text:
    Joseph Kenny, Appellee, v. Marquette Cement Mfg. Co., Appellant.
    Gen. No. 4,944.
    1. Master and servant—when heyseat in shaft negligence. If a shaft contain a keyseat or groove invisible in motion, known to the master and not shown to have been known to the servant and of which the servant in the exercise of ordinary care could not reasonably have been charged with knowing, an injury to such servant proximately resulting from such condition in such shaft, may be made the basis of recovery.
    2. Master and servant—when violation of rule will not preclude recovery. While it is usually negligence for an employe to violate a known rule, yet if the rule is habitually violated with the knowledge and acquiescence of the employer, or is not enforced, then the rule is treated as inoperative.
    3. Master and servant—what not assumed rish. A servant does not assume the risk arising from a condition of which he knows nothing and which he is not bound to know of by reason of the character of the duties which he is employed to perform.
    4. Evidence—effect of introducing in chief, which is strictly competent only in rebuttal. Held, that it was not error to permit the plaintiff to anticipate and to answer unfavorable evidence, which evidence it was apparent would be relied upon by the defendant.
    5. Trial—what jury not presumed to hear. A statement shown by the record to have' been made to the judge in a low tone of voice is presumed not to have been heard by the jury.
    6. Trial—right to examine talesmen with respect to acquaintance with party in interest not a party to the action. If a defendant to a personal injury suit has insurance the plaintiff has the right to question a talesman as to his acquaintance, if any, with a resident agent of the insurance company which has issued such insurance, but in conducting such an examination no reference should be made to the fact of insurance or to the insurance company.
    7. Instructions—when clerical error does not justify refusal. A mere clerical error in an instruction does not of itself require that the instruction be refused; the judge should correct the clerical error and if the instruction be otherwise correct, he should give it.
    8. Verdicts—when not excessive. Held, that a verdict for $7,500 rendered in an action for personal injuries was not excessive where it appeared that the plaintiff at the time of the trial was 27 years of age; that before the injury he was right-handed, was in good health and was earning $2.40 per day; that he has lost his right arm and was injured in the back, breast and limbs; that he is permanently incapacitated for most kinds of manual labor; that he was in a hospital for three weeks and was laid up for three months and endured pain and suffering; that during the summer of 1906 he worked for the defendant and about 2 weeks before the trial he was again employed by the defendant in its shipping department and was then paid $2 per day; that he had not the education which fitted him to enter other employment where the use of his limbs was not needed.
    Action in case for personal injuries. Appeal from the Circuit Court of La Salle county; the Hon. Edqab Eldkedge, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed June 10, 1909.
    McDougall, Chapman & Bayne, for appellant.
    H. M. Kelly and Coleman & Coleman, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Joseph Kenny was in the employ of the Marquette Cement Manufacturing Company as a laborer at its factory, which part of the witnesses place at Oglesby and others at Portland, in LaSalle county. It ground stone and manufactured cement, and had much machinery and many appliances for the purpose of conveying power to the different parts and floors of its factory. About a year before the accident here involved it moved a counter-shaft to a certain place on the third floor of the finished end, as it is called. At a certain place on this shaft power was applied to it which caused it to revolve about 130 times per minute. There were several pulleys attached to this shaft over which belts ran and conveyed power to other parts of the factory. This shaft had been formerly in use elsewhere in the factory, and then had a stationary pulley attached to its north end. When the shaft was removed to the position which it occupied when this accident happened the company had no occasion for a pulley on its north end, and the pulley was removed, or not put on at that place. There was at the north end of the shaft a deep keyseat which had been used for the purpose of attaching the pulley at the north end. That keyseat remained uncovered and unprotected at the north end, though not needed for any purpose. About eighteen inches from the north end a pulley was attached immovably to the shaft, and a belt ran thereon to communicate power to some lower part of the building. Further south' on the shaft was a pulley so attached to the shaft that by the use of a certain clutch it could be made to cease revolving though the shaft still remained in motion. There were apparently other pulleys on said shaft still further south attached by like clutches. Near the north end of the shaft and slightly east thereof was a skeleton partition or framework consisting of uprights and cross pieces nailed in place, so stationed that one could stand upon one of the cross pieces, hold on to the wood work with his left hand, reach around the end of the shaft and put the belt on the first pulley. On November 27, 1905, Kenny was directed by the foreman to go on the third floor, throw the belt off from the north pulley, thus stopping the machinery below which ran by the power conveyed through that belt, and then descend to the lower floor and do certain work. Kenny testified that it was also a part of the order that when that work was completed he should return to the third floor and put the belt back upon the north pulley. The foreman denied that that was included in the order. Kenny went to the third floor, threw off the belt, went below and did the work assigned, and then returned to the third floor and tried to put the belt on the pulley while standing underneath it upon the floor. The shaft was above his head, and the belt was greasy, and he found himself unable from that position to put it upon the pulley, which was in motion with the revolving shaft. He then stepped upon the frame work mentioned upon a cross piece about three feet above the floor, held on to an upright with one hand and reached around to the west side of the shaft with the other hand and put the belt upon the pulley. As he did this work his breast was, as he supposed, about six inches from the end of the shaft. Just as he got the belt upon the pulley he was in some way caught upon the shaft and was rapidly revolved around it, his right hand was caught under the belt and severed from his arm, and he was dropped upon the floor, stripped of all his clothing except his shoes and stockings. His right arm received such injuries that it had to be amputated above the elbow. He was much bruised and injured otherwise. He brought this suit to recover damages for the injuries so caused him, and upon a jury trial had a verdict and a judgment for $7500, from which defendant below appeals.

The declaration contained nine counts. The court directed a verdict for defendant as to the fourth, fifth, seventh and ninth counts. The verdict and the judgment rests upon the first, second, third, sixth and eighth counts. These counts charge, with a fullness of detail unnecessary to be here stated, the operation of the factory by appellant and appellee’s employment there, and that appellee was exercising due care, and that he was injured. The first count charged that appellant negligently maintained and used a certain counter-shaft which was broken and uneven, in the end of which was a keyseat or groove or open space in which the clothes of the employes working about the factory were liable to catch and become fastened while the shaft was in motion, and thereby injury be caused to such employes, and that, while appellee was placing a belt on a pulley in obedience to orders from appellant, his clothes came in contact with the counter-shaft and became fastened in the keyseat or groove, and thereby appellee was twisted and thrown and injured in the manner described. The second count contained a similar charge. The third count charged that appellant had installed a counter-shaft with an uneven and rough surface, and it contained similar allegations to those in the prior counts, with the additional charge that appellee did not know of the rough and uneven condition of said counter-shaft. The sixth count charged that appellant negligently permitted the end of the counter-shaft to be used while it was uneven and rough, and while it extended out beyond the pulley and was without any guard or apparatus to prevent the clothing of employes from becoming fastened in said rough and uneven end of the counter-shaft, and that while appellee was carrying out the instructions of his foreman in endeavoring to throw a belt on the pulley his clothing became hooked and fastened in the rough and uneven end of the counter-shaft so exposed without guard or protection and thereby he was twisted and turned and injured as already stated. The eighth count charged that appellant installed and used a counter-shaft with the end unguarded and uneven and rough, and in such a condition as tó catch and hold fast the clothing of any employe moving close to the end of said shaft, and that the defendant negligently directed appellee to throw the belt on the pulley close to the uneven and rough end of the shaft while the shaft was in motion, without advising appellee of the rough and uneven end of the shaft and of the danger attendant upon throwing said belt on said pulley close to the end of said shaft with said rough and uneven end while it was in motion, and that while appellee was obeying said order his clothes became caught and fastened in said rough and uneven end, and he was thereby injured as stated.

The existence of this deep keyseat in the end of the shaft was proved, and also that it had been hammered or pounded so that it was battered; and there was evidence to show- that one part of the keyseat had become so bent as to form a hook upon which clothing could easily catch if brought in contact with it. Some of the witnesses testified that they had not noticed or did not see this hook or bent condition. In all other respects this evidence was undisputed. The jury could hardly fail to find that this condition was dangerous to employes who had occasion to work around the north end of the shaft when it was revolving rapidly.

The counts of the declaration which remained in the case charged that appellee’s clothing was caught in this keyseat or groove. Appellant contends that there is no evidence to sustain that charge; but on the contrary that appellee’s hand was caught under the belt, and that he was thereby drawn upon the shaft and his clothing wrapped around it, and that that is not the case stated in the counts remaining in the declaration, and also was a risk which he assumed in undertaking to put on the belt while the pulley and shaft were in motion, and that therefore the recovery cannot be sustained. The position which appellee occupied, as already stated, while doing this work was a circumstance to be considered by the jury in determining whether his clothing was caught in the keyseat. He testified that as he was attempting to step down from throwing the belt on, the shaft which extended out from the pulley caught his blouse and wrapped him around the shaft and threw his arm into the pulley, and that this caused his clothing to come off and wrap on the shaft and pulled his arm off. Further on, he testified that the shaft took hold of his left breast, wrapped his clothing up tight and threw him around the shaft two or three times, and then his arm caught, and with the tearing off of his arm his clothes also were torn, and then he was let down on the floor with all his clothes torn off. On cross-examination he testified that the accident did not happen to him while he was putting on the belt, but that it was as he was attempting to get down that he was caught; that his clothes were caught on his left breast; that he knew what was going on but could not realize how it happened. James Phillips, who was on duty as engineer, was standing in sight and saw that just as appellee threw the belt he got caught and went around the shaft somehow, and he went and stopped the engine, which was necessary in order to stop the shaft. Frank Wertz, one of appellee’s associates as repairman, saw appellee immediately after he was injured, and testified that appellee was just getting up off the floor when the witness came in sight, and that appellee had nothing on hut his shoes and stockings, and that his clothes were wrapped on the end of the shaft; that he, the witness, started to remove the clothes from the shaft, and did so until he got to the hand, and then quit. He was asked what he found the condition of the shaft, especially the end of it, or place where the keyseat was, immediately after the injury, and he answered: “I found a lot of—after the clothes was all taken off— shreds of cloth on that shaft that was not taken off. I guess they didn’t pick them all off—on the shaft there after the clothes was taken off around those nicks and round in the keyway. Of course not right down in the keyway, I didn’t look that close. There was lots of threads wrapped around in there, threads of cloth.” On cross examination, it developed that Wertz, when he saw that appellee was hurt, first ran down stairs to shut off the machinery and found it shut off, and then came back, and that when he came back the clothes were all along the shaft there in from the end, but most of them were up against the pulley. Michael Olszewski testified that he saw appellee about five minutes after he was injured, he should judge; that he was then standing on the floor and had nothing on but his shoes and stockings; that his clothing and his hand were on the shaft, and he took off the clothes and the hand, and that after taking the clothes off he did not observe anything caught in the end of the shafting; that the keyseat was clear and most of the clothes were within a few inches of the pulley, and wrapped around the shaft, and that before he came there some one else had been working ahead of him and had taken off the clothing up to the hand and had cleared a part of the shaft; that it looked to him a.s if some body had been trying to take off the clothing before he came; bnt that he had not seen anyone working there, bnt the belt had been cut off. Mike Cisack, appellant’s millwright, testified that he arrived at the scene of the accident about a minute after appellee was injured, and found appellee sitting on the floor, and that he believed that a part of his clothes were wound up in the belt on the shafting close to the pulley ; that no part of his clothing was on the north end of the shaft, and that the north end of the shaft was bare for probably ten inches. On cross examination, he testified that he would not swear that Wertz and Olszewski had not been there and taken clothing off from the shaft before he got there, and that they might have done so when he was away from there. It will therefore be seen that it was a disputed question of fact whether appellee’s clothing was or was not caught in the keyseat, and that there was an abundance of evidence to sustain the verdict of the jury, which must have been based upon a finding that it was so caught.

The existence of this keyseat was known to appellant’s foreman when the shaft was placed in its position about a year before this accident, and it was also known to the millwright. It was therefore known to appellant. The shaft was placed in that position by direction of the superintendent, and he and the foreman in charge were responsible for taking off the pulley which had been previously upon the end of that shaft, and for leaving the keyseat unguarded. If it was dangerous to employes having occasion to work about the end of that shaft while in motion to have such a key-seat, appellant was charged with notice of that danger. The proof was that the keyseat was invisible when the shaft was in motion.

Appellee had no part in the placing of this shaft in that position or in removing the pulley from the end. He testified that he had never seen that keyseat and did not know of its existence. He was required to "be in that room every morning, hut it was for the purpose of inspecting certain clutches and certain elevator heads, and this was done while the shaft was in motion. That examination involved nothing in connection with this shaft except that he threw the clutch which stopped those pulleys which were not immovable upon the shaft and examined that apparatus to see that it was in proper condition. Evidence introduced by appellant tended to show that appellee had assisted in the mending of certain belts in that room during that year when the shaft was not in motion, but no one testified that he had even been in a position where he could see the north end of this shaft. The proof was that there was always much dust in this room, and that even when the shaft was not in motion the keyseat was not visible to any one unless he stood near the shaft or directly north of it and looked towards the end, and it was not shown that appellee had ever been in a position where he could see this keyseat when the shaft was not in motion. No one testified that his attention had ever been called to it or that anything had ever been said about it by any one in his hearing. The jury therefore were warranted in finding that he did not know of the existence of this keyseat with its nicks and battered condition.

There were posted about this building, and had been for a long time, notices which, among other things, forbade employes putting on a belt while the machinery was in motion. Appellee and another witness testified that on one occasion the foreman ordered appellee to put on a belt while the shaft was in motion; that appellee pointed to the notice, and asked the foreman what about that, and that the foreman said, “To hell with that; throw on the belt;” and that he obeyed these instructions. The foreman denied this incident. It was, however, proved by several witnesses that the foreman had frequently ordered belts put on while the shaft was in motion, and that that was the usual and customary way in which that work was conducted, to the knowledge of the foreman and- with his approval; and the foreman himself admitted that that was the usual and customary way in which the work was done. While it is usually negligence for an employe to violate a known rule, yet if the rule is habitually violated with the knowledge and acquiescence of the employer, or is not enforced, then the rule is treated as inoperative. C. & W. I. R. R. Co. v. Flynn, 154 Ill. 448; St. L. National Stock Yards v. Godfrey, 198 Ill. 288; Hampton v. C. & A. R. R. Co., 236 Ill. 249. This proof was introduced by appellee in chief. Appellant contends that it was error to admit it in chief for appellee. It may well be that it would have been entirely proper for appellee to wait until appellant introduced evidence upon that subject, but it could hardly fail that before the trial was through it would appear that there were such notices posted which appellee had violated in putting on this belt without causing the machinery to be stopped. The existence of these notices was a part of the res gestae, and we are of opinion that plaintiff had a right to anticipate the unfavorable impression which proof of the existence of these notices might make upon the jury, and to show that they were not binding because they were habitually disregarded, not only with the knowledge but also under the express commands of the foreman. Besides, appellant’s counsel cross-examined at great length upon this subject, and made statements to the court which showed that appellant intended to rely upon these notices as a defense.

It is argued by appellant that appellee was an inspector of machinery; that if there was a defect in the north end of this shaft it was his duty to ascertain and report that fact; that he was the person, or one of the persons, through whom that information would or should reach appellant, and that on that account he cannot recover; and also that he must be presumed to have had knowledge of the defect and to have assumed the risk. While he was called an inspector by some of appellant’s witnesses, yet that is too strong a statement of his duties. He was one of the repair gang under the charge of Coleman, the foreman. Most of his duties were not upon the third floor at all, but at other parts of the factory. It was his duty to go to the third floor in the morning while the machinery was in motion and to inspect the elevator heads and grill clutches. But those parts of the machinery were not near the north end of this shaft, and they did not call him to that part of the third floor where this keyseat would be visible if the shaft was not turning, and this examination was made while the shaft was turning and when the keyseat was invisible if he had stood before it. Once each day the entire machinery was stopped for about ten minutes, while an inspection was made by Coleman and his men. Appellee’s duty of inspection then was on another floor. If he got through with that work before the machinery started again, it was then his duty to go and help some one. else. That duty might call him to the third floor. At such times, however, his duty was only to go to such places as he was sent to by the foreman and make such further inspection as the foreman directed. There is no proof that he was ever directed to inspect this shaft, or that any general or special duty was ever laid upon him which required him to examine or be at the north end of this shaft, or to see it when not in motion. Under all these circumstances (and the proof upon this subject is very full), we aré unable to see how it can be said that he neglected any duty in failing to see this keyseat in the north end of this shaft on the third floor, or how he assumed the risk of accidents with that keyseat and assumed the risk of its battered condition and of the hook therein, when he knew nothing of the existence of these conditions and had no duty which required him to know of these conditions.

During the impanelment of the jury appellee was permitted to ask various jurymen “Are you acquainted with any of the officers or agents of the Aetna Liability Insurance Company?” It is argued that this was error. When objection was made to the first of these questions, appellee’s attorney made a statement to the judge which contained an intimation that there was some other party besides, appellee and appellant who might have an interest in this proceeding, and that such party had an agent at LaSalle, and that appellee’s counsel desired to ascertain whether the jurors were interested in any way with any of these parties. To this statement in the presence of the jury objection was made and sustained. The abstract, however, fails to show, what the record discloses, that this was said in a low tone of voice by appellee’s counsel. With that statement in the record, we have a right to assume that the remark was not heard by the jury, and therefore there was no prejudicial error in it. If it was a fact that appellant had insurance against such injuries to its employes, then the insurance company-might very likely be an interested party to the proceeding, and if it had an agent in the county who very likely had placed this insurance, it would seem as if appellee would have a right to ask whether the jurors knew any of these parties, for the purpose of a peremptory challenge, if he saw fit. O’Hare v. C., M. & N. R. R. Co., 139 Ill. 151, 156; Iroquois Furnace Co. v. McCrea, 191 Ill. 340. We do not approve of the question. The attorney could have asked the juror whether he knew a certain person, naming to him the man whom he assumed was in fact an agent of this insurance 'company, and could have ascertained in that way whether he lmew that person, and could thus have determined whether to exercise a peremptory challenge because of the relations of the juror with that person, without disclosing that the party named was an agent for an insurance company. When, however, the remark which was made in a low tone of voice is left out of consideration, we do not think the putting of the question was reversible error. We think it did not contain the suggestion that appellant was insured, which was condemned in Eldorado Coal Co. v. Swan, 227 Ill. 586, and in McCarthy v. Spring Valley Coal Co., 232 Ill. 473.

It is argued that the damages awarded are excessive. At the time of the trial in 1907, appellee was twenty-seven years of age. Before the injury he was right-handed, was in good health and was earning $2.40 per day. He has lost his right arm, and was injured in the back, breast and limbs. He is permanently incapacitated for most kinds of manual labor. He was in a hospital three weeks, and was laid up for three months, and endured the pain and suffering usual in such injuries. During the summer of 1906 he worked some for appellant, and about two weeks before the trial he was again employed by appellant in its shipping department, and was then paid two dollars per day. He has not the education which fits him to enter upon employment where the use of his limbs is not needed. The amount of the damages to be awarded in such cases lies very much in the sound discretion of the jury. We do not feel warranted in saying that it ought to be reduced in this case.

It is argued that the court erred in various rulings upon the admission of testimony. We have examined these and do not find any reversible error in them.

Complaint is made of the refusal of the 40th instruction. It said that certain evidence would not of itself “permit the jury to recover.” That was a clerical error for “permit the plaintiff to recover.” If this had been the only defect in the instruction, we think the court should not have refused it for that obvious mistake, but should have corrected it; but we regard the instruction as erroneous in other respects. Moreover the jury were very fully instructed in behalf of appellant. We find no reversible error‘in the record, and the judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    William Fraser et al., Appellants, v. Grace Fraser, Appellee.
    Gen. No. 5,056.
    1. Executors and administrators—when charge of fraud not sustained. A charge of fraud against executors is not sustained by showing that the executors had represented that a “decree is now in full force and effect and no appeal has heen taken therefrom,” when in fact previous to the making of such representation a writ of error had been sued out to review such decree, such writ of error not having been made a supersedeas.
    2. Executors and administrators—effect of order of discharge. An order of discharge made by the -Probate Court is a discharge only so far as the particular matters appearing upon the face of the account are concerned and the formal - discharge on a final accounting operates only as to the accounts of the parties up to that period; other assets may be realized and new liabilities incurred, involving a continuance of duty and responsibility.
    3. Executors and administrators—effect of order of discharge upon pending writ of error. An order of discharge entered by the Probate Court does not preclude parties in interest from gaining the fruits of a successful prosecution of a writ of error pending at the time of the entry of such order of discharge, such writ of error having for its object the gaining for the estate, through a reversal of the decree reviewed, of other and additional assets than those credited to the estate by the executors.
    4. Administration of estates—section 114 of act construed. The imposition of interest upon executors at ten per cent pursuant to section 114 of chapter 3 Revised Statutes was intended as a penalty and only five per cent should be charged as against assets which in good faith had been unsuccessfully contended were not the property of the estate and were therefore not subject to distribution.
    5. Injunctions—who cannot attack as void, A party who has obtained an injunction will not be heard to say that the same was void and should have been disobeyed.
    6. Decrees—effect of failure to review. A decree not reviewed is binding and conclusive upon the parties thereto with respect to the subject-matter thereof.
    7. Interest—upon legacies. Held, in this case, that the allowance of interest to legatees was proper.
    8. Judicial sales—when not set aside. One who has bought land at a judicial sale and paid for it and obtained a deed, cannot, after a lapse of years, be relieved from such purchase upon the sole ground that when he knowingly and intentionally bid twice its value in order to cut off the rights of third parties, he had been incorrectly advised as to the law by his own attorney.
    Petition to vacate approval of executor’s report. Appeal from . the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded with directions.
    Opinion filed June 10, 1909.
    Statement by the Court. At the commencement of the legal proceedings concerning the estate of William Fraser, deceased, involved in this suit, jurisdiction of the estate was in the County Court of Kane county, and afterwards a probate court was organized in said county, to whose jurisdiction said estate was transferred. Said courts will be herein referred to as the Probate Court. On October 13, 1903, the Probate Court approved a final report theretofore filed by the executors in the estate of William Fraser, deceased, and declared said estate closed. The present proceeding arises from a petition filed in the Probate Court on August 21, 1906, asking the court to vacate the approval of said report and the closing of said estate, and to charge the executors with a large additional sum of money, and to cause the same to be distributed. This petition was filed by legatees under the will of the deceased, who had received but a small portion of their respective legacies when the estate was declared closed. A second amended petition was filed and answered, and upon a hearing in the Probate Court, an order was entered setting aside the previous settlement of the estate; charging the executors with a large additional sum as received by them, and charging them with the penalty of ten per cent per annum from a certain date, and allowing the legatees interest at five per cent per annum from the same date. Grace Fraser who was then the only resident executor, appealed from that order to the Circuit Court, where, upon a hearing, the petition of the legatees was dismissed. They prosecuted this appeal to this court. The matters here involved have been before this court in. Fraser v. Fraser, 110 Ill. App. 619, and Fraser v. Fraser, 128 Ill. App. 73; and many of the facts are there stated, and we refer to those opinions for any details not fully set forth herein.
    William Fraser died September 8, 1895, leaving no descendants, but leaving surviving him Grace Fraser, his widow. He left a will and a codicil thereto, each of which was duly admitted to probate, wherein he made provision for his wife and also gave numerous legacies to collateral relations, and appointed Grace Fraser and George McDonald executors of the will. His personal estate consisted chiefly of four promissory notes, executed by Fred W. Sadler, three for the principal sum of $6,666.66 each and one for the principal sum of $5,800, upon which there was much past due arid unpaid interest, so that the aggregate due thereon when the executors filed their inventory, was over $31,000. These notes were secured by mortgages resting upon lands near the city of Elgin. After the mortgages were given, Sadler subdivided the land into lots, and had sold many lots and had given deeds therefor. The executors filed bills to foreclose these mortgages, and had decrees for foreclosure, and the premises were sold at master’s sales, and Grace Fraser, the widow, and one of the executors bid at said sales sums aggregating $25,986 and became the purchaser of the premises at that price. On August 30, 1898, the executors filed a report in the Probate Court, wherein they charged themselves with $25,986 as received from the mortgaged property upon the foreclosures, and credited themselves with the expenses of said foreclosures. Said report was approved on August 30, 1898. On April 7, 1902, nothing having been done towards the distribution of said estate or the payment of said legacies, Grace Fraser, in her own right filed a bill in equity -in the Circuit Court, setting up the proceedings above mentioned, and stating that the value of the premises at the time of said purchases by her at said foreclosure sales did not exceed $12,000; that she was advised by her attorney that as her husband had left no descendants, if she renounced the provisions of the will in her favor she would be entitled to all the personal estate of the deceased, after payment of his debts, and that, relying on that advice, she did renounce the provisions of the will; that she was advised by her attorney that she ought to bid so high at said foreclosure sale as to prevent the premises from being redeemed, and that upon becoming the owner she could vacate the plat, and that it would make no difference to her how much she bid, because she would receive all the personal property as against the legatees under the will; that, relying on that advice she bid double what the property was worth; that she had recently learned that, under the law, after she had renounced the provisions of her husband’s will in her behalf she would be entitled to only one-half of the personal estate; that no part of the purchase price was actually paid by her to the master, except an amount sufficient to pay the costs and expenses, and no part of the purchase price was actually paid to the executors as such, though they receipted to the master in chancery therefor; that if she was obliged to account for said purchase price, she would not only receive no benefit from her husbands’ estate as his widow, but she would have to take her own estate to pay the legatees; that she desired to have the premises resold, and the proceeds paid to the executors in place of the proceeds of said original foreclosure sales; and that the legatees were threatening to take steps to make her account for the proceeds of the foreclosure sales. The bill prayed that the premise's be resold and the proceeds paid to the executors in lieu of the proceeds of the foreclosure sales; that the complainant, as purchaser and as executor, be relieved from having to account for the proceeds of the foreclosure sales; and that the legatees and beneficlaries under the will he restrained from attempting to make the complainant, as purchaser, or the executors, account for the proceeds of such foreclosure sales. The legatees were non-residents, and were served in the manner provided for serving non-residents; and were defaulted. The executors entered their appearance as defendants. On June 30, 1902, the complainant had a decree pursuant to the prayer of the bill, directing the re-sale of the premises, the payment of the expenses out of the proceeds, and the payment of the remainder to the executors, and that they should receive such sum instead of the proceeds of the foreclosure sales, and should dispose of the proceeds as executors in the administration of the estate of William Fraser, instead of the proceeds of the foreclosure sales; that the complainant, as purchaser and as executor, be relieved from having to account for the proceeds of the foreclosure sales in any manner, except as provided in said decree; and that the legatees be each restrained from attempting to make complaint, as purchaser or as executor, or McDonald as executor, account for the proceeds of such foreclosure .sales, except as provided in that decree. There was a sale of the premises under said decree, on August 11, 1902, and Mrs. Fraser purchased the premises at said sale for $10,600. The sale was confirmed, and Grace Fraser, as one of the executors, receipted to the master for $8,955.30 as the net proceeds of the sale, after deducting the court costs and expenses of the sale, and after also deducting $1400 paid by the master to Grace Fraser, namely $800 for repairs and improvements made by her, $200 for taxes pRid by her and $400 for expenses of the foreclosure paid by her.
    On November 20, 1902, certain legatees sued out a writ of error from this court to review said decree. On November 28, 1902, eight days after said writ of error was sued out the executors filed their final report in the Probate Court, in which they set out the fact that in their former report of August 30, 1898, they had charged themselves with $25,986 as received from the foreclosure sales, and set out the decree of the Circuit Court in the chancery proceeding begun by Mrs Fraser, whereby they were relieved from accounting for the proceeds of said foreclosure sales, and in lieu thereof were to account only for the proceeds of said second sale, at which the premises were sold for $10,600 and the net proceeds of which receipted for by the executors amounted to $8,955.30 with which amount they, by said report, charged themselves. Concerning said decree, they stated in said report, “Which decree is now in full force and effect, and no appeal has been taken therefrom.” That report was approved on that date, and a distribution ordered on that basis. On October 8, 1903, this court rendered the decision reported in 110 Ill. App. 619 dismissing the writ of error for want of necessary parties. Two or three days later, on October 12 or 13, 1903, the Probate Court approved a final report of distribution. Thereafter certain legatees obtained leave to withdraw from this court the former record, and sued out another writ of error, and on October 27, 1903, obtained a severance of plaintiffs in error, and leave to assign errors separately upon the record, and obtained a scire facias for Grace Fraser and for their co-plaintiffs in error, and afterwards brought all parties in interest before the court, in the manner provided by law. In that cause, on July 7, 1906, we filed the opinion reported in 128 Ill. App. 73, wherein we reversed the decree in equity relieving Mrs. Fraser from her bid at the foreclosure sales, and remanded the cause to the court below, with directions to vacate the orders approving the master’s sale and distribution under said decree, and to dismiss the bill for want of equity. The grounds of that decision were that the mistake she set up was one of law, and not of fact; that she was not led into the error by any fraud, undue influence, or any action or representation of any party in interest, and that equity would not relieve her against the mistake of law; and also that she had not offered to pnt the parties in statu quo, and had not made parties to her bill the various owners of lots in Sadler’s subdivision of said real estate, who were parties defendant in the foreclosure suits, and also for other reasons stated in that opinion. Thereafter on August 21, 1906, the present proceeding was begun in the Probate Court to charge the executors with the amount received by them from the foreclosures, which, as already stated, resulted in an order in the Probate Court sustaining the main contentions of the legatees, and in an appeal therefrom by Mrs. Fraser to the Circuit Court, where her contentions were sustained, and the petition was dismissed, which latter order is now before this court for review.
    Simmons, Mitchell & Irving, for appellants.
    Fisher & Mann and John Murphy, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellants contend that the executors, in the final report of November 28, 1902, committed a fraud upon the court when they therein stated, as to said decree of June 30, 1902, in the chancery suit to relieve the executors from accounting for the proceeds of the foreclosure sales, “which decree is now in full force and effect, and no appeal has been taken therefrom”, when in fact certain legatees had, eight days before, sued out a writ of error from this court to review said decree. While it may well be that perfect candor would have been better observed by the executors if they had also stated that a writ of error had just been sued out to review said decree in equity, yet we are of opinion that the charges of fraud in that respect are not sustained. It was strictly and literally true that the decree was in full force and effect, and that no appeal had been taken therefrom. The legatees who sued out that first writ of error did not cause the same to he made a supersedeas, and it therefore did not interfere with the force and validity of the decree at that time. Moreover if the executors had undertaken to state everything concerning that writ of error, they must also have stated that the proper persons had not been made parties to that proceeding in error, and that the writ of error would be dismissed. Moreover, the Probate Court having before it in that report the date of the decree in equity, could not fail to know as a matter of law, that a writ of error could be sued out to reverse said decree within five years after the rendition of the decree. There was nothing in the final report to indicate that such a writ of error would not be prosecuted. The fact that the distribution of the estate under that final report, and the order approving that distribution and closing the estate, was not made, until three days after that writ of error was dismissed, tends to show that either the executors or the Probate Court, or both, had in view the pendency of that writ of error, and did not intend that the estate should be finally closed until the writ of error was disposed of. None of the other elements of fraud authorizing the setting aside of an order closing an estate are shown, and we are of opinion that the petition could not be maintained on the ground of fraud.

But there is also set forth in the second amended petition such a statement of all the facts as to raise the question whether, when that decree had afterwards been reversed under a subsequent writ of error, and it had been therein adjudged, in a proceeding binding upon all the parties that the executors were chargeable with the proceeds of the first sale, the prior approval of the final report of November 28, 1902, would operate as a bar to the distribution of that portion of the proceeds of the foreclosure sale which had not been distributed. When, in 1902, the Probate Court was applied to to settle this estate on the basis of said decree in equity, the legatees could not then have interposed a successful defense in the Probate Court. It would not have been a defense that they had a right to prosecute a writ of error within five years. The Probate Court would not have been justified in refusing to act on the report for five years. Moreover, by the decree then still in full force, the legatees were enjoined from attempting to make Mrs. Fraser or the executors account for the amount of the foreclosure sales, and Mrs. Fraser cannot now be heard to say that the injunction she so obtained was void, and that the legatees should have violated it, and should be barred now because they obeyed it. While they could have prevented this action of the Probate Court by appealing from the decree entered against them upon non-resident service, or by suing out a sufficient writ of error and obtaining a supersedeas, yet the law did not require them to do either, but they were given by law the right to sue out a writ of error within five years, without seeking a supersedeas. The attorney for some of the appellants, and who now appears to be attorney for all of them, visited the county seat, arid saw that report before it was approved, but he did not then have a defense to interpose, and his clients were enjoined from interposing the only defense of which they could otherwise have availed themselves. But afterwards, upon a second writ of error, it was determined that Mrs. Fraser was not entitled to be relieved from her bids at the foreclosure sales. The parties defeated upon that second writ of error did not cause our judgment to be reviewed by the Supreme Court, and till they do so it stands as a final adjudication, binding upon all the parties to this proceeding. It therefore results that upon the rendition of our decision, on July 17, 1906, upon the second writ of error, the executors then became liable for the difference between the net results of the foreclosure sales and the net results of the second sale, distributed under the report of November 28, 1902. In other words, a sum. exceeding ten thousand dollars had become the property of the estate, after the report of November 28, 1902, was approved, and after the sum therein named was distributed, and the estate declared closed.

It is claimed by appellees that the order approving the final report of November 28, 1902, and the order of October 13, 1903, approving the distribution thereunder, and closing the estate, were final, and are a bar to this proceeding. We are of opinion that they were final as to the sums then distributed, but we feel required, by Diversey v. Johnson, 93 Ill. 547, and Starr v. Willoughby, 218 Ill. 485, and other cases there cited, to hold that as to that portion of the estate which became available by virtue of the decision of this court in 1906, the order closing the estate in 1903 was not final, but was void. It was held, in the case last cited, that an order of the County Court discharging an administrator or executor on a final accounting, when in fact the estate is not fully settled, is void as to the unsettled part of the estate. The quotations there made from Woerner’s American Law of Administration seem to us pertinent to the matter now in hand. It is there said that an order of discharge made by the Probate Court is a discharge only so far as the particular matters appearing upon the face of the account are concerned, and that the formal discharge on a final accounting operates only as to the accounts of the parties up to that period; that other assets may be realized, and new liabilities incurred, involving a continuance of duty and responsibility. It is argued here that inasmuch as the report of November 28, 1902, stated all the facts then existing concerning the result of the foreclosure sales and the release therefrom by the decree of the court of equity, therefore the order closing the estate and discharging the executors was final as to all such matters. Conceding that to be partially true, it was not in the power of the Probate Court to cut off the right of the legatees to a writ of error in the chancery proceeding, nor to deprive the legatees of any of the results of any reversal of that decree which they might thereafter obtain on a writ of error within the time fixed by law. The effect of reversing the decree of June 30, 1902, was to abrogate that decree, and restore the parties to the litigation to their original rights. A party to a suit cannot acquire any rights based on an erroneous decree that will not be abrogated by a subsequent reversal thereof. If he has received benefits from the erroneous decree, he must, after its reversal, make" restitution. Ure v. Ure, 223 Ill. 454. The reversal of that decree and the judgment that Mrs. Fraser was not entitled to be relieved from her bids at the foreclosure sales, and that the executors were not entitled to be relieved from the report of 1898, wherein they charged themselves with the results of those sales, was a new fact, occurring long after the estate was declared closed, and which, standing as it now does as a final adjudication between the parties, determined, long after the approval of that final report of 1902 and the distribution thereunder that there was still over ten thousand dollars of assets belonging to this estate. To hold that those orders approving the report of November 30, 1902, and approving the distribution thereunder and closing the estate, are a bar to the present proceedings, would be to hold that the Probate Court by proceeding at that time, had power to. deprive the legatees of their statutory right to a writ of error in the chancery cause within five years. We are of opinion that the Probate Court was required, under the second amended petition, to re-assume jurisdiction of the estate, and to distribute this additional sum.

We are of opinion that the circumstances of this case do not warrant the imposition of interest at ten per cent per annum upon the executors under section 114 of chapter 3 of the revised statutes relating to the administration of estates. That was intended as a penalty, and to make it unprofitable for executors and administrators to hold the funds of an estate in their hands, and to use them in their own business for their own benefit instead of distributing such funds to those entitled thereto. Here these executors did not have any funds in their own possession. Mrs. Fraser bought the land at the foreclosure sales, and the executors charged themselves with the price at which she bought as if they had received the money, but they had in fact received no money, and she only had the land. She bid for this land more than double what it was. worth. The legatees and heirs get the benefit of this double bid, and she loses correspondingly, and practically sacrifices her half of the estate for their benefit by reason of that bid. Since she discovered the mistake of her legal advisers she has been earnestly contending for relief against that mistake. As she is to be charged for one half of a large sum which she never actually received either in money or value of property, it does not seem equitable that she should also be charged with interest at ten per cent thereon. Courts of probate act upon equitable principles in the settlement of estates. We regard interest at five per cent per annum as a proper charge against her. The estate should be settled on the basis of the report of August 30, 1898, so far as that can be done consistently with treating the report of November 28, 1902, and the approval of the report of final distribution on October 13, 1903, as final so far as it distributed the estate. The decree of June 30, 1902, had found that Mrs. Fraser had laid out in improvements and repairs on said real estate $800 and paid out in taxes thereon $200 in excess of the amount she had received as rent for said premises, and had directed the master, out of the proceeds of that second sale to pay to her said sums of $800 and $200, and also to pay her the sum of $400 which the decree found she had paid out as expenses in the original foreclosure proceedings; and the master did pay her those sums, and she accounted as executrix in her second report of November 28, 1902, only for the net sum received by her from the master under said sale, to-wit: the sum of $8,955.30. When that decree was reversed the allowance therein to Mrs. Fraser of $800 and $200 and $400, in all $1,400, was also reversed. As she is required by this decision to keep the land under the purchase in 1898, she is not entitled to any allowance from the estate for improvements or repairs or taxes which she afterwards paid thereon. We think the court must have power in this proceeding to cause the allowance to her of $800 and $200 in the chancery decree to be eliminated. The expenses of foreclosure had already been charged in the report of August 30, 1898, and should be allowed as of that date. We conclude, however, that the allowance to the executors of attorneys’ fees and commissions in the report of November 28, 1902, must be considered as final, after the approval of that report and the approval of the subsequent distribution thereunder. In that report of final distribution, approved October 13, 1903, Mrs. Fraser, as executrix, had credit not only for paying to herself the balance due on her widow’s award and the amount of a certain other claim which had been allowed her against the estate, but also for interest thereon from the date of said respective allowances to December, 1902. We are of opinion that the court has power in this proceeding to expunge the allowance of that interest, and that it is equitable to do so. No money was paid to her on those allowances. It was a mere matter of book-keeping. We are of opinion that the widow’s award and the claim should be treated as paid to Mrs. Fraser in the manner set forth in her report of August 30, 1898, wherein she credited herself with both of said matters as paid in full at amounts named in that report. Mrs. Fraser should be allowed no other or further commission or attorney’s fees except such sum as may be reasonably necessary to prepare and procure the approval of a final report in accordance with this opinion, and to distribute to the legatees the sums still payable to them. After deducting these allowances the remainder of the estate should be divided into two parts as of August 30, 1898, and Mrs. Fraser should be credited with one-half thereof as paid to her at that time as her inherited share of the real estate and personal estate, she having renounced the will. The balance should be treated as payable to the legatees. She should be charged with interest at five per cent per annum upon the one-half not inherited by her to the time she made distribution, which seems to have been in the first part of 1903. From the sums then due the legatees should be deducted the sums paid to the legatees and approved on October 13, 1903. Interest should then be charged against the executrix upon the balance of the unpaid principal of the fund at five per cent per annum to the date of the filing of the final report pursuant to the directions of this opinion. The legatees may be allowed interest upon their legacies at five per cent per annum from November 30, 1898 (see authorities cited in article entitled “Do Legacies Bear Interest in Illinois”, in 2 Illinois Law Review 440), but the legatees can be paid no interest except out of that one-half of the estate which does not belong to the widow.

It is argued that it will work a hardship upon Mrs. Fraser to be compelled to make good the price at which she purchased this property at the foreclosure sales. The appeal to our sympathies is mainly based upon statements as to her financial condition, made by her attorneys outside the record. We recognize that it is a hardship, and we have in this opinion provided for giving her everything to which we think she can reasonably be entitled. We are as much bound as she is by our decision in 128 Ill. App. 73. If that decision is unsound, she should cause it to be reviewed by the Supreme Court. We must treat it, as it now stands, as a final adjudication upon the subjects covered thereby. We consider that the legatees have a right to demand that we enforce that decision. In considering the hardship to Mrs. Fraser it is to be remembered that her bill in equity shows that when she bought the property at the foreclosure sales, she well knew that she was bidding more than double its value, and that she made that excessive bid in order to deter each owner of one or more lots in Sadler’s subdivision of the land from seeking to redeem from the sale of his lot or lots. Her high bid may have worked a great hardship to other lot owners. When she filed her bill to be relieved from her purchases, she did not make these lot owners parties, so that upon the re-sale, their rights of redemption might be restored to them. If she or her legal advisers had not devised this scheme to cut out the owners of small interests by bidding more than double the true value of the property, she would not be in the unfortunate position she now occupies. It should also be noted that the foreclosure sale was in April, 1897, and that Mrs. Fraser’s bill to be relieved therefrom was filed in April, 1902, and that she delayed five years before seeking relief, during all which time, however, she failed to distribute the proceeds of the sales, and to close the estate. She alleges in her bill that it was not till about six months before she filed it that she learned that she was entitled to but one-half of the personal estate left by her husband. If so, it is singular that for four and one-half years after the foreclosure sales and before she discovered what the law was, she did not cause the estate to be closed. It would establish a very dangerous precedent, to permit one who has bought land at a judicial sale, and paid for it and obtained a deed, to file a bill five years later, and be relieved from the purchase on the sole ground that when he, knowingly and intentionally, paid more than twice its value in order to cut off the rights of other parties, he had been incorrectly advised as to the law by his own attorney.

The order of the Circuit Court is reversed, and the cause is remanded to that court with directions to enter an order in conformity with this opinion.

Reversed and remanded with directions.

Me. Justice Willis took no part in the consideration of this case.


author: Mr. Justice Willis

text:
    Arnold Mitchell, Appellee, v. Libby, McNeill & Libby, Appellant.
    Gen. No. 5,044.
    1. Instruction's—must be predicated upon the evidence. Instructions are improper which are not predicated upon any evidence in the cause.
    2. Instructions—when upon exercise of ordinary care not erroneous. The expressions, “due care,” “ordinary care” and “reasonable care” are convertible terms, and it is not error to define the standard of care required of the plaintiff suing for personal injuries, to be “due or reasonable care.”
    3. Instructions—must not be argumentative. Instructions should be refused which are argumentative in form.
    4. Verdicts—when not excessive. Held, that a verdict, reduced by remittitur from $1,000 to $985, rendered in an action on the case for personal injuries, was not excessive where it appeared that the injury, among other things, consisted of a compound fracture of both bones of the leg which after seven months still continued to pain the plaintiff.
    Action in case for personal injuries. Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed October 14, 1908.
    Rehearing denied April 21, 1909.
    W. M. Yeatman and Blodgett & Riordan, for appellant.
    C. C. McMahon and McCalmont & Ramsay, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellant, Libby, McNeill & Libby, a corporation, operated a milk condensing factory at Morrison, Illinois. On the first floor was a large room with an elevator in the northeast corner. East of this was a cooling room, the door to it being about twelve feet south of the elevator. The milk was condensed, barreled, and then placed in the cooling room. One end of a skid with a saw horse underneath the center was placed on the elevator, and the other end of the skid on a table standing lengthwise with its east end inside the door of the cooler room. The skid was made of two four by fours about twelve feet long, slanted at the ends. There were three cleats on the under side, one about two feet from each end, and a third in the middle. The table was six or eight feet long, three and a half or four feet wide, and three feet high, having four legs of four by four inch material. Boards two by six inches were nailed under the top on the outside of the legs with about six twenty penny spikes in each leg. The top of the table was of planks about two inches thick, and ten or twelve inches wide spiked to the two by six strip and also to the legs. The barrels weighing six hundred pounds were placed on the elevator, which was then raised, and the barrels were rolled by two men across the skid to the table, then turned and rolled into the cooling room. On July 6, 1907, appellee, Arnold Mitchell, with another employe of appellant, was rolling a barrel of milk from the elevator to the cooling room. When the barrel was near the table the two north legs bent under, the skid slipped off the table, the men and the barrel fell, and appellee sustained a fracture of both bones of his left leg below the knee. On December 26, 1907, appellee, by Bartley Mitchell, his next friend, brought suit in the Circuit Court of Whiteside county against appellant to recover damages for the injuries resulting from the accident. The declaration contained three counts. The first count averred that appellant negligently kept a stand or table not of sufficient strength to support the weight to which it was subjected. The second count was like the first, with the added averment that the stand or table was not braced and was not of sufficient width to support the weight to which it was subjected. The third count averred the appellant negligently kept a stand or table and skid that were not of sufficient strength to support the weight placed upon them. Each count averred that while appellee was, in the exercise of due care, assisting under the order and direction of appellant’s vice-principal in rolling a barrel of milk over such skid, the table gave way, and the barrel fell upon appellee and fractured one of his legs, and otherwise injured him. The plea of not guilty was interposed. There was a trial and a verdict for appellee for $1,000. A motion for a new trial was made. Appellee remitted $15 from the verdict. The motion for a new trial was denied. Judgment was entered on the verdict for $985, and Libby, McNeill & Libby appealed.

It appears from the evidence that appellee was about fifteen years of age and had been employed by appellant since July 1, 1907, at different work about the place. On the morning.he was injured, he and Knox, another employe of appellant, were at work on the lawn, and to get out of the rain came into the building, and Perrine, appellant’s foreman, set Knox at painting, and appellee at placing barrels on the elevator. When appellee and other employes had placed a number of barrels on the elevator, Perrine raised it and appellee and McKee, an employe of appellant’s, rolled one barrel to the cooling room, when Perrine ordered appellee to assist Bowie, or Bough, another employe, in rolling up another barrel. Appellee, on the east side of the skid, and Bough on the west, rolled the barrel nearly to the table, when the two north legs of the table bent under to the south, the table slanted to the north, the skid slipped off, and the men and the barrel fell. Appellee’s evidence tended to show that the legs of the table were not braced, and appellant’s that there were two by six inch strips across the ends from four to six inches from the floor. There was testimony from employes of appellant that two weeks before the accident the table was unsteady and swayed from side to side when similar barrels were rolled over it, and some testimony to the effect that it swayed from side to side when in use on July 1st. Bough testified that after the accident the table leaned to the north, and the bottom of the legs leaned to the south four or five inches. Four other witnesses testified to the same effect, one saying in addition that the upper part of the leg pulled out a little, and another that the nails were pulled out. Appellant relied principally upon the defense that the table had been inspected shortly before the accident. The superintendent testified that he made a general inspection of it on the morning of July 8, within fifteen or twenty feet of it, and also a less minute inspection on the morning previous, and that he had it tested before it was used for putting milk into the cooler; and that after the accident the table was in good condition. The foreman testified that after the accident the legs were not out of plumb so you could notice it. A clear preponderance of the proof is to the effect that the legs bent under it from four to six inches and that the nails were more or less drawn. The evidence supported the averments of the declaration that the table was not properly braced, and was not of sufficient strength to support the weight placed upon it, and the jury properly found the issue of facts in favor of appellee.

Appellant complains that in the instructions to the jury the court excluded from their consideration the defenses of the negligence of a fellow servant and assumed risk. A careful inspection of the record discloses no evidence that Bough or any fellow servant of appellee was negligent in anything connected with the accident. It does disclose however that appellee was young, lacking in experience, and had never done work of this kind, and that he had been at the place where he was injured but once before, when he assisted in moving the table. There is nothing to show that his attention was drawn to its condition at that time or that he had any reason to expect that he would ever work upon it, and it cannot reasonably be found from the evidence that he knew or should have known that the table was not of sufficient strength to support the weight to which it was subjected, or that he had adequate opportunity to inspect it. He had a right to assume that appellant had furnished reasonably safe appliances for him to work with. Moreover he was using the appliances under the direct order and in the presence of appellant’s vice principal. We are of the opinion that the court committed no error in giving for appellee such instructions, which omitted the defenses of the negligence of a fellow servant and the assumption of the risk, and in refusing appellant’s instructions which include such defenses.

The declaration averred that appellee expended divers sums of money in endeavoring to be cured, and appellant complains that the court erred in refusing its instructions that appellee could not recover for nurse hire and surgical’ or medical and other expenses incurred in his treatment. No evidence was introduced by appellee relative to the expense of his treatment for the injuries, and we are of the opinion that it was not error to refuse such instructions, especially as the court gave the jury an instruction that told them they could allow appellee no damages for loss of service or earning capacity during his minority, nor for expenses nor services rendered in caring for him.

The court gave to the jury an instruction which defined the standard of care required on the part of appellant as “due or reasonable care.” Appellant contends that this was an erroneous statement of the law, in that it required a higher degree of care than “reasonable” or “ordinary care”. The expressions “due care”, “ordinary care”, and “reasonable care” are convertible terms, and no error was committed in the matter of the instructions in this respect. C., B. & Q. R. R. Co. v. Yorty, 158 Ill. 321; B. & O. S. W. By. Co. v. Faith, 175 111. 58.

Appellant offered a number of other instructions that were refused. These we have carefully examined, but will not discuss them in detail. We deem it sufficient to say that some are erroneous, some are argumentative, and others are included in the instructions that were given. We are of the opinion that the jury were fully' and fairly instructed as to the law applicable to the facts, and that the court committed no harmful error in the admission of evidence or in defining the law.

Appellant argues that the damages are excessive. It is not disputed that there was a compound fracture of both bones of the leg. Appellee testified seven months after the accident that the leg still pained him. An examination at the time of the trial showed that the ankle was enlarged and stiff, that the circulation was impaired, that the injured leg and foot were smaller than the other, and that there was such a deformity that appellee walked with his foot on that side turned inward. There was no evidence of any maltreatment or neglect of the injury, and under this state of the proof we do not consider the damages excessive.

No reversible error appearing in the record, the judgment of the court below is affirmed.

Affirmed.


author: Me. Justice Willis

text:
    S. Strauss, Appellee, v. A. E. Samuel, Appellant.
    Gen. No. 5,130.
    1. Assumpsit—when lies. Assumpsit lies to recover under a contract of service which provides for a specified salary and one-fourth of the profits of the business of the employer.
    2. Pleading—aider hy verdict. Where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been fatal objection upon demurrer, yet, if the issue found be such as necessarily required, on the trial, proof of the fact so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission, is cured by the verdict.
    Assumpsit. Appeal from the County Court of Will county; the Hon. Geobge J. Cowing, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 24, 1909.
    John J. Mahoney, for appellant.
    J. W. D’Arcy, for appellee.
   Me. Justice Willis

delivered the opinion of the court.

A. E. Samuel, appellant, conducted retail clothing stores in Joliet and South Chicago, Illinois. On June 4, 1906, he entered into a written contract with appellee by which appellee was to manage the Joliet store and receive a weekly salary of $25 and one-fourth the net profits of the business. • The contract expired June 3, 1907, hut was extended one year from June 4, 1907. On December 26,1907, appellant discharged appellee. On December 30, 1907, appellee brought this suit in assumpsit against appellant in the County Court of said county to recover one week’s salary and one-fourth the profits of the business from June 4, 1907, to December 26, 1907. The declaration in a single count set out the terms of the contract, and alleged appellee’s faithful performance thereof, until wrongfully discharged; his willingness to carry out the contract, and appellant’s refusal to pay the salary due him and to settle. Appellant interposed a plea of the general issue. There was a trial and a verdict for appellee for $975. A motion for a new trial was denied. Judgment was entered on the verdict and this appeal was taken by Samuel.

It is contended by appellant that there could be no recovery in this case in an action of assumpsit, because of the averment in the declaration that the defendant refused to settle accounts with the plaintiff, but that the action was one of accounting. The averment was not as stated by appellant but was, “and the plaintiff avers that the defendant failed to pay plaintiff the salary due him and the defendant refuses to settle accounts with the plaintiff and pay to the plaintiff one-fourth of the profits of said business amounting to, to wit, nine hundred and seventy-five dollars.” Appellant argues that from this averment, “no common-law judge and jury could ever arrive at the truth” in this matter, because there can be no recovery for mere speculative, conjectural or possible profits. In this we cannot agree with appellant, since the profits arising from the transactions under this contract can be accurately ascertained. Moreover, the issues submitted on the contract between the parties, if defective, were cured by the verdict; the rule being, that, “Where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been fatal objection upon demurrer; yet, if the issue found be such as necessarily required, on the trial, proof of the fact so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or thé jury would have given, the verdict, such defect, imperfection or omission, is cured by the verdict. ” 1 Chitty’s Pl. 672; Keegan v. Kinnare, 123 Ill. 280; Chicago and Eastern Illinois Railroad Co. v. Hines, 132 Ill. 161; Chicago and Alton Railroad Co. v. Claussen, 173 id. 100; City of Chicago v. Lonergan, 196 id. 518.

Appellant’s main contention is that the evidence does not support the verdict. Appellee testified to $3,900 profits. One fourth of that sum is $975 and $25 added for unpaid salary makes $1,000. If the evidence actually showed $3,900 profit, then the verdict is $25 less than appellee was entitled to recover. On cross-examination appellee was asked to state the details and his itemized figures conclusively show that the judgment is excessive. From his evidence it appears that goods to the amount of $8,443.31 were purchased the first year, and to the amount of $3,031.74 the second year, making a total of $11,475.05; that the expenses were about $8,000, and that there were bad accounts to the amount of $2,250, making a total of $21,725 debits. He also testified that the sales amounted to $18,479.72 and that the goods on hand amounted to $4,500, making a total of $22,979.72 credits. The profits amounted to $1,254.67 less $25, appellee’s last week’s salary which had not been paid and was not included in the expense account of $8,000. Deducting the $25 the net profits were $1;229.67. Under the terms of the contract, appellee was entitled to one-fourth thereof, or $307.42,' to which should be added a week’s salary of $25 making the amount due him according to his own evidence, $332.42. It is thus apparent that the judgment is grossly excessive.

In view of the fact that another trial may follow, attention is called to the second instruction given for appellee, which might be understood as stating that the jury were the judges of what questions of fact were presented by the pleadings. This, of course, was not intended.

For the error apparent in the amount of the judgment the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Fred A. Leslie, Appellee, v. Joliet Bridge & Iron Company, Appellant.
    Gen. No. 5,075.
    1. Evidence—when general objection does not avail. A general objection to evidence relative to expenses in searching for employment does not avail to raise on review the question of the failure to specify items.
    2. Variance—when not fatal. A slight variance is not fatal to a verdict apparently just.
    3. Instructions—when may assume facts. An instruction may properly assume the existence of facts which are undisputed.
    4. Instructions—when upon quantum of evidence properly refused. An instruction which requires that the jury must be “satisfied” is properly refused in that it requires too great a quantum of proof.
    5. Assumpsit—when recovery may be had under common counts. Recovery may be had under the common counts if nothing remains to be done but the payment of money.
    Assumpsit. Appeal from the County Court of Will county; the Hon. George J. Cowing, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    C. W. Brown, for appellant.
    J. W. Downey, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Fred A. Leslie, appellee, brought this suit in assumpsit in the County Court of Will county against the Joliet Bridge and Iron Company, appellant, to recover upon a verbal contract for services rendered as a draftsman. The declaration contained a special and the common counts. The special count alleged that on March 2, 1907, appellant entered into a contract with appellee, by which appellee agreed to work as a draftsman for appellant from that date to March 1, 1908, for the sum of $125 per month, payable bi-monthly on the 5th and 20th of each month, and $15 per month to be paid on March 1, 1908, with six per cent interest thereon, in the event appellee did not quit appellant’s service during the term of said contract; and that appellee commenced work thereunder on March 2, 1907, and continued to work until December 14, 1907, when he was discharged without cause and prevented from carrying out such contract; and further alleged his willingness to perform the terms of such contract, but that he was prevented from so doing by the wrongful act of appellant in discharging him; that he demanded the amount due and appellant refused to pay the same. To the declaration was attached an affidavit, stating that there was due, on the contract, $503.30. Appellant filed a plea of non-assumpsit, and a special plea alleging that the agreement was not in writing, and that it was not to be performed within one year from the time it was made. To this plea was attached an affidavit made by appellant’s president that appellant had a good defense to said suit upon the merits to all of appellee’s demand except $142.50. Appellee joined issue on the plea of non-assumpsit; and, to the special plea, replied that each and every one of said several promises was an agreement which was to be performed within the space of one year from the time of the making thereof; and concluded with a tender of an issue to the country. Issues were joined and a trial had, resulting in a verdict for appellee for $492.50, which is the amount of wages at the specified rate from the date of the discharge to March 1, 1908, and of the bonus for the entire year, without interest. A motion for a new trial was denied. Judgment was entered on the verdict, and the company appealed.

Appellee’s proof was to the effect that the oral contract set out in the special count was made March 2,1907, and that it was to end March 1, 1908. If that testimony was true, the contract was to be performed within a year. Appellant’s proof tended to show that the contract was made on February 23, 1907, and was to take effect March 1, 1907. If this was true, then it was not all to he performed within a year, and appellant’s special plea stated a defense as to the unexecuted part of the contract. This presented a question of fact upon which the proof was conflicting, and the burden was upon appellant. There are circumstances in evidence tending to support appellee’s theory, and other circumstances tending to support appellant’s. Much depended upon the veracity of the witnesses. They were seen and heard by the jury and trial judge. The jury credited appellee’s witnesses and the trial judge approved their verdict. From our examination of the entire evidence, we do not find that appellant had a preponderance in its favor. Therefore, we do not feel at liberty to disturb the conclusions of the jury bearing the approbation of the trial judge.

Appellee in support of his testimony that the contract was made March 2, 1907, and was to end March 1, 1908, offered in evidence a letter, dated February 25, 1907, from the Decatur Bridge Works, a corporation seeking his services, and testified that, in negotiating the contract, he showed this letter to appellant’s president and that the latter read and commented upon it. If this is true, and the letter was dated February 25, 1907, that fact is contradictory of appellant’s theory that the contract was negotiated on February 23, 1907. Appellant’s president denied seeing or reading the letter. Whether or not he saw the letter and talked about its contents, was a question of fact for the jury. Appellant urges that the court erred in admitting the letter in evidence over its objection. The record discloses that the court held that only its date was competent, and that was all that was read to the jury. In this, in our opinion there was no error.

Appellee testified that after he was discharged, he went to several places searching for work in his line of employment; that he applied to several structural iron firms in Chicago, hut was unable to get employment; did a few small jobs, worked two nights at Rockdale for the Joliet Steel Construction Company, did a little work for Purdy & Henderson, did work for one Heiser; but did not earn over $50; and that his expenses searching for work amounted to more than that sum. Appellant made only a general objection to the' evidence relative to appellee’s expenses in searching for other employment, but now urges that he should have shown the items so that their necessity and reasonableness could be determined. Had the objection been thus specific, doubtless the items would have been furnished. As it was general, appellant has no just cause of complaint.

It is urged that the second and fifth instructions given for appellee were erroneous. The second was upon the contract as set out in the special count and testified to by appellee. The special count averred, and the instruction treated, the $125 as payable bimonthly, on the 5th and 20th of each month, while appellee and his witness, appellant’s chief draftsman, who hired him, did not state that the salary was payable bi-monthly. It, however, appears that appellee had then been in the employ of appellant for four years, and that it was appellant’s custom to pay the men bi-monthly, on the 5th and 20th of each month. In view of this we think the jury, in the absence of proof to the contrary, were warranted in finding that the $125 per month was to be paid in the manner in which appellant was accustomed to pay its employes, and a verdict otherwise just should not be disturbed on a variance so slight and immaterial.

The fifth instruction told the jury that it was appellee’s duty after being discharged, to make a reasonable effort to obtain other employment during the unexpired portion of the term of the contract, and if he did not obtain other remunerative employment, the amount expended, if any, in obtaining such employment should be deducted from the amount received by him, and the balance, if any, credited to appellant. If there had been any controversy as to whether or not the money so expended was necessarily and properly expended in searching for snch employment, the instruction should have been qualified in that particular. But as there was no question of that kind raised by the evidence, no harm was done by the absence of such qualification of the instruction.

Appellant contends that the court erred in refusing its fourteenth and fifteenth instructions. The fourteenth was to the effect that there could be no recovery under the common counts. The proof shows that there was due appellee $15 per month as a bonus, from March 1,1907, to the day of his discharge. That portion of the contract was executed and that sum certainly could be recovered under the common counts. Moreover, the affidavit of appellant, filed with its pleas, conceded an indebtedness of $142.50. From the affidavit filed with the declaration and the affidavit of merits filed with the pleas, admitting $142.50 due, appellee could, had he seen fit, have taken judgment for that amount at any time, and there is no doubt that the sum so conceded to be due could have been recovered under the common counts.

The fifteenth instruction was erroneous, first, because it said that the jury must be “satisfied” before they could find for the plaintiff, which is stating too strongly the quantity of proof the plaintiff must produce to warrant a recovery, and, second, it required the plaintiff to establish the special count of the declaration in order to recover, whereas a part of this demand could be recovered under the common counts.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.


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    The People of the State of Illinois, Appellee, v. Paul Rudorf, Appellant.
    Gen. No. 5,097.
    1. Appeals and errors—when appeal does not lie. An appeal does not lie in a criminal case.
    2. Appeals and errors—effect of failure to move to dismiss. By failing to move to dismiss an appeal perfected in a criminal case, by joining in error and by arguing the merits, the irregularity in the method of review undertaken is waived and the Appellate Court will consider the cause on the merits.
    3. Amendments and jeofails—when granting leave to file amended till of particulars in criminal case not error. If an amended bill of particulars has been filed before the trial by leave of court, no assignment of error can be successfully predicated thereon if no surprise was claimed and no continuance or postponement asked.
    4. Trials—effect of absence of judge. The proper method is to suspend a trial if the judge is temporarily absent. If, however, his absence is with the consent of the defendant’s counsel and no prejudice appears to have resulted, a new trial will not be granted because of such absence.
    5. Trials—when remarles of judge will not reverse. Seld, that the remarks of the presiding judge as follows: “It seems to me that he is somewhat hostile” and “It is a leading question. The witness doesn’t seem to be very friendly and I will let it stand,” were not prejudicially erroneous.
    6. Dram-shops—what evidence competent in prosecution for selling liquor without license. In such a case the time of the commission of the offense is not of the essence and need not be precisely laid; it is sufficient if it be laid at any time before the finding of the indictment or the filing of an information within the limitation, and proof of sales made at any time within the period of limitation is competent even though the indictment alleges only sales made within three months prior to such indictment.
    7. Evidence—what competent upon question of good faith. Where the good faith of a party is involved he may testify directly thereto.
    Prosecution for unlawful sale of liquor. Appeal from the County Court of Du Page county'; the Hon. Mazzini Slusser, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    Lawrence P. Conover, for appellant.

      Charles W. Hadley, for appellee; S. J. Rathje, of counsel.
   Mr. Justice Willis

delivered the opinion of the Court.

Paul Eudorf, appellant, was indicted by the grand jury of Du Page county for selling liquor without a license. The indictment contained eighteen counts. On a trial, in the County Court of said county, a jury found him guilty on the first and second counts. He was sentenced to pay a fine of $40 on each count, and the costs of suit. This is an appeal from that judgment.

An appeal does not lie in a criminal case. Ferrias v. People, 71 Ill. App. 559. A writ of error is the only mode provided by law by which the judgment of the trial court in a criminal case can be reviewed. French v. People, 77 Ill. 531. Therefore if a motion to dismiss this appeal had been interposed, it would have been granted. But counsel for appellee has filed briefs arguing the case upon the merits. Where an appellee or defendant in error argues upon their merits the errors assigned upon the record, it is equivalent to a formal joinder in error. Dinet v. People, 73 Ill. 183; De Beukelaer v. The People, 25 Ill. App. 460; Ferrias v. People, supra. Where there has been a formal joinder in error or an equivalent thereof, the Appellate Court may disregard the irregular attempt to bring a case up by appeal and may treat it as pending upon a writ of error. Bonner v. The People, 40 Ill. App. 628. The case will therefore be considered as pending here on a writ of error.

On the day of the trial, the state’s attorney obtained leave over appellant’s objection, to, and did file an amended bill of particulars containing the names of additional witnesses, to whom, it was claimed, sales of liquor had been made. The bill of exceptions shows that this was done before the trial was entered upon. Appellant did not claim to be surprised or taken unawares thereby, and did not ask for a continuance or postponement of the trial, and therefore has no cause for complaint on that account.

During the examination of the jurors, after four had been accepted, and while counsel for appellant was examining one of the second four, the judge announced that he had a case to attend to in another part of the same building, and asked counsel if they could get along without him for a few minutes. Counsel for both sides replied that they could. Whereupon the judge said, “If you want me, call me”, and left the room. Appellant’s counsel proceeded with the examination of the jurors, during which the state’s attorney interposed objections to certain questions, one of which was not answered by a juror. It is contended that the absence of the judge was serious error. If the presiding judge finds it necessary to absent himself from the court when a trial is in progress, he should suspend all judicial proceedings until he has returned; and if objection to his absence is reasonably made and properly presented, it should be regarded a fatal error, except when, in a civil case or misdemeanor, it shall plainly appear to the reviewing court that the cause of the complaining party was not prejudiced by what occurred in the court during the absence of the judge. Wells v. O’Hare, 209 Ill. 627. The record discloses that appellant’s counsel expressly consented to the absence of the judge. He was not compelled to go on with the examination of the jurors in the judge’s absence, but could have waited until he returned had he seen fit. The judge did return before counsel had completed the examination of the four jurors whom he was examining when the judge left but he did not thereafter repeat the unanswered question to the juror, nor did he make any objection, nor take any exception, to the act of the judge in retiring, and did not exhaust all his peremptory challenges.' There is nothing to indicate that appellant’s rights were in any way prejudiced by what occurred in the court during the absence of the judge, and this being hut a misdemeanor, we are of the opinion that the absence of the judge does not amount to reversible error.

The dates upon which the liquor was alleged to have been sold, were all laid within about three months previous to the finding of the indictment. The state’s attorney, over appellant’s objections, was permitted to interrogate the witnesses as to sales made within eighteen months preceding the finding of the indictment. When the time of the commission of an offense is not of the essence, it need not be precisely laid, and it is sufficient if it be laid any time before the finding of the indictment or the filing of an information and within the' limitation. Kettles v. People, 221 Ill. 221. Proof that the offenses charged were committed on any day or days within the period of eighteen months before the indictment was found, was sufficient, and convictions thereon could be pleaded in bar of any other information or indictment for the same offenses alleged to have been committed on any day within that time. Koop v. People, 47 Ill. 327.

Appellant complains of remarks of the judge in reference to certain witnesses while being examined in chief by the state’s attorney. Appellant’s attorney objected to a question asked by the state’s attorney on the ground that it was leading and immaterial. The court answered that it was leading, but he thought the state’s attorney entitled to ask leading questions of the witness and added, “It seems to me that he is somewhat hostile.” Of another witness, in ruling on an objection the court said, “It is a leading question. The witness doesn’t seem to be very friendly and I will let it stand.” An examination of the testimony of these two witnesses shows that they were endeavoring to screen appellant and were decidedly unwilling to testify to facts which would lead to his conviction.

In two instances the court sustained an objection to a question put by. appellant to a witness as to whether he ordered the whiskey in good faith, and it is claimed that the court refused to permit appellant’s clerk to testify that a sale by him was made in good faith. The court said these were questions for the jury. It is no doubt true that where the good faith of the party is involved, he may testify directly thereto. Wohlford v. The People, 148 Ill. 296. The record clearly discloses that later, each of the witnesses was permitted to state that the sale was made in good faith. Each stated that the liquor was purchased for medicinal uses. And after the court sustained an objection to a statement by appellant’s clerk that a certain sale was made in good faith, such clerk was asked this question, “Did you sell it to him in good faith under the belief that it was to be used for medicinal purposes?” And he answered “Tes, sir,” and the court permitted the answer to stand. We are clearly of the opinion that the error in not permitting the witnesses to testify that they acted in good faith, was cured by the action of the court in subsequently permitting such witnesses to testify that they did act in good faith.

It is argued that the evidence was not sufficient to sustain the conviction. The evidence shows that appellant was a druggist operating a store in Hinsdale, Du Page county, a village of about 3,000 inhabitants. He had a right to sell intoxicating liquors under a permit from the village for medicinal, sacramental, mechanical and chemical purposes only. The evidence shows that sales were made to fifteen different parties. One witness testified that he had purchased liquor at appellant’s store as often as once a week during the eighteen months prior to the filing of the indictment ; another twice a month during that period; and two, once a month each; another, eight or ten times; two, six times each; another, four or five times; two, three times each; another, two or three times; and others, while admitting the purchases, were indefinite as to the number of times liquor was purchased by them. The liquor sold by appellant was kept by bim in sealed bottles ready to be delivered when called for. It appears from the evidence that he kept in stock at least five different brands. The people that came in would not always designate the brand they desired, but some of the witnesses usually asked for a particular brand. It does not appear that in a single instance, a physician’s prescription was presented, though in some instances, some of the witnesses signed a book. The witnesses when asked what they wanted the liquor for, replied that they were sick, had colds, colic, cramps, nervousness, and some of them, that they needed a supply for future emergency, in case of accident, and one that there was too much iron in the drinking water of Hinsdale. Thereupon, appellant or his clerk would sell the applicant a bottle of whiskey which he carried away and drank at his home or place of business, and, in one instance, in a barber shop. It is clear to us, from careful consideration of all the evidence, that the intoxicating liquor sold, as proven by appellee, was intended for a beverage and not for medicinal purposes. It appears clear that the excuse offered by appellant, based on the evidence of the witnesses, that they purchased it for medicinal purposes, was a mere shift or device offered by appellant to evade the law forbidding the sale of intoxicating liquor without a license. Appellant’s violation of the law was flagrant, his punishment not unreasonable, and he has no ground to complain.

There being no reversible error in the record, the judgment of the lower court is affirmed.

Affirmed.