action of trespass, because, at the time the property in question was seized by the appellant, the appellees did not have actual possession of the property. While possession is necessary as a matter of law, as a basis for maintaining an action of trespass, such possession in case of a legal owner need not be actual but may be constructive. (1 Chitty, 168.)

There can hardly be much doubt about the fact that appellees had possession of this property. It is not only clearly shown by the evidence but the appellant, after it had seized the property, averred it to be a fact in a verified petition, which it filed in the bankruptcy proceedings in which it was appointed receiver, for an injunction to restrain the prosecution of this suit. This averment in the petition was not only a direct admission by appellant but a direct assertion under oath that it took this property from the possession of the appellees. It is clear that the sheriff by levying the execution upon this property, which was in the possession of the appellees and to which they had acquired the legal title and ownership, became a. trespasser. (Pike v. Colvin, 67 Ill. 227; Durfee v. Grinnell, 69 Ill. 371; Simmons v. Jenkins, 76 Ill. 479.) And the appellant in taking this property from the hands of the sheriff, and by forcibly removing it against the will and objection of the appellees from the premises and from the county, and by thus depriving appellees of their property, was also guilty of trespass. Any unlawful exercise of authority over the goods of another will' support a trespass, even though no physical force is exercised. (Chicago Title & Trust Co. v. Core, 223 Ill. 58.) And the person having legal ownership may maintain an action for trespass, for taking his property, against the second trespasser as well as against the first. (Cox v. Hall, 18 Vt. 191.)

It is also insisted that in taking this property the appellant acted under the order of the United States Court, and as its officer, in its capacity as receiver, and that, therefore, it cannot be made personally liable. It is true that an officer who acts in the line of his duty and within the scope of his authority is not liable personally. But in this case, appellant’s authority, under the court order, extended only to the taking possession of the property of Fitzgerald, and did not include a right to seize any of the goods and chattels legally belonging to appellees. By doing so it clearly exceeded the authority received through the order of the court, and became a trespasser. (Pike v. Colvin, 67 Ill. 229.)

The appellees have assigned cross-errors, claiming that they are entitled to recover the full value of the property taken and that, therefore, the amount of the judgment should have been at least $1,800, and they ask this court to increase the amount of their judgment. Inasmuch as this court has no power to increase the amount of the Judgment, there is no occasion to consider the questions raised by the cross-errors.

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

Judgment affirmed.


text:
    William Payne, Appellant, v. Bruce L. Brownlee et al., Jennie McNamara and J. W. Duncan, Appellees.
    Gen. No. 6,037.
    1. Execution, § 64

      —how right of priority of lien lost. Any act of an execution creditor which diverts such execution from its proper purpose renders it dormant and inoperative as against other creditors and clothes them with priority as against it, since the object of an execution is to obtain satisfaction of the judgment on which it issues.
    2. Execution, § 64

      —how execution rendered presumptively fraudulent as to junior executions and writs. An attempt to make use of an execution for the purpose of obtaining merely security for the payment of the debt, although without fraudulent intent, renders the execution presumptively fraudulent as to junior executions and writs.
    3. Execution, § 70

      —when right to priority of Ken not waived. In a bill to foreclose a mortgage of personal property wherein the relative priority of an execution creditor over junior incumbrancers was involved, and where it appeared that an officer having the execution demanded and took security therefor, the execution creditor held not to have waived her priority, it appearing that such action of the officer was without the knowledge or consent of such creditor, but on the contrary he insisted on a levy thereof being made and the debt collected through its instrumentality.
    4. Chattel mortgages, § 85

      —when mortgagee having no knowledge of fraud of mortgagor obtains legal title. One whose title to personal property was obtained by fraud can give a chattel mortgage thereof and transfer a good-legal title thereby to a mortgagee who is not a party to and has no knowledge of the fraud, and who takes the mortgage in good faith.
    5. Chattel mortgages, § 156

      —when not entitled to priority over Ken of execution. In a bill to foreclose a chattel mortgage wherein the relative priority of liens senior to such mortgage was involved, where the lien of an execution was held to be first in priority, a decree holding the lien of a chattel mortgage which was valid, and prior in time to the lien of the mortgage sought to be foreclosed to be the second in order of priority, held proper.
    6. Execution, § 67

      —when entitled to priority over chattel mortgage. In a bill to foreclose a chattel mortgage wherein the relative priority of liens senior to such mortgage was involved, a decree holding that the lien of an execution was first in priority held correct, where it appeared that the lien of such execution was first in point of time and where there was no evidence of a waiver of such priority.
    7. Chattel mortgages, § 87

      —when fraudulent as to creditors. A chattel mortgage given by one to whom property has been transferred in fraud of creditors is invalid as being in fraud of creditors where the mortgagee is a party to the fraud or has knowledge of the fraudulent purpose with which such property was transferred to such mortgagor.
    8. Sales, § 187

      —when manual possession of crops by purchaser not necessary. A transfer of title to an interest in growing com is complete without a taking of manual possession thereof by the transferee.
    Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed September 13, 1915.
    Hanna & Lauder, for appellant.
    L. E. Murphy, for appellee Jennie McNamara.
    Hanley & Cox, for appellee J. W. Duncan.

      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. Justice Niehaus

delivered the opinion of the court.

This is an appeal from a decree entered by the Circuit Court of Warren county, in a foreclosure proceeding, fixing the priorities of 'certain liens claimed by the parties to this proceeding in the undivided half of the growing corn on ninety-five acres, the undivided half interest in the corn being the property of the debtor, Bruce L. Brownlee. Before the controversy arose, Bruce L. Brownlee had become indebted to the several parties to this suit. He had become indebted to appellant, William Payne, upon two promissory notes: one dated January 4, 1913, for $511, and due October 1, 1913; and another dated January 17, 1913, for the sum of $200, due October 17,1913.

These notes, had been secured by a chattel mortgage on certain horses and cattle owned by Brownlee. He had also become indebted to C. A. McLaughlin upon a promissory note for the sum of $136, which was also secured by a second chattel mortgage on the property covered by the mortgage to Payne. But the indebtedness represented by this note and mortgage was finally acquired by the appellant, Payne, and became a part of the claim which he held against Brownlee at the time of the filing of the bill of complaint. Brownlee also owed the appellee Jennie McNamara $290 for back rent, and she also turned over her claim against Brownlee to Ben Eilenberger, a constable, for collection. Eilenberger induced the appellee John W. Duncan to loan Brownlee $150 upon a promissory note for that sum, due October 2, 1913, which was secured by another chattel mortgage on the chattels embraced in. the mortgage to Payne. After obtaining the loan from Duncan, Brownlee was enabled to pay $230 on the McNamara indebtedness, and this amount was paid to Eilenberger for her and credited by. her upon the indebtedness. Brownlee then confessed a judgment for the balance of $60, due Jennie McNamara, before a justice of the peace.

In the following year, on March 29th, Brownlee became indebted to the appellant, Payne, in the further sum of $300, for which Brownlee gave him a promissory note of this amount, but no security was given for either of these notes at that time. On May 8th an execution was issued by the justice of the peace to Ben Eilenberger, as constable, on the McNamara judgment against Brownlee, and some efforts were made by the constable to collect it; but nothing was paid upon it, and the execution was subsequently returned “no property found,” and then another execution issued to the constable on July 17, 1913.

Brownlee raised the ninety-five acres of com in question in the year 1913, as a tenant on the so-called Ira Nichols farm, and it was laid by about the 10th of July, and in this corn he had an undivided half interest. On July 19th Brownlee executed a bill of sale to Peter M. Freed, who was his brother-in-law. The evidence shows that there was no consideration for this bill of sale, and that it was really executed for the purpose of putting off Brownlee’s creditors and to gain further time to settle his obligations. After he made this transfer of his interest in the corn to Freed, he absented himself for a period of three weeks, and paid a visit to the State of Minnesota. When Eilenberger found out that Brownlee had transferred the ninety-five acres of corn to Freed, he went to Freed and threatened to make a levy, and to seize some of Brownlee’s chattels unless Freed executed a chattel mortgage on the ninety-five acres of corn to Jennie McNamara and J. W. Duncan to further secure payment of their respective claims. Freed did execute a chattel mortgage to secure the payment of a note for $54 payable to Jennie McNamara, and of a note of $165 payable to J. W. Duncan; on August 15, 1914, mortgaging the undivided half interest of the ninety-five acres of growing corn in question. These papers were delivered to Eilenberger for the respective parties.

It may be well to say here, however,, that the evidence clearly shows that Eilenberger had no authority from the appellee Jennie McNamara to take a note and chattel mortgage for her claim, which was represented in the execution he held as constable, at that time, and that she had no knowledge that he had taken such note and mortgage, and that she never in any Way sanctioned nor ratified the act of taking it.

After Brownlee returned from his visit to Minnesota, he and the appellant Brownlee figured up the entire indebtedness held by Payne against him; and.on August 23, 1914, Brownlee, in order to secure the payment of the whole indebtedness as agreed upon, gave to Payne another chattel mortgage on his chattels and included the ninety-five acres of growing corn in question. This latter chattel mortgage is the one on which the lien claimed by appellant in this proceeding is based. At the time the appellant took his second chattel mortgage, the execution in favor of the appellee Jennie McNamara was in the hands of Eilenberger, as constable, and was a lien on the corn in question, and it was a first and prior lien, unless the appellee in some way waived or forfeited' her right to such a lien.

It is true as claimed by appellant, and a well-settled doctrine, that the object of an execution is to obtain satisfaction of the judgment on which it issues, and any acts of the creditor or direction from him or her to the sheriff or constable diverting an execution from its proper purpose renders it dormant and inoperative against other creditors, and clothes them with priority. (Gilmore v. Davis, 84 Ill. 487; Koren v. Roemheld, 6 Ill. App. 275; Kellogg v. Griffin, 17 Johns. [N. Y.] 274; Knower v. Barnard, 5 Hill [N. Y.] 377.) An attempt to make use of an execution, even without fraudulent intent, merely for the purpose of security is a perversion of the right, and renders it constructively fraudulent as to junior executions and writs. (Everingham v. National City Bank of Ottawa, 25 Ill. App. 645.) Nothing of that kind, however, is disclosed by the evidence in this case; in fact it is very evident that the appellee McNamara relied very strongly on the proper purpose of her execution, and insisted at all times upon having it levied, and the debt recovered through its instrumentality, and she never in any way appears to have waived her right to having it done. We think, therefore, that the Circuit Court was right in holding that the lien of the McNamara execution was first in the order of the liens involved. The' appellee Duncan acquired his lien on the corn in question by the chattel mortgage executed by Peter M. Freed, and appellant claims that because the bill of sale, in which Brownlee’s interest in the ninety-five acres of growing corn was transferred to Freed, was without consideration and fraudulent as to creditors, the chattel mortgage to the appellee Duncan was necessarily invalid. On the assumption that Duncan was a party to the fraud, or was a party to the fraudulent transfer to Freed, or had knowledge of its fraudulent purpose, this would be a correct statement of the rule, but the evidence does not show that he was a party to the fraudulent transfer, or had any knowledge of its fraudulent character. So far as he was concerned, or knew, Freed apparently had a legal title to the growing corn in question, by the execution and delivery of the bill of sale. And the title-was legally complete, without Freed taking manual possession of the crop. (Ticknor v. McClelland, 84 Ill. 471.) Even if Freed did obtain the title of this property by means of fraud, he could legally transfer that title and create a valid lien, by giving a chattel mortgage upon it to a person who was not a party to the fraud and had no knowledge of it, and who accepted the mortgage given in good faith. (20 Cyc. 647; Jewett v. Cook, 81 Ill. 260; Kranert v. Simon, 65 Ill. 344.)

The chattel mortgage given by Freed to appellee Duncan appears to have been accepted by him in good faith, and without any knowledge of the fraudulent character of the bill of sale, and must, therefore, be regarded as valid. The lien-of this mortgage attached to the corn, prior in time to the lien of the chattel mortgage taken by appellant. The court, therefore, properly found that Duncan’s lien was second in the order of priorities.

We find no error in the adjustment of the priorities in the decree of the liens involved, and the decree should therefore be affirmed.

Decree affirmed.


author: Mr. Presiding Justice Dibell

text:
    LaSalle County Electric Railroad Company, Appellant, v. Alexander P. Wylie et al., Appellees.
    Gen. No. 5,946.
    (Not to be reported in full.)
    Appeal from the Circuit Court of LaSalle county; the Hon. Joe A. Davis, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.

      Statement of- the Case.
    Petition by the LaSalle County Electric Railroad Company, petitioner, against Alexander R. Wylie and others, defendants, in the Circuit Court of LaSalle county, to condemn a right of way across defendant Wylie’s land. From an order that defendant Wylie recover costs and reasonable attorney’s fees, fixed in the order at $250, and from a denial in part of a motion to retax the costs, petitioner appeals.
    Petitioner filed a petition in the Circuit Court of LaSalle county to condemn a right of way across a farm of one hundred and sixty acres owned by Alexander P. Wylie, and made defendants thereto said Wylie and his wife and his tenant. There was a trial and a verdict, fixing the compensation to be awarded, and a judgment in favor of petitioner, and the judgment limited the time within which the compensation fixed by the judgment should, be paid, as authorized by section 10 of the Eminent Domain Act (J. & A. ¶ 5260), as amended in 1897. The petitioner has never paid the compensation awarded. Wylie filed such a petition after the expiration of the time fixed, and there was a hearing thereunder, and the court allowed him $250 for his reasonable attorney’s fees, and ordered that he should recover his costs, and that execution should issue unless paid within a certain time.
    Wylie’s attorney charged him $350 for the services which he rendered, and the testimony of Wylie showed that he expected to pay that amount. There was testimony that this was the usual and customary fee, and testimony to the contrary. The court allowed $250. So far as the record discloses, the services performed may be briefly stated thus: The petition to condemn was filed on August 26, 1912, and the attorney was thereafter employed by Wylie. An answer was filed September 9,1912, amounting to no more than a pleading raising the question whether the petitioner had lawful authority to condemn', and, among other things, whether it had shown what kind of a railway it proposed to construct and by what power it proposed to operate, and it called attention to the fact that there were no maps, plats, profiles, or plans with the petition. From the whole record it appears that petitioner proposed to take thirty-three feet next west of the east thirty-three feet of Wylie’s farm, and that there was a highway on the east side of his farm, and it is evident that the intention was to take the thirty-three feet next west of the highway across the whole front of his farm. Wylie’s attorney made and argued a motion to dismiss the proceeding. He moved to strike the answer from the files and this was argued and denied, except as to the fifth paragraph thereof, which raised the question of the absence of the plans, etc., and of the failure to show in the petition whether the road was to be operated by steam, electricity or otherwise. Wylie’s attorney obtained an order requiring the petitioner to file its map or profile or plans, showing the elevation of the road as it passed over his land. He drew and filed a cross-petition, claiming damages to the rest of the farm. A jury trial followed, which took five days. The jury defeated Wylie on his cross-petition and awarded a less sum as damages than had been offered to Wylie before the suit was begun. Wylie’s attorney entered a motion for a new trial, which was argued and denied, and the petitioner had judgment in its favor upon payment of the compensation awarded, and Wylie took orders for an appeal, but seems not to have perfected the appeal. The amount awarded Wylie was $462.50, and the amount awarded the tenant was $10. The cross-examination of Wylie by the petitioner tended to show that he had offered to pay the railroad company $1,000 to go on the opposite side of the road. While the petitioner had the word ‘ ‘ Electric” in its corporate name, yet it was organized under the general railroad act, and had lawful authority to operate its railroad by steam, and did not by its petition profess to confine itself to an electric road. Wylie’s attorney had not only to perform the services above stated, but he had to prepare for the trial and to ascertain not only the law governing such a case but had to see and interview the witnesses by whom could be shown the value of the land taken, and also the effect of the taking upon the value of the rest of the farm, and the proof showed that he made a visit to the premises in preparation for the trial.
    Abstract of the Decision.
    1. Attorney and client, § 123

      —when court power to determine fees. The allowance of attorney’s fees rests on a basis different from any other allowance by a court, and while evidence is necessary in such case to show the ordinary and usual charges in similar cases where such fees are the subject of contract, yet the court is well qualified to form an opinion on this subject and will exercise an independent judgment thereon.
    2. Eminent domain, § 224

      —how attorney’s fees computed. In a proceeding by a railroad company to condemn a right of way across land of defendant, where the reasonableness of attorney’s fees allowed defendant was in question, which fees in part were for services rendered in an unsuccessful attempt to defeat the condemnation proceeding, the court, in determining such reasonableness, cannot treat the proceeding in which the services were rendered as merely one to recover the value of the land damaged, where it appears that the taking sought to be made was of land lying along the entire side of a farm adjoining a highway, and that condemnor, though ostensibly condemning for the purposes of an electric railroad, had also by statute the power to operate by steam at its pleasure, so that defendant might in the future have a steam railroad between his farm and the highway, which was a serious matter.
    3. Eminent domain, § 224

      —what is effect of amount of recovery in determining attorney fees. The fact that the recovery obtained by the services of an attorney in prosecuting an action is less than double what is awarded as attorney’s fees in a petition for condemnation of land is not conclusive of the reasonableness of such award, since there are many cases where the whole amount of the recovery would not be a fair compensation for the services rendered.

      Butters & Clark, for appellant.
    H. M. Kelly, for appellees.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

4. Attorney and client, § 123 —bow reasonable value of legal services should be determined. The determination of the reasonable value of legal services depends upon a consideration both of the nature and result of the controversy in which such services were rendered, the skill and labor required, the responsibility imposed and the standing and character of the attorney rendering such services.

5. Eminent domain, § 224 —when amount awarded as attorney’s fees not excessive. In a petition seeking to condemn a right of way over defendant’s land where defendant was awarded attorney’s fees, an award of $250 for such fees held not excessive under the evidence, it appearing that such services were performed by an attorney competent to protect the interests of his client.

6. Trial, § 69 —when burden of showing number of witnesses unreasonable upon party objecting. Where objection is made to the number of witnesses called by a party in the trial, of an action, the party making the objection has the burden of showing that the number of such witnesses was unnecessary and unreasonable.

7. Trial, § 69 —when court power to limit number of witnesses. Rule laid down in Geohegan v. Union El. R. Co., 266 Ill. 482, as to the power of the court to limit the number of witnesses who may testify on a given subject, followed.

8. Appeal and error, § 1313 —when presumed court would have made order as to limitation of number of witnesses. On appeal, where it is objected that the number of witnesses called by a party at the trial was unnecessary and unreasonable, the Appellate Court will presume that if a motion had been seasonably made to limit the number of witnesses the trial court would have made a proper order on that motion.

9. Appeal and error, § 1313 —when presumed number of witnesses not unreasonable. Where on appeal it is objected that the number of witnesses who testified for a party at the trial of a cause was unnecessary and unreasonable, the Appellate Court will presumé in support of the trial court that the number of such witnesses was not unreasonable where the record does not show the subjects on which any witness testified on either side of the case.


text:
    Sarah E. Smith, Administratrix, Appellee, v. Kewanee Light & Power Company, Appellant.
    Gen. No. 5,966.
    1. Trial, § 187

      —when motion to direct verdict waived. A motion made by defendant at the close of plaintiff’s evidence in chief to direct a verdict is waived by his subsequently introducing evidence.
    2. Pleading, § 421

      —when variance waived. A motion by defendant at the close of plaintiff’s evidence in chief raising questions of variance is waived by defendant introducing evidence thereafter without further suggesting variance.
    3. Trail, § 217

      —what effect of motion to direct verdict after close of all evidence. A motion to direct a verdict made by defendant after the close of all the evidence raises the question whether there was any evidence legally tending to sustain the verdict.
    4. Trial, § 195*—when motion to direct verdict properly denied. If there is evidence introduced which fairly tends to make a case for plaintiff, defendant’s motion to direct a verdict made at the close of plaintiff’s evidence in chief is properly denied without regard to the court’s opinion as to where the preponderance of the evidence is.
    5. Trial, § 861

      —when motion to direct verdict at close of evidence proper. If there is material variance between all the proof and each count of the declaration, such variance may be presented under a motion to direct a verdict at the close of all the evidence.
    6. Pleading, § 423

      —when variance not material. A variance which consists in the simple mistake of using the word “west” instead of “east” in two counts of the declaration in stating in which direction defendant’s wires ran and which was not suggested in the trial court is not material.
    7. Pleading, § 431

      —when variance question for jury. Where there is evidence tending to sustain the charges in the declaration, the court cannot hold that there is a variance based on the evidence of one witness alone, but the question is one for the jury.
    8. Appeal and error, § 1411

      —when finding on conflicting evidence not ground for reversal. Finding of the jury on conflicting evidence will not be disturbed on appeal where there is sufficient evidence to warrant such finding.
    9. Appeal and error, § 1466

      —when ruling upon admission of testimony not ground for reversal. Evidence in an action to recover for the death of a person killed by coming in contact with electricity from defendant’s wire, examined and held that the ruling of the court upon its admission did not constitute reversible error.

      10. Appeal and error, § 1533

      —when instruction not ground for reversal. In an action to recover for the death of plaintiff’s intestate by coming in contact with an electric wire, an instruction as to the duty of plaintiff proving “her case” and referring to “the evidence bearing on the plaintiff’s case” is not objectionable for failing to tell the jury what plaintiff’s case is.
    11. Appeal and error, § 1533

      —when instruction not ground for reversal. Error in giving an instruction referring to plaintiff’s “case” is not ground for reversal where like language was contained in an instruction given at the request of defendant.
    12. Appeal and error, § 1523

      —when instruction not ground for reversal. In an action to recover for the death of plaintiff’s intestate by coming in contact with an electric wire, instructions examined and held not ground for reversal.
    13. Instructions, § 131

      —when refusal to give proper. Instructions which ignore an element of the case are properly refused.
    14. Instructions, § 151

      —when refusal to give instruction on matters already covered proper. Refusal to give instruction on questions which are sufficiently covered by other instructions is not ground for reversal.
    15. Instructions, § 18

      —when réfusal of misleading instructions proper. Refusal to give an instruction is not improper where the requested instruction is calculated to mislead the jury.
    16. Instructions, § 71

      —when refusal of instruction incorrectly stating law proper. In an action to recover for the death of plaintiff’s intestate caused by coming in contact with an electric wire, an instruction which placed upon the deceased a higher degree of care than the law imposed upon him, and ignored the duty of defendant owed to one in his position and performing his duty on the wire upon which, at the particular place, deceased had never been before, is properly refused.
    17. Instructions, § 164

      —when second reading of instruction not ground for reversal. The action of the court in having an instruction brought back to the court room at the request of plaintiff and in the presence of defendant’s counsel, and in changing a word therein and reading the instruction again to the jury, is not ground for reversal.
    Appeal from the City Court of Kewanee county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 20, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Robert C. Morse and Sturtz & Ewan, for appellant.
    Thomas J. Welch and James H. Andrews, 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 Dibell

delivered the opinion of the court.

Raymond E. Smith, a lineman for the Home Telephone Company of Kewanee, was killed by coming in contact with a high potential current of electricity from a wire of the Kewanee Light & Power Company. His administratrix brought this suit against said company to recover for the loss to the next of kin by his death. A judgment for plaintiff was reversed by us in Smith v. Kewanee Light & Power Co., 175 Ill. App. 354, to which we refer for a general statement of the facts. Upon another trial plaintiff had a verdict and judgment for $7,750, from which defendant below appeals. We refused to consider certain errors assigned because they were not duly presented by the record. Thereafter appellánt caused the record to be amended in those particulars, and we granted a rehearing that they might be considered.

The main contentions of appellant are that the preponderance of the evidence does not support the verdict and that there are material variances between the proof and each count of the declaration. At the close of appellee’s evidence in chief defendant made motions raising questions of variance, and made a motion to direct a verdict. These were denied and appellant thereupon introduced evidence. The motion made then to direct a verdict was waived by the appellant by the subsequent introduction of evidence. Reavely v. Harris, 239 Ill. 526. At the close of all the evidence appellant again moved to direct a verdict for appellant but did not state the grounds for the motion and did not raise any question of variance between the evidence and "the declaration. We are of the opinion that the questions of variance raised at the close of appellee’s case were also waived by the introduction by appellant of. further proof, for the appellee then became entitled to the benefit of all evidence thereafter introduced by appellant and by appellee in rebuttal, and after that additional proof had been introduced appellant did not again suggest a variance between the proof and the declaration. The motion to direct a verdict, made by appellant at the close of all the evidence, raised the legal question whether there was any evidence legally tending to sustain the verdict. Pate v. Gus Blair-Big Muddy Goal Co., 252 Ill. 198. If there was evidence introduced which fairly tended to make a case for appellee, then the motion to direct a verdict was properly denied, regardless of what the opinion of the court might be as to where the preponderance of the evidence was. Libby, McNeil & Libby v. Cook, 222 Ill. 206; Wilkinson v. Aetna Life Ins. Co., 240 Ill. 205; Adams v. Cleveland, C., C. & St. L. Ry. Co., 243 Ill. 191. If there were material variances between all the proof and each count of the declaration, then there would be an entire absence of proof material to sustain the verdict, and such variances could be presented under a motion to direct a verdict at the close of all the evidence, because there would be no proof fairly tending to make appellee’s case. Chicago Union Traction Co. v. Brethauer, 223 Ill. 521. We shall therefore consider the supposed variances.

The lines of the telephone company ran north and south along the east side of Tremont street across Fifth street and other streets. Certain high potential wires of appellant came from the east to a certain cross-arm on a pole of appellant on Tremont street at Fifth street, and certain high potential wires of appellant came from the south to another cross-arm on the same pole, directly beneath the one first mentioned, and each of these wires were there cut off, and each wire from the south was tied to a wire from the east on the cross-arm above it, thus forming a continuous line. Two of the four counts of the declaration charged that these high potential wires came from the south and at Fifth street turned to the west, instead of saying, as the fact was, that they turned to the east. It is claimed that this is a fatal variance. It is obvious that it was a simple mistake in using the word “west” instead of “east” in said two counts of the declaration. Our attention is not called to any place in the record where this variance was suggested in the court below, where an amendment could have been made. Appellant knew the location and direction of its own wires and was not misled. Much more serious variances were disregarded in City of Joliet v. Johnson, 71 Ill. App. 423, and 177 Ill. 178. The material thing in that respect was the charge that the telephone wire upon which deceased was at work was directly over appellant’s high potential wires on said pole at the time he was killed, and it made no difference as to appellant’s liability for his death whether it then turned east or west. This variance was not material, and it was not presented in the trial court.

To understand the other alleged variances it is necessary further to describe the situation. The telephone company had a messenger wire extending north and south on the east side of Tremont street and underneath it a cable, which cable when first put up was only temporarily attached to the messenger wire. On the morning in question deceased was traveling along said messenger wire, seated underneath that wire in a saddle, which consisted of a wide strap with a hook at each end, each fastened over the messenger wire. Deceased seated himself in this loop and pulled himself along, from the south to the north as he desired, and as he went along he permanently fastened the cable to the messenger wire behind him, by the aid of appliances which he carried. It is the claim of appellee in her declaration that at the point where this messenger wire came to the vicinity of appellant’s pole at the corner of Tremont and Fifth streets, the messenger wire was directly above these high potential wires and that the weight of deceased, about 145 pounds, and of Ms saddle and of the appliances which he carried, caused the messenger wire to sag so that when he reached this cross-arm of appellant it hecanle reasonably necessary for him to get upon said cross-arm in getting over and beyond this obstacle, and that he thereby came in contact with these high potential wires, insufficiently insulated, and was killed by the electric current thereon. When this telephone messenger wire was installed there were underneath it three high potential wires in the same situation as those now involved, but they were not the same wires and were only used to carry a high potential current in the nighttime for certain arc lights. The work of a lineman like deceased, traveling along tMs messenger wire as was frequently done, was not rendered dangerous in the daytime by the presence of those three wires underneath it, because they were used only in the nighttime. After the telephone messenger wire had been erected, appellant removed those three arc light wires and put in their place the present wires to carry a high potential current in the daytime to supply power to a certain factory. This created a dangerous condition for a lineman, if he should come in contact with said wires of appellant when worMng in the daytime. Deceased had never been along this messenger wire or over this cross-arm until this morning. These wires of appellant were in the street under a certain ordinance of the city, section 3 of which was as follows:

" The plant and appliances for furnishing such electric lights or motive power, shall be so constructed as not to constitute a nuisance or unreasonable annoyance to the inhabitants of this city; or to interfere with the free use of the public streets or alleys of this city; and the whole system and appliances or apparatus thereof shall be so constructed and be of such kind and character as to be safe as can be made by the best known method of construction, and that all poles and cross-arms shall be so set and painted as to present a neat and workmanlike appearance.”

Probably in attempted compliance with this provision, appellant had insulation on these wires. Each of the three wires from the east were wound around a glass insulator on top of a peg on the cross-arm, and the wires were then cut off, leaving the ends exposed, and the same was true of the wires from the south, tied to the cross-arm next underneath the top cross-arm, and we infer from the evidence that the connecting wires between these two arms were not insulated. It is the claim of appellee in her declaration that this insulation was'insufficient to protect a human being who came in contact with it, and that deceased, in the proper discharge of his duty, got upon one of these cross-arms in an effort to get over and beyond these high potential wires, because the sag caused by his weight on the messenger wire brought him so far down that it was necessary for him to get upon the cross-arm in order to get over. Appellant claims that the proof is that this messenger wire was entirely west of the west end of said cross-arm, so that deceased had no occasion to be upon it, and that appellant’s wires were properly and sufficiently insulated, and that deceased, for some purpose of his own, got upon the cross-arm and went down appellant’s pole to the ground, and came up again, and was upon the cross-arm for the purpose of getting back into his saddle, when he received the charge of electricity which killed him; and that his business as a lineman did not call him there; and that he was either a trespasser or a mere licensee, to whom appellant owed no duty; and that it therefore made no difference whether it had sufficient or any insulation, as it owed him no duty to protect him. The claim of appellant that deceased went down the pole and back again rests upon the evidence of one Doy that he saw deceased on the cross-arm just before he fell, which evidently was just after he had received the fatal charge of electricity. He testified in chief that some ten‘minutes before that he was looking out from a blacksmith shop some distance away and saw deceased about four feet from the ground going up this pole. He was afterwards recalled and testified that deceased was an entire stranger to him and he did not know that it was deceased whom he saw going up the pole, nor did he notice how the man was dressed whom he saw going up the pole. It is evident that it was a mere inference on his part that the man whom he saw on the pole near the ground was the man whom he afterwards saw in the act of falling from the cross-arm. We are not prepared to hold that if deceased did descend to the ground, and came back again, he was beyond the protection of this ordinance. But the jury were not required to believe that it was deceased whom Doy saw four feet above the ground. There were circumstances in evidence from which the jury might conclude that deceased was engaged in getting over the obstacle of this cross-arm and had unhooked one end of his saddle to enable him to get upon and over the cross-arm. There was a burnt place on the insulation of one of these wires indicating the probable place where deceased came in contact therewith. Because of that evidence tending to sustain the charges in the declaration, the court could not hold that there was a variance based on the evidence of Doy alone, but was required to leave that question to the jury, as was done in several instructions given at the request of appellant. There was evidence fairly tending to show that this messenger wire was directly above these high potential wires, and passed directly over this west cross-arm, and that the insulation on appellant’s wires was for protection against the weather, and was not sufficient to protect a person who, in the discharge of his duty, had occasion to be where he might come in contact with it. The evidence justified the conclusion that this insulation was only intended to protect the wires from the weather, and was not at all fitted to protect a person who might have occasion to take hold of the wire, and that it was not such insulation as the ordinance called for. Appellant' had evidence that this messenger wire was entirely west of the cross-arm, and not over it, and not above its wires, and that its insulation was sufficient. What appellant really means by its argument on this subject is that its evidence on those subjects was much more credible than that produced by appellee, and that we should decide that the great preponderance of the evidence favors appellant on these questions, and that because thereof the judgment should be reversed. We are satisfied that there is evidence fairly tending to make a case for plaintiff under at least three counts of the declaration. Two juries found the issues for appellee, and the trial judge has twice approved such a verdict, and while the evidence is conflicting we do not find its condition such as to warrant us in again disturbing that conclusion.

It is contended that the court erred in various rulings upon the admission of testimony. We have considered these questions and think those errors are not well assigned. Witnesses who had, had considerable experience in work of this kind were permitted to give their opinions on various questions, both as to the sufficiency of the insulation for the protection of human beings and as to the distance which a messenger wire like this would sag nearly half way between the telephone poles, with such a weight as was placed upon it by deceased and his appliances. We coriclude that they were, at this trial, shown to be sufficiently qualified to permit them to answer these questions. We do not hold that all the rulings on this subject were absolutely correct, but that they were sufficiently correct and that no reversible error is contained in them.

Complaint is made of instructions given at the request of appellee and of the refusal of instructions requested by appellant. Instruction No. 4 spoke of the duty of appellee to prove “her case” and of “the evidence bearing on the plaintiff’s case,” without telling the jury what the plaintiff’s case was. The same criticisms here presented were discussed in Chicago City Ry. Co. v. Nelson, 215 Ill. 436, where a like instruction was sustained. Like instructions were approved in Donley v. Dougherty, 174 Ill. 582; Taylor v. Felsing, 164 Ill. 331; Chicago Consolidated Traction Co. v. Schritter, 222 Ill. 364; Pierson v. Lyon & Healy, 243 Ill. 370; and by this court in Devine v. Ryan, 115 Ill. App. 498, and Hammond v. Woodruff & Edwards Co., 168 Ill. App. 368. Moreover, instruction No. 1, given at the request of appellant, contains a like reference to plaintiff’s case and, if there was any error in such a reference, appellant is thereby estopped to complain of it. Instruction No. 3 for plaintiff was approved in substance in Commonwealth Elec. Co. v. Rose, 214 Ill. 545. Instruction No. 7 was on the subject of the measure of damages if the- jury found for appellee.It is objected that it is not limited to the negligence charged in the declaration and that it does not confine the jury to the evidence. The instruction properly made no reference to the subject of negligence. It was applicable only in case the jury had already found for the plaintiff and had found defendant negligent. It did confine the jury to the evidence. The evidence is twice referred to in the instruction. Complaint is made of instruction No. 18 given for appellee. It is discussed at length and approved in Baltimore & O. S. W. Ry. Co. v. Then, 159 Ill. 535, and is approved in U. S. Brewing Co. v. Stoltenberg, 211 Ill. 531, and in these two cases many other cases are cited in support thereof. Defendant’s instruction No. 2 refused, ignored the question of safety, and ignored the duty imposed upon appellant by the ordinance, and ignored the change which appellant had made in the use of its high potential wires in the daytime after the telephone wires had been installed. Appellant’s refused instruction No. 5 ignored its duty under the ordinance, and did not require the best known method of construction, which the ordinance required of it. Moreover, instructions Nos. 9, 15 and 16, given at the request of appellant, fully covered the point. Appellant’s refused instructions Nos. 6, 9 and 10 were sufficiently covered by given instructions. Appellant’s refused instruction No. 7 was calculated to mislead the jury. Appellant’s refused instruction No. 8 was as to death caused by-mere accident, but everything possible by which this death could be attributed to mere accident so as to excuse appellant was covered by instructions given at appellant’s request. Appellant’s refused instruction No. 10 was covered by its' given instructions Nos. 13 and 14, and its refused instruction No. 11 was covered by its given instruction No. 13. Appellant’s refused instruction Nos. 7, 8, 10 and 11 were not in every respect correct. They placed upon deceased a higher degree of care than the law imposed upon him, and ignored the duty appellant owed to one in his position and performing his duty on the telephone wires, upon which particular wires at that particular place the deceased had never been before that day.

Appellee’s instruction No. 18, as given to the jury a few minutes before the dinner hour, contained the word “died.” It was an exact reproduction of an instruction which had been approved by the Supreme Court in U. S. Brewing Co. v. Stoltenberg, supra, except that the latter contained the word “killed” instead of the word “died.” When the jury returned to the jury room after dinner, the" court, at the request of appellee’s counsel, had the instruction brought back to the court room in the presence of appellant’s counsel, and changed the word “died” to “killed” and again read said instruction to the jury, over the objection of appellant. It is not contended that the instruction is erroneous, and we approve the court’s proceeding. Probably the amendment was not necessary, but it was a proper precaution, properly exercised, and we fail to see that appellant could be harmed by a second reading of a correct instruction. We find no reversible error in the record and the judgment is affirmed.

Affirmed.


text:
    Daniel J. Doering, Appellee, v. Peoria & Pekin Union Railway Company, Appellant.
    Gen. No. 6,033.
    1. Master and servant, § 653

      —when rule and custom, to be considered in determining the question of negligence. In an action by an employee to recover for injuries claimed to have been received through the negligence of the master, the rule and custom prevailing in the performance of the master’s business will be considered in determining whether the employee was guilty of negligence.
    2. Master and servant, § 751

      —when contributory negligence question for jury. In an action by an employee for injuries claimed to have been received through the master’s negligence, it is a question for the jury whether in view of an existing rule and custom as to the performance of the master’s business, the employee was in the exercise of due care for his own safety.
    3. Master and servant, § 465

      —when nature of servant’s employment to be considered in determining question of contributory negligence. In an action by one working as a crossing flagman at a railroad crossing against a railroad using such crossing to recover for injuries by being struck by a train operated by such railroad company at the crossing, in determining whether or not plaintiff was guilty of contributory negligence, regard must be had to the fact of his employment at the "crossing by defendant to ascertain the approach to the crossing of trains and engines and to warn persons of their approach.
    4. Master and servant, § 699

      —when evidence shows contributory negligence. In an action by the crossing flagman to recover for injuries through being struck by a train at the crossing where the evidence shows that the train was in sight for four blocks, the weather clear and the time of the accident midday, it is sufficient to show that plaintiff did not properly look in the direction from which the train was approaching.
    5. Master and servant, § 699

      —when servant guilty of contributory negligence. Where the evidence shows, in an action by a crossing flagman to recover for injuries through being struck by a train at the crossing, that at the time of the accident he was neglecting the duty which he was stationed there to perform and while thus neglecting his duty received the alleged injury, which he would not have received if he had performed his duty, the evidence is sufficient to warrant a finding of his contributory negligence.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of facts.
    Opinion filed October 20, 1915.
    Stevens, Miller & Elliott, for appellant.
    Evans & Evans, 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 Dibell

delivered the opinion of the court.

Appellee, a crossing flagman on Fulton street in the City of Peoria, was struck by the head end of a passenger car of appellant being driven upon said crossing and was seriously injured, and brought this suit to recover damages therefor, and filed a declaration of three original and two additional counts, which were sufficient to state the case which appellee sought to prove. Appellant filed the general issue and there was a jury trial, and appellee had a verdict for $4,000. A motion by appellant for a new trial was denied, judgment was entered on the verdict and the defendant below appealed. We affirmed the judgment, and we granted a rehearing to enable us to re-examine the evidence, and we have carefully examined it in the record, which is fuller than the abstract.

At the place in question four railroad tracks run northeasterly and southwesterly in the City of Peoria below a bluff and near the river. Fulton street crosses them at right angles. The track nearest the river is the Chicago-bound track of the Chicago, Eock Island & Pacific Eailway Company. The track next northwest of that is the Eock Island track for trains coming from Chicago. These are called the outbound and inbound tracks. The third track to the northwest is the main track of the Peoria & Pekin Union Eailway Company. The track nearest the bluff is the freight track of the Peoria & Pekin Union Eailway Company. On the river side of the tracks, just southwest of Fulton street, is the passenger station of the Eock Island road. About four blocks southwest is the union station which is used by the Peoria & Pekin Union Eailway Company. The latter road operated passenger trains from Fulton street to.Pekin, a number of miles away. These trains were made up at the union depot, four blocks southwest, with the engine ahead of the car or cars when making the trip to Pekin, and then were backed up to Fulton street. For the protection of the train and the public, there was upon the northeast end of the car, which was ahead as the train backed up, an air brake and an air whistle intended to be operated by the brakeman of the train, whose duty it was to stand on the advancing end of said train as it backed, and blow the whistle to warn people from coming upon the track, and to apply the air brake and stop the train whenever danger required it and when the place was reached where it was to stop. That railway had no depot at Fulton street, but on the northwest side of its main track and southwest side of Fulton street it had a platform running southwest from Fulton street twenty feet or more. The train usually consisted of one car with a ladies’ compartment in the northeast end, a baggage room in the middle, and a smoking compartment in the southwest end. A passenger train was due to leave the Eock Island station just southwest of Fulton street at one o’clock p. m., each day, and at the same time this train for Pekin was due to leave from this platform southwest of Fulton street. On Sunday, April 14, 1912, the Bock Island train left on time, and almost immediately thereafter the Pekin train, backing up, reached Fulton street. It had two cars on that day. Appellee was crossing flagman for all the tracks on Fulton street. He had no duty to stop or signal trains. His sole duty was to watch for coming trains on each track in all directions and to warn foot passengers and drivers of teams and vehicles using said street and to protect them from coming trains. He had a rest shanty southeast of all the tracks. He was on the pay roll of the Bock Island road, and was paid by that company, but appellant paid the Bock Island company one-half of his salary each month. He was, in reality the servant of both companies. So far, there is no substantial conflict in the testimony.

In many other respects the evidence is conflicting. As a single example thereof, some witnesses testified that at the time of the accident the train backed substantially all the way across Fulton street, and then pulled forward until the rear of the car was at the southwest line of Fulton street. Other witnesses testified that the car was backed to about the middle of Fulton street, and was then pulled forward. The engineer is very positive that the northeast end of the train only reached the line of Fulton street. The evidence warranted the jury in finding that the flagman was struck when he was about the middle of Fulton street, and that the train went some further than that. Appellee and some other witnesses heard no bell ringing, but at least three witnesses swore that there was an automatic bell upon the engine at the rear of this train as it was pushed northeast, and that the automatic bell was started to ringing before the train started from the union station, and did not stop until after this accident. Appellee flagged the crossing when the Bock Island train went northeast. He seems to have gone over to the northwest side of all the tracks and then started back towards his shanty and, at the time he was struck, was facing to the northeast, and perhaps standing still. He was able to tell about how far the Rock Island train had gone up the track. The proof also shows that a Rock Island train from Chicago had been due some twelve or fourteen minutes and had not arrived. It was, in fact, twenty-five minutes late, but there is nothing to show that appellee knew that fact. It is quite possible he was looking northeasterly watching for that past due train. His left hip was struck by the corner of the step on the river side of the advancing car. He was whirled around facing the car a little back of the steps, and threw his hands up against the car to avoid being thrown under it, and then fell down.

The proof by appellee and his witnesses tended to show that as that train approached and reached Fulton street there was no one on the front end of that advancing car and no one operating the air whistle or air brake, and that they were not operated. The brakeman whose duty it was to operate it had left the employ of appellant some five months before the trial, and appellant did not produce him nor show its inability to do so. The conductor testified that he stood in the door of the car, that the brakeman was at his post sounding the air whistle and ready to apply the air brake, and that he saw appellee on the crossing far enough away from the line of the approaching car so as to be in a place of safety and then turned his attention to the passengers standing in the street on the other side of the track so as to see that they did not run any risk of being hurt. Appellant drew out of the appellee on cross-examination, and without objection, that the conductor came to see him the next day after the accident, and told him that “we” (evidently meaning the conductor and brakeman) “were in the end of the car talking.” Appellee’s son testified in rebuttal, by way of impeachment of the conductor, that on the next day after the accident the conductor •called upon him at his place of business, and in answer to questions told him that at the time of the accident he, the conductor, was in the passenger car counting his tickets and change, and that he did not know where the brakeman. was. The conductor admitted that he had these interviews, but denied both of these statements. No one but the conductor testified that the brakeman was at his post of duty, as the car was pushed backward. For all that we know, the jury may have believed appellee and his son and may have disbelieved the denial of the conductor, and may have believed that on the day after the accident the conductor excused it by saying to the son that he did not know where the brakeman was at the time of the accident, as he, the conductor, was in the car counting his tickets and change; and may have believed that he excused himself to the father on the ground that both he and the brakeman were inside the coach talking. They therefore may have, believed, from this impeachment of the conductor and from the unexplained absence of the brakeman from the trial, that, in fact, the brakeman was not at his post of duty, and was not sounding the air whistle nor in readiness to apply the air brake.

It is established by evidence introduced by both sides that the rule and requirement of appellant was that the train should be stopped at the southwest side of Fulton street, but that in actual operation the trainmen did often run the car to the middle or the upper side of Fulton street, and that appellee knew this. There is nothing to show that when the car had been so run on to Fulton street it had not been protected by a brakeman with an air brake and an air whistle, as the custom required.

The question what the rule was and what the custom was at that place bears both upon the allegation that appellant was guilty of negligence in the manner in which this car was pushed across Fulton street, and also on the question whether appellant was in the exercise of. due care for his own safety. We do not doubt that the jury were warranted in finding that appellant was guilty of the negligence charged. It has been frequently recognized by the courts of this State that the rule and custom prevailing is to be considered in determining whether an employee is negligent. Pennsylvania Co. v. Stoelke, 104 Ill. 201; North Chicago St. Ry. Co. v. Irwin, 202 Ill. 345; Chicago City Ry. Co. v. Lowitz, 218 Ill. 24; Franey v. Union Stock Yard & Transit Co., 235 Ill. 522; Sturm v. Consolidated Coal Co., 248 Ill. 20, 28, 29. These cases also show that it is a question of fact for the jury whether in view of the existing rule and custom, the injured servant was in the exercise of due care for his own safety.

But in deciding whether appellee was in the exercise of due care for his own safety or was guilty of negligence which materially contributed to his injury, it is further to be considered that he was placed upon that crossing by the railroad companies as a precaution added to the statutory signals of bell and whistle and added to the air whistle and air brakes on the end of the advancing car. He owed his employers the duty to ascertain the approach to that crossing of all trains and engines, and to give timely warning and signals to stop to all foot passengers and to the drivers of all vehicles that a train or an engine was approaching. At and just before appellee was struck by the train there were persons at that street intending to become passengers on that train. Appellee testified that they were near a saloon beyond the fourth track. The conductor testified that they were on the street just beyond the third track. There were also two pedestrians coming up Fulton street from the southeast and already on the Bock Island tracks. All these people were entitled to warning from appellee that this train was approaching. Appellant was entitled to have appellee ascertain the approach of this train and give warning to the people on the street. If a traveler on the street had been hit by this car, it would have been proof of negligence by the railway company that this flagman did not see this approaching car and did not warn such traveler by the timely display of his flag and otherwise. Chicago, St. L. & P. R. Co. v. Hutchinson, 120 Ill. 587; Chicago & A. R. Co. v. Adler, 129 Ill. 335; Chicago, R. I. & P. Ry. Co. v. Clough, 134 Ill. 586; Chicago & A. R. Co. v. Blaul, 175 Ill. 183; Carlin v. Grand Trunk Ry. Co., 243 Ill. 64. This is not the case of a servant of a railway company upon and about the tracks to perform some other duty and with a right to rely upon the railway company to give all statutory and customary signals while he is performing that other duty. This was one of the servants of the railway company whose duty it was to ascertain the approach of the train and give signals therefor. He entirely failed to perform that duty. The train was in sight for four blocks. He could not fail to see it if he looked, for the weather was clear and the time was midday. Under these circumstances the fact that he did not see it proves conclusively that he did not properly look in that direction. It has been held that under such circumstances a person upon whom such a duty rested cannot recover for an injury to himself which he would not have received if he had performed his duty. Ruane v. Lake Shore & M. S. Ry. Co., 64 Ill. App. 359; Loettker v. Chicago City Ry. Co., 150 Ill. App. 69; Shea v. Chicago & O. P. El. R. Co., 183 Ill. App. 380. In Clark v. Boston & A. R. Co., 128 Mass. 1, a flagman was injured under circumstances similar to those in this case and sued his employer for damages and the trial judge directed a verdict for the defendant, and that ruling was sustained. It was there said that the plaintiff undertook to perform a duty, and neglected Ms duty, and wMle thus neglecting Ms duty he received the alleged injury; that he simply failed to see what it was his duty to see and failed to give the notice he was there to give, and that he had no cause of action. In the case at bar it is our opinion that no jury could reasonably find otherwise than that appellee was not in the exercise of due care for his own safety, but was negligent and failed to perform the duty he owed appellant, and would not have been injured if he had performed that duty, and that his negligence materially contributed to the injury for wMch this suit is brought. The judgment is therefore reversed.

Reversed with finding of facts.

Mr. Justice Niehaus took no part.

Finding of facts to be incorporated in the judgment.

We find from the evidence that appellee was not in the exercise of due care for his own safety, and failed to perform the duty he owed to appellant; that he would not have been injured if he had performed that duty; that he was negligent and that his negligence materially contributed to the injury for which this suit was brought, and that he therefore has no cause of action against appellant for said injuries.


text:
    The People of the State of Illinois, Defendant in Error, v. Michael A. Herbert, Plaintiff in Error.
    Gen. No. 6,067.
    (Not to be reported in full.)
    Error to the County Court of Boone county; the Hon. William C. DeWolf, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.

      Statement of the Case.
    Information by the People of the State of Illinois against Michael A. Herbert and William Peck, containing thirteen counts, wherein they were charged with selling intoxicating liquors in the Town of Belvidere when the same was anti-saloon territory. The defendants pleaded not guilty and were tried by a jury. During the trial the information was quashed as to the defendant Peck. Defendant Herbert was found guilty as charged in counts 1, 4 and 8 of the information. He moved for a new trial and in arrest of judgment and those motions were denied. He was fined $100 under each of said three counts and sentenced to imprisonment in the county jail for twenty days under the first count, for ten days under the fourth count, and fór ten days under the eighth count, which the judgment recites makes “a total of forty consecutive days,” and was committed to the county jail until the fine and costs were paid at the rate of $1.50 per day for each day’s work in the workhouse of the county, or until otherwise legally discharged, and it was ordered that defendant so work accordingly and that his commitment and work for nonpayment of fine and costs begin at the expiration of said forty days’ jail sentence. To reverse this judgment, defendant Herbert prosecutes this writ of error.
    There was proof that defendant Herbert had secured two Federal licenses for retailing liquor at two different places.
    Defendant contended that as the only proof of his guilt was the evidence of two detectives which was contradicted by his evidence and that of his clerk, the evidence was evenly balanced and a conviction should not stand.
    For the People there was evidence that defendant had been a saloonkeeper before the territory became dry and that thereafter he did business over the same bar and with the same appliances. While defendant claimed to be selling only soft drinks, his testimony showed that he had bought a very large quantity of beer which he kept in the basement of his place of business. He testified that beer had been prescribed for a disease from which he suffered and that he used this only at home and for himself, his wife and her sister. He also gave an estimate of the number of bottles bought and the number so used and the number left on hand at the time of his indictment, which estimate left more than 1,000 bottles unaccounted for.
    Abstract of the Decision.
    1. Criminal law, § 449

      —when question as to method of procuring jwry not preserved for review. Where the bill of exceptions fails to show how the jury were drawn or summoned or that there was any error in that respect, merely showing that one or more jurymen were called into the jury box from the bystanders, and the points in writing filed by defendant with his motion for a new trial and with his motion in arrest of judgment do not include anything on the subject, the question of the method of procuring a jury is not preserved for review.
    2. Criminal law, § 541

      —when exclusion of evidence not ground for reversal. On an information for selling liquor in anti-saloon territory possible error of the court in refusing to permit defendant to explain why he procured Federal license for retailing liquor in such territory is not ground for reversal where he was afterwards permitted to make full explanation.
    3. Intoxicating liquors, § 151

      —when verdict in prosecution for illegal sale not against weight of evidence. On an information for selling liquor in anti-saloon territory, the verdict is not against the weight of the evidence merely because the sole proof of defendant’s guilt was the evidence of two detectives which was wholly contradicted by the evidence of defendant and his clerk.

      William L. Pierce and Douglas Pattison, for plaintiff in error.
    Patrick H. O’Donnell and David B. Joslyn, for defendant in error.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

4. Intoxicating liquors, § 151 —when evidence sufficient to support finding of sale in anti-saloon territory. Evidence on an information for selling intoxicating liquors in anti-saloon territory examined and held to support a verdict of guilty.

5. Intoxicating liquors, § 158 —when instruction as to effect of issuance of Federal receipt proper. On an information for selling intoxicating liquors in anti-saloon territory, an instruction that the issuance of an internal revenue special tax stamp or receipt by the United States to any person as a retail dealer in liquors or in malt liquor at any place in anti-saloon territory is prima facie evidence of the sale of intoxicating liquor by such person at such place or at any place of business of such person within anti-saloon territory where such receipt is posted, provided a sale of liquor of any kind is proven beyond a reasonable doubt, regardless of the kind of liquor sold, is not improper for failure to require not only the issuance of such receipt but its posting at his place of business, where the instruction follows the language of the statute and defendant causes the court to give a second instruction for him to the same effect which does not require the posting of such notice.

6. Criminal law, § 558 —when error in giving or refusing instructions not ground for reversal. Even though the rulings upon the giving or refusing of instructions are subject to criticism, yet if the jury were sufficiently and fully instructed when all the instructions given are taken into consideration, such ruling is not ground for reversal.