author: Mr. Presiding Justice Holdom

text:
    John A. Hinsey et al. v. Supreme Lodge Knights of Pythias.
    Gen. No. 13,136.
    1. Tbusts—remedy upon abuse of, by individual investment. A trust officer who assumes interests in conflict with the interests of his principal may he required to surrender ail such interests and to account for all loss resulting to his principal by virtue of his illegal conduct.

      2. Trusts—scope of doctrine of impressive. The doctrine of impressive trusts is sufficiently broad in its scope to permit the following of money, wrongfully appropriated by one standing in a fiduciary relation to another, into whatever property it may have been invested.
    3. Trusts—alternative relief appropriate upon abuse of, by individual investments. Where a trustee has employed trust funds in individual investments, the cestui que trust may either follow the funds into the corpus of the investment or recover the money misappropriated and have the property purchased with that money subjected to the payment of the amount due.
    4. Ratification—when amendment of bill of complaint does not affect. An amendment does not affect a ratification where the theory of the original action has not been departed from and where the amendments at most only inject into the cause a new method to be adopted in obtaining the ultimate relief sought by the original bill.
    5. Ratification—what not subject to. Transactions in themselves illegal are not subject to ratification.
    6. Redemption—when order of sale without right of, appropriate. A sale of real estate ordered to satisfy a money decree is properly awarded without according to the defendants any right of redemption where such defendants were wrongdoers and had no title in such real estate, either legal or equitable.
    Bill for accounting, etc. Error to the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1906.
    Affirmed.
    Opinion filed January 13, 1908.
    By an order of severance duly entered of - record, plaintiffs in error, John A. Hinsey, Erastus Sipperly, Charlotte Sipperly and Arrolyn M. Brooks, were allowed to prosecute this writ of error alone, the remaining plaintiffs in error being by that order barred, pursuant to statute, from hereafter attacking the verities of the decree of the Circuit Court, with the exception of Elmer L. Parker, whose appeal from the Circuit Court decree is now pending in this court.
    Statement by the Court. The parties will be here designated as in the court below, complainant and defendants.
    The complainant is a corporation in virtue of a charter granted to it by the Federal Congress June 29, 1894, as a fraternal and benevolent association. Its charter forbade its engaging in any business for gain. It was granted power to make a constitution and amend the same at its pleasure, and in pursuance of its charter, about April, 1895, it established and, to the time of filing the bill herein, maintained an insurance department for insuring the lives of such of its members as desired to be insured. This department was known as the “Endowment Rank,” governed by a constitution and by-laws adopted by the supreme lodge of complainant. The government of such Endowment Rank was vested in a Board of Control, composed of the Supreme Chancellor and the Endowment Commissioner of complainant, each ex officio, and three members of the Supreme Lodge, members of the Endowment Rank, elected by the Supreme Lodge. From the members of this Board of Control there should be elected a President, Secretary and Medical Examiner in Chief, all of whom must be members of the Endowment Rank.
    The Board of Control was authorized to designate a solvent bank as depositary of the funds of the Endowment Rank, and was given full control, subject to the supervision of the Supreme Lodge; and to hold and disburse the funds of the Endowment Rank. Its meetings to be held at dates to be fixed by the President in the months of January, April, July and October of each year. This Board was also required to make quarterly reports “giving the financial condition and such information as they may deem necessary, four copies of said report to be sent to each section and a copy to each officer and member of the Supreme Lodge; that the secretary shall be required to give bonds, and shall also be required to deposit with the designated depositary of the Rank all moneys received by bim on account of the Endowment Rank.” It was also made the duty of the Secretary to issue and attest all warrants drawn on the depositary for the disbursements of the fund of the Endowment Rank, such warrants to be signed by the President of the Board of Control.

      Section 5, Article 3 of the Constitution is as follows:
    “The Board shall have power to direct the investment in readily convertible securities of such parts of the Endowment Fund as they may deem wise and proper when the amount in such fund will justify. ’ ’
    The Board was required to keep a full and complete record of its acts and proceedings, and to prepare and submit a report thereof to the Supreme Lodge at each regular session, and at other times to the Supreme Chancellor, if that officer so required.
    The President, under the direction of the Board of Control, had general supervision of the Endowment Bank, and the Secretary was required to receive all moneys due the Bank and deposit the same daily in the designated bank, and notify the President of the amount of gross receipts and deposits, and to keep books showing all entries of receipts and disbursements, so that from time to time the general status of the Endowment Bank may clearly appear, both as to its membership and financial condition.
    The defendant, John A. Hinsey, was President of the Board of Control, and Henry B. Stolte was its Secretary, from April, 1888, until January 27, 1901.
    On August 20, 1901, complainant filed its bill against the defendants, charging" inter alia that on the fourth of April, 1895, John A. Hinsey, Henry B. Stolte, Albert I. Bouffleur, Charles H. Kessler, Wallace D. Millard, Elmer L. Parker and Erastus Sipperly conspired together for the purpose of defrauding the complainant and the Board of Control of large sums of money, to wit, $20,000; that pursuant to said conspiracy Hinsey and Stolte, on April 4, 1895, and while the Board of Control was not in session, and without its authority, purchased with $7,152 of the funds of the Endowment Bank, from the Illinois Trust & Savings Bank, a certificate of salé of Thomas Taylor, Master in Chancery of the Circuit Court of Cook county, made to it on the twenty-seventh of December, 1894, of lots 1 to 8, both inclusive, in block 1, lot 20 in block 1, all of block 2, lot 25 in block 3, lot 27 in block 4, in Walter S. Dray’s Third Addition to Oak Park; that on said date the Illinois Trust & Savings Bank assigned said master’s certificate to the Board of Control; that subsequent thereto, and prior to July 26, 1895, said Hinsey and Stolte pretended to expend money belonging to the Endowment Bank in purchasing certain tax sale certificates, involving general taxes for the years 1893 and 1894, and in payment of special assessments on said property and other disbursements claimed, amounting to $848; and on said last mentioned date Hinsey and Stolte fraudulently pretended to said Board of Control that the sums aforesaid pretended to be expended constituted a loan secured by said master’s certificate, and that the amount of such loan was $8,000; that the defendants, Bouffleur, Kessler, Millard, Parker and Erastus Sipperly, were privy .to the said fraudulent pretenses; that • the Board of Control, being deceived by said fraudulent pretenses, ratified and approved such pretended loan of $8,000, while in fact no such loan had been made; that the Board of Control had no power to loan the funds of the Endowment Bank on such security, and that by reason of the frauds practiced on the Board of Control, the loan is void; that further in pursuance of such fraud, on November 11, 1895, Hinsey, as President of the Board of Control, and Stolte, as Secretary thereof, pretended to assign to WallaceD. Millard said master’s certificate of sale and the interest of the Board of Control therein, for a pretended valuable consideration, to all of which the parties last named were privy; that in fact no consideration passed from defendant Millard to the Board of Control; that no valid assignment of the certificate could be made except by an instrument signed by all the members of the Board of Control, or by their written authority; that on March 28, 1896, the period of redemption having expired, said master executed his deed as such master, conveying to the defendant, Wallace D. Millard, all of the property described in the master’s certificate; that said deed was duly recorded; and that all snch actions were without the knowledge or consent of the Board of Control, and that at no time did complainant or the Board of Control receive any consideration for the making of the master’s deed, and that it was fraudulently procured, and that the defendants, Hinsey and Stolte, Bouffleur, Kessler, Millard and Parker, were privy to all such fraudulent acts.
    That on the first of April, 1896, the defendant Wallace D. Millard, by a quit-claim deed, conveyed to the defendant Elmer L. Parker all his interest in the property, which was conveyed by Master Taylor’s deed, for the nominal consideration of one dollar, which said deed was duly recorded in the recorder’s office of Cook county; that neither complainant nor the Board of Control had knowledge of or consented to the execution of such quit-claim deed, or received any consideration therefor; that on April 1, 1896, said Parker executed his trust deed to Charles T. Allyn, trustee, Henry B. Stolte, successor in trust, to secure two notes for $4,500 each, payable five years after date, with six per'cent, interest, together with coupon notes evidencing the several installments of interest; that by said trust deed he conveyed all of the property described in Master Taylor’s deed, with the exception of lot 20 in block 1, lot 25, block 3, and lot 27 in block 4; charging that Hinsey and Stolte, on April 1, 1896, fraudulently pretended to take and accept said notes and trust deeds in lieu of the pretended loan of $8,000 on the certificate purchased of the Illinois Trust & Savings Bank, and to make an additional loan thereon of a thousand dollars, making a total of $9,000; that defendants Bouffleur, Kessler, Millard, Parker and Sipperly had knowledge of such fraudulent pretenses, and that the sum of $1,000 was not in fact loaned to Parker, but was taken from the funds of the Endowment Bank and appropriated by defendants Hinsey and Stolte to their own use and that of their confederates; that the complainant and the Board of Control not knowing the facts, being misinformed and deceived by Hinsey and Stolte, on the twenty-fourth of April, 1896, ratified the pretended loan of $9*000, and that in fact the Board of Control had no power or authority to loan said funds on such security, claiming that the last mentioned pretended loan, by reason of the fraud so practiced on said Board of Control, is void, as well as for the lack of power to make the loan.
    The bill further charges that on May 4, 1896, another portion of the property conveyed by Master Taylor to Millard, and by Millard to Parker, viz.: lot 20 in block 1, lot 25 in block 2, lot 25 in block 3, and lot 27 in block 4, in Dray’s Third Addition aforesaid, together with the adjoining tract of land described as block 13 of Charles F. Swigart’s Subdivision of lot 5 and the west thirty-three feet of lot 6 in the subdivision of the north half of the southeast quarter, and the east half of the southwest quarter of section 18, was platted and subdivided by said Parker under the name of Sipperly’s Addition to Oak Park* and that plat on July 3, 1896, was recorded in the Cook county recorder’s office; and averring that said lot 13 of Swigart’s Subdivision was bought of Swigart on April 11,1896, by the defendants Hinsey, Stolte, Bouffleur, Kessler, Millard, Parker and Sipperly, and title taken in the name of Parker, and that all of the money used in purchasing said last described land was taken from the funds of said Endowment Bank by the said Hinsey and Stolte without the knowledge or consent of complainant or the Board of Control, and that Bouffleur, Kessler, Millard, Parker and Sipperly had knowledge of such unlawful taking; that on May 25, 1896, Parker made his two promissory notes of $5,000 each, due five and six years after date with interest at six per cent., payable half yearly to his own order and endorsed by him in blank, and that to secure said notes Parker executed a trust deed to Charles T. Allyn as trustee and said Stolte as successor in trust, and conveyed thereby lots 19 to 24 in block 2, lots 1 to 24 in block 3, and lots 1 to 20 in block 4 in said Sipperly’s Subdivision, and that said Hinsey and Stolte, without the knowledge or consent of complainant or the Board of Control, fraudulently pretended to make a loan to said Parker for the sum of $10,000 from the fund of said Endowment Bank, and to take the two said promissory notes secured by said trust deed, when in truth and fact the said $10,000 was not loaned to said Parker or to anybody else, but was appropriated and converted by said Hinsey and Stolte to their own use and to the use of said Bouffleur, Kessler, Millard, Parker and Sipperly, and that said $10,000 was used by them in the purchase of said lot 13 in Swigart’s Subdivision, and that the last named defendant had knowledge of the conversion of said money of the Endowment Bank; that on July 29, 1896, said Hinsey and Stolte. by pretending to said Board of Control that said $10,000 had been loaned Parker on the notes secured by the trust deed, and concealing from the Board of Control the facts above alleged, and thereby deceiving the said Board of Control, procured said Board to approve of said pretended loan; that on June 11, 1896, Parker conveyed to Stolte by warranty deed all of block 1 and lots 1 to 18 in block 2, of said Sipperly’s Subdivision, without the knowledge of said Board, of Control, and that neither the complainant nor the Board of Control received any consideration for said conveyance.
    The bill further charges that the purchase of the master’s certificate and of lot 13 in Swigart’s Subdivision by the officers of the Board of Control, and the making of the pretended loan on said certificate and the subsequent making of the two pretended loans of $9,000 and $10,000 respectively was a part of a scheme, device and conspiracy to defraud complainant and the Board of Control, and the said scheme, device and conspiracy was concocted and practiced upon complain ant and the Board of Control by said Hinsey, Stolte, Bonffienr, Kessler, Millard, Parker and Sipperly for the purpose of defrauding complainant and the Board of Control; that the title to said property was placed in the name of said Millard and in the name of said Parker by the last named defendants, for the purpose of concealing the fact that they were interested in said property; that a portion of. said property aforementioned was subdivided under the name of ‘ Erastus Sipperly’s Subdivision” for the purpose of concealing from complainant and the Board of Control the fact that the property so subdivided consisted in parts of property embraced in the'certificate purchased by the officers of said Board of Control, of the Illinois Trust & Savings Bank; that thereby complainant and said Board of Control were in fact deceived by said fraudulent, pretenses and led to believe that said pretended loan of $8,000 was in fact a loan made bona fide by the officers of said Board of Control in accordance with the laws of said Endowment Bank, and that the said pretended loan of $9,000 was in fact the loan made by the officers of said Board of Control in accordance with the laws of said Endowment Bank, and that said pretended loan of $10,000 was in truth and fact a loan made by the officers of said Board of Control in accordance with the laws of said Endowment Bank and upon other and different property than that covered by said pretended loan of $8,000; and alleging further that on the two Parker notes for $4,500 each there was paid the sum of $1,200 to the Board of Control, and that $7,800 of the principal of said note remained due, together with the coupon interest note falling due April 1, 1901, since which time no payments have been made of either principal or interest; also averring that the two notes of said Parker for $5,000 each, with the last interest note due the twenty-fifth of May, 1901, remained due and unpaid, since which last mentioned date no payments have been made of either principal or interest.

      It is also averred that Charles T. Allyn2 the first ' mentioned trustee, has executed releases on lots 1-to 23 and 24 in block 2 of said Dray’s Addition, and that the same were executed without the knowledge or consent of complainant or of the Board of Control, and represents that the pretended assignment of the said master’s certificate by said Hinsey and Stolte, as President and Secretary of said Board of Control, to Millard, and the deed of Master Taylor to said Millard, and the quit-claim deed of Millard to Parker^ and the deed of Swigart to lot 13 in Swigart’s Subdivision, and the subsequent deed and conveyance of said Parker, were in fraud of the rights of complainant and the Board of Control, and ought to be set aside, declared null and void, and be delivered up to be cancelled under the direction of the court.
    It is further represented that complainant and the Board of Control, under and by virtue of the said master’s certificate and the assignment thereof to the said Board of Control by the Hlinois Trust & Savings Bank, are entitled to a deed from some master of the court, wherein and whereby there shall be conveyed a fee simple title to all of the lots embraced in said certificate, and that complainant and the Board of Control are also entitled, by reason of the fraudulent use of the fund of said Endowment Bank in the purchase of said lot 13 in Swigart’s Subdivision, to a deed of all of the property except insofar as it shall appear that other parties have acquired a good and lawful title to portions thereof without notice of the frauds charged.
    After averring that the defendants, other than those charged as parties to the conspiracy alleged, claim some interest in portions of the premises the subject of attack by the bill, and that such claims are subject to the rights of complainant that have accrued since complainant and the Board of Control acquired title thereto, and making all of them parties defendant, complainant prays:
    “That the said pretended assignment of said certificate to said Millard and the said deed of the said Master in Chancery, Thomas Taylor, Jr., to the said Millard and the said qnit-claim deed of said Millard to the said Parker, and the said deed of Charles F. Swigart to said Elmer L. Parker, and the said several trust deeds of said Parker, and the said deed of said Parker to said Henry B. Stolte may be set aside and declared null and void as against your orator and the said Board of Control, as a cloud upon the title of your orator and said Board of Control, and may be decreed to be delivered up and canceled, and that some master in chancery of this court may be decreed to make a deed to your orator of all of the property embraced in the said certificate of Master in Chancery Thomas Taylor, Jr., as of March 28, 1896, and of said Lot Thirteen (13) in Swigart’s Subdivision as of the 11th day of April, A. D. 1896, except in so far as it shall appear that other parties have acquired good and lawful title to portions of said lands; and that a decree may be entered against all of the defendants who may be adjudged parties to the fraud, deceit and conspiracy practiced upon your orator and said Board of Control in the assignment of said certificate to the said Millard and the procuring of the execution of said deed by Master in Chancery Thomas Taylor, Jr., to said Millard, and of the execution of said deed by said Charles F. Swigart, and the subsequent conveyance by said Millard to said Parker, and the several conveyances by said Parker to the several persons hereinbefore mentioned of portions of said land, for such sum as may be found to be due to your orator by reason of said fraudulent acts of the said defendants; and for such additional sums as this court may find to .be due by reason of the conveyances by said Parker and his grantees, to innocent purchasers for value of any part of said lands without the knowledge and consent of your orator or said Board of .Control, with interest thereon from the dates of such conveyances, and that your orator may have such other and further relief in the premises as equity may require and to your Honors shall seem meet.”
    On March 20,1903, complainant presented a petition to the court setting forth that “Since the filing of the original bill the petitioner has been informed that as. to all of the property sought to be recovered by it in said proceeding, which is not included in and covered by said two deeds of trust, has prior to the filing of said original bill passed into the hands of innocent purchasers for value, whose equitable claims thereto are superior to those of your petitioner. That your petitioner has been advised and believes that it is to its best interest that said cause of action should be changed to a suit to foreclose said two deeds of trust and for an accounting, and that its bill should be amended as aforesaid. ’ ’
    On this petition an order was entered that “Complainant have leave to amend this cause of action and change the same to a suit for a foreclosure of two certain deeds of trust named in said amended bill, and have an accounting,” and on the same date an amended bill was filed by the complainant, setting up substantially the same facts as in the original bill and praying “that an account may be taken in this behalf by or under the direction of this court, and that said Elmer L. Parker and such other of said defendants as the court may determine are liable to your orator by reason of the matters and things alleged in its amended bill may be decreed to pay to your orator whatever sum shall be due it upon the taking of such an account, together with its costs in this proceeding, by a short day to be fixed by the court; that in default of such payment the said mortgaged property may be sold as may be directed by the court, to satisfy the amount due and costs; that in case of such sale and failure to redeem therefrom pursuant to the statute, the defendants and all persons claiming through or under them subsequent to the commencement of this suit may be forever barred and foreclosed of all right and equity of redemption in the said premises,” and for other relief, etc.
    In May, 1904, after considerable testimony had been introduced, a second amended bill was filed by leave of court, setting out the facts substantially as in the former bills, and praying “that an accounting may be taken in this behalf by or under the direction of this court of all the moneys that the said John A. Hinsey and Henry B. Stolte abstracted and withdrew from the funds of your orator and the said Endowment Bank, as is above set forth, and of the interest thereon from the time of taking thereof tó the time of such decree, and for the increment and profit arising therefrom, and for all losses and expenses that your orator has suffered and been put to in the premises; that the said Hinsey and personal representatives of the said Stolte be required to pay to your orator such sum as may upon such accounting appear to be due to your orator on account thereof, and that such other of said defendants, if any, as this honorable court may determine, are liable to your orator by reason of the matters and things hereinabove alleged, or some of them, may be decreed to pay said amount, and that in default of such payment, by a short day to be fixed by the court, said mortgaged premises be decreed to be sold either under said deeds of trust, or otherwise, as the court may determine, to satisfy said amount so found to be due, and the costs of this proceeding, and that in case of such sale and failure to redeem therefrom, pursuant to the statute, defendants and all persons claiming through or under them subsequent to the commencement of this suit, may be forever barred and foreclosed of all right and equity of redemption in the said premises; that after applying the moneys realized from said sale upon their debt, the said Hinsey and the personal representatives of the said Stolte, or some of them, be decreed to pay to your orator such sum as may remain due upon such accounting, ’ ’ and for other relief, etc.
    The defendants Hinsey, Parker, Sipperly and Brooks each answered the original bill and the two amendments, in which answers no controlling averments of fact in either the bill or its amendments were denied. On the contrary, all of the facts in relation to the endorsement of Master Taylor’s certificate by the Illinois Trust & Savings Bank, the making of the master’s deed to the property described in said master’s certificate of sale to Wallace D. Millard, and' the subsequent conveyances and dispositions of the property evidenced by the conveyances recited in the bill, are admitted.
    The material matters set up in defense consist in a denial of all the fraud and conspiracy charged, and averring the bona fides of all transactions, the knowledge of complainant and the Board of Control of all the essential elements entering into the several transactions, that the sums advanced by the Endowment Bank were bona fide loans such as under the constitution and by-laws the Endowment Bank had authority and power to make, and that the real estate security given was ample indemnity at conservative values.
    The defendant Brooks claims an interest in lots 9, 10 and 11 in block 2 in Dray’s Third Addition to Oak Park under an agreement with Wallace D. Millard, dated January 15, 1896, and filed for record July 14, 1899, whereby Millard agreed to convey the three lots for the sum of $1,350, averring that the filing of the bill cast a cloud upon the title, preventing any further acts being done in carrying out its terms, and that the contract was entered into without either knowledge or notice of any rights or equities of complainant.
    Defendant Stolte, since deceased, and his wife, on March 22, 1902, conveyed the property known as the Bhodes avenue lot to Charles F. Neal, president in succession to defendant Hinsey, and on the same day Stolte and his wife conveyed to Carlos S. Hardy, the attorney for complainant, eighteen lots in Sipperly’s Subdivision. These conveyances were made in the sole interest of complainant, for whom Neal and Hardy held the properties conveyed to them respectively.
    Beplications to the answers were filed, and the cause was referred to a master to take proofs and-report his conclusions of both law and fact thereon to the court. All of the parties were heard before the master, and the numerous dealings challenged by complainant were thoroughly elucidated by the proofs, and a report rendered by the master to the court, with his conclusions as to the law governing the transactions. To this report objections were filed before the master, which, being by him overruled, were again filed as exceptions before the chancellor, who sustained some of the exceptions of the defendant Sipperly and overruled the remainder, and as to the defendant Parker sustained some of the exceptions and overruled the others. One exception of the defendant Brooks was sustained and. the others overruled. On the motion of defendants Parker and Sipperly the cause was re-referred to the master for an additional report on the question of usury raised by the answer of defendant Sipperly. Neither Parker nor Sipperly tendered any additional proof before the Master, whereupon the master filed an additional report, saying: “I find no reason to change any of my findings of fact therein with reference to Sipperly’s relations to the matters in controversy, and from the facts found in my said former report I conclude and find that the defense of usury set up in said answer of said Erastus Sipperly and Charlotte Sipperly is not sustained by the evidence.” And the master further recommended the entry of a decree in accordance with his findings and recommendations, and that such decree should provide for canceling of Parker’s notes, aggregating $19,000, and the surrender of the notes to Parker and the release of the trust deeds securing the same.
    Objections filed by Parker and Sipperly to this last report of the master were overruled, and, being refiled as exceptions, were overruled by the court.
    There is in evidence a letter from Hinsey to Sipperly, dated October 4, 1901, in which reference was made to the real estate in controversy, which reads in part as follows: “I am also greatly annoyed about our real estate transactions. You have placed Stolte and myself in a very awkward as well as an expensive position. You sold a number of lots, paid yourself some commission and finally took all the cash payments. You turned over a lot to us on Rhodes Avenue—I do not know how much it is worth, but allowing $1500 for that as I recall it, you still owe us about $700 on that transaction and are making no effort to either pay us or secure us in any way. You then effected a loan of your own of $300, by giving us a mortgage on a lot— as to its value I have no knowledge—the note is past due—there is 1% year’s interest on it that you have not paid, and you have made no effort to aid us with reference to that transaction. What do you propose to do? * * In addition to the money that you appropriated to your own use you disposed of ten lots, that only belonged to you on condition that you acted your part in the real estate transaction between us—■ the moment you obtained title you disposed of them. It occurs to me that you owe it to us and .to yourself to make some effort at this túne to rectifv the wrongs of the past. You ought not to abuse the confidence that brother Stolte imposed in you, in the way you have. As to myself, I had no knowledge of you, and acted only on Brother Stolte’s recommendation.”
    The defendant Parker made a declaration of trust, which is as follows:
    “Whereas W. D. Millard, of the City of Chicago, has, by a deed bearing date April 1st, 1896, conveyed to me the following described real estate, to-wit: Lots one (1) to eight (8),'both inclusive, in Block one (1), and lot twenty (20) in block one (1), all of block two (2), lot twenty-five (25), block three (3), and lot twenty-seven (27) in block four (4), all in Walter S. Dray’s Third Addition to Oak Park, being a subdivision of block one (1), two (2), three (3) and four (4) of Shippen’s Addition to Oak Park, being a subdivision of block one (1), two (2), three (3) and four (4) of McGrew’s Subdivision of lot seven (7) of a Subdivision of Section eighteen (18), Township thirty-nine (39) north, Range thirteen (13) East of the Third .Principal Meridian, (except west half of south-west quarter of said Section), situated in County of Cook and State of Illinois.
    “And whereas, Charles F. Swigart and wife, of the City of Chicago, have also conveyed to me block thirteen (13) in Swigart’s Subdivision of lot five (5), and the west thirty-three (33) feet of lot six (6) in the Subdivision of Section eighteen (18), Town, Bange, County aforesaid.
    “Now, therefore, in consideration of one dollar ($1) to me in hand paid, I do hereby for myself, my heirs, executors and administrators, acknowledge that I hold title thereto in trust only, for the use and benefit of John A. Hinsey, Henry B. Stolte and Erastus Sipperly, * * * and that I have no beneficial interest therein, and I do for myself * * * covenant and agree to and with said John A. Hinsey, Henry B. Stolte and Erastus Sipperly, and each of them, and with their and each of their executors, administrators and assigns, that I or my heirs, executors and administrators, shall and will upon demand convey the said premises by a good and sufficient deed to the said John A. Hinsey, Henry B. Stolte and Erastus Sipperly, and their assigns, as they may direct or require.
    “In witness whereof I have hereunto set my hand and seal this 25th day of April, A. D. 1896.
    “Elmer L. Parker, (Seal).
    “Acknowledged before W. D. Millard, a Notary Public, on the 25th day of April, 1896.”
    George F. Baker likewise made a declaration of trust as to the Chicago Herald property June 7, 1895, and among other things declared that he held the title and possession in trust only for John A. Hinsey, Henry B. Stolte and Erastus Sipperly, and acknowledged and declared that he had no title or interest therein, but held the same in trust for the benefit of the parties aforesaid.
    A final decree as, amended by the order of June 16, 1906, was entered June 1, 1906, conforming to the master’s report as modified by the sustaining of certain exceptions thereto made by the defendants Sipperly, Parker and Brooks. The findings of the decree are voluminous and cover every phase of the facts involving the interests of the several parties.
    The decree finds that the defendants John A. Hinsey, Erastus Sipperly and Catherine E. Stolte, as administratrix of the estate of Henry B. Stolte, deceased, were indebted to complainant to the amount of $17,401.89, and orders that unless the same, with interest at five per cent., and costs, be paid within ninety days, the real estate acquired in fraud of the rights of complainant, and not previously disposed of to innocent purchasers for value, be sold without the right of redemption, and that for any deficiency a personal decree should be entered against the parties last named; and that the two trust deeds and the notes secured thereby be canceled, satisfied and released and they were delivered to the master for that purpose.
    Robert R. Baldwin and Benson Landon, for plaintiffs in error.
    Scott, Bancroft, Lord & Stephens and Carlos S. Hardy, for defendant in error; Frank H. Scott, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

We shall confine our review and discussion in this opinion to the facts and the law only, as they affect the interests of the defendants Hinsey, Sipperly and Brooks, plaintiffs in error here, and the defendant, Elmer L. Parker, appellant in case Ben. No. 13,193, consolidated for hearing with this writ of error.

Counsel for defendant Hinsey prefaces his statement of facts with this observation: “There is but little conflict in the evidence of this case. The facts which we submit are controlling and not controverted. ’ ’

We are convinced from an examination of the record that the pertinent facts controlling the rights of the parties are not, when divested of the refinements of distinction indulged in argument, open to serious controversy.

This evidence fully sustains the findings of the decree, which is the foundation upon which the right to maintain it must be predicated, that all the transactions were entered into by Sipperly, Stolte and Hinsey for their own benefit, and that they were jointly interested in the real estate, and that the money was drawn from the funds of the Board of Control and advanced for the purchase of all the real estate in question, for the joint benefit of Hinsey, Sipperly and Stolte, and that such payments were a fraudulent conversion of the funds of the Board of Control.

In the light of the overwhelming proof of the glaring fraud of these persons, the argument of counsel for Hinsey that ‘ ‘ Mr. Hinsey * * * objects to a decree which finds that he has been guilty even of a constructive fraud, even though such decree might result in his financial advantage,” is hypocritical and disingenuous. On the contrary, so far from Hinsey and his co-conspirators being' guilty of a constructive fraud, they are condemned by the record as guilty of intentional and deliberate fraud upon complainant in their dealings with the real estate in question and with the funds of complainant which paid for it.

To support the charges of fraud we find in this record that the moneys of complainant were, in violation of its constitution and by-laws, used in the purchase of the real estate under the delusive representation that they were loans made upon ample real estate security. We have searched this record in vain in an attempt to find where any of the parties to this conspiracy furnished one dollar of money, obtained from any source independent of complainant, for the initial purchase of any parcel of real estate. The transactions here challenged were initiated by Erastus Sipperly negotiating for the purchase from the Illinois Trust & Savings Bank of the master’s certificate for the sum of $7,352.25. Hinsey and Stolte, President and Secretary of the Board of Control, April 4, 1895, drew a check for $8,000 in their official capacity, which money was used in the purchase of the certificate and in payment of taxes accruing during the period of redemption. The master’s certificate was assigned by the bank'and delivered to the Board of Control. At this time William Garnett, Jr., was the record owner of the equity of redemption, and on October 31, 1895, for the consideration of $900, conveyed such interest to Wallace D. Millard. This purchase was financed by Hinsey and Stolte, in their official capacity, drawing a warrant against the funds of complainant in the First National Bank of Chicago for $1,000, $900 of which was used to pay Garnett. The Board of Control, thereupon, through Hinsey and Stolte, assigned the master’s certificate to Millard, who surrendered the certificate to the master on March 28, 1896, and received in return a master’s deed conveying the property set forth in the certificate. At this time Hinsey was general claim agent for the Chicago, Milwaukee & St. Paul Railroad Company, and Millard was employed in a subordinate capacity, under Hinsey, at a small salary. He was a friend of Hinsey’s, without property or means save only his salary. He was simply used as a conduit through which to pass the title to the land.

On April 1, 1896, Millard quit-claimed to the defendant Elmer L. Parker all of the property described in the master’s deed. Parker was a claim agent of the Chicago, Milwaukee & St. Paul Railroad, who worked under the direction and authority of Hinsey, the head of the department. Parker paid no money or other valuable consideration, or any consideration, for the conveyance to him, and Millard made the conveyance at the direction of Hinsey. On April 6, 1896, Parker made a trust deed to secure $9,000 to Charles T. Allyn as trustee and to the defendant Stolte as successor in trust. This trust deed, being ostensibly made to secure payment of the advances made from the funds of complainant for the whole of the property conveyed by Millard to Parker, conveyed only a portion of such property, leaving the title to a material and valuable portion of it vested in Parker, free of all encumbrance.

The defendant Erastus Sipperly then negotiated with Charles F. Swigart for the purchase of block 13 in Swigart’s Subdivision, etc., for the sum of $8,500, Swigart and his wife conveying the property to the defendant Parker by deed dated April 11, 1896. This purchase was paid for with the funds of the complainant, by Hinsey and Stolte officially drawing a warrant for the sum of $10,000 in favor of one F. E. Baldwin, who was a clerk in the employ of Sipperly, of no financial responsibility. Eight thousand, five hundred dollars of this warrant was paid to Swigart for the land and the remainder used in payment of taxes and other charges on the real estate.

In May, 1896, Parker subdivided the land purchased from Swigart, together with the land conveyed to Parker by Millard, and omitted from the trust deed securing the $9,000 to Allyn, trustee, naming it “Erastus Sipperly’s Subdivision.” This subdivision was divided into four blocks, the lots in the blocks aggregating eighty. Parker, on May 25, 1896, executed a trust deed to Charles T. Allyn, as trustee, and defendant Stolte, successor in trust, to secure the $10,000 'of complainant’s money used in the purchase of the Swigart property conveying the property in Erastus Sipperly’s Subdivision with the exception of thirty lots. The title to these thirty lots remained in Parker unencumbered, not having been included in either of the trust deeds.

These manipulations with the funds of the complainant in these several real estate transactions were confined to Hinsey and Stolte, and were by them concealed from the other members of the Board of Control, and the fact that Hinsey, Stolte and Sipperly were interested in these transactions was studiously and designedly kept from the other members of the Board of Control. In all these transactions Hinsey and Stolte, only, represented the Board of Control.

The Endowment Bank was authorized to loan money only when there were surplus funds on hand, from which loans could be made; yet the record shows that when the $8,000 was withdrawn, the bank account was overdrawn in excess of $42,000; when the $1,000 was withdrawn, the deficit was more than $11,000, and more than $19,000 when the $10,000 was withdrawn from its bank account. All of this money was extracted upon the pretenses of loaning upon the security of the real estate for which the several sums of money were in fact used to pay the whole purchase price.

The finding of the court, in which we unreservedly concur, was that these moneys were drawn from the funds of the Board of Control and advanced for the purchase of the premises in question for the joint account of Sipperly, Hinsey and Stolte, and constituted a fraudulent conversion of the funds of the Board of Control, a diversion which could be neither sanctioned nor ratified by the Endowment Bank; that the property known as the Bhodes avenue lot was acquired by Stolte with the proceeds of real estate acquired with the funds of complainant, and that the same was held by Stolte for the use of himself and Hinsey.

Stolte, since the filing of the bill, seems to have admitted his part in these fraudulent transactions, and on March 2, 1902, conveyed the Bhodes avenue lot to Neal, Hinsey’s successor, as president-of the Board of Control, for the use and benefit of complainant, which lot Neal subsequently conveyed to complainant.

On October 30, 1895, Millard executed a declaration of trust in which he recited that the conveyance of Garnett to himself was made to and was then held by him in trust only for the use and benefit of Stolte, Hinsey and Sipperly, and that he had no financial interest therein. Parker on April 25,1896, also executed a declaration of trust, in which he recited: “I do for myself, my heirs, executors and administrators, acknowledge that I hold title thereto in trust only for the use and benefit of John A. Hinsey, Henry B. Stolte, and Erastus Sipperly. * * * I have no beneficial interest therein.”

Parker, after the execution of the trust deed, conveyed the omitted thirty lots to Stolte, and Stolte conveyed ten of said lots at the direction of Sipperly and held the remaining twenty for himself and Hinsey. Stolte by deed dated March 22, 1902, conveyed all the property standing’, in his name to Carlos S. Hardy, the attorney of complainant, for its use and benefit. Hardy and his wife in their answer admitted holding the title to the lots so conveyed by Stolte for the use of complainant, disclaimed any interest therein, and consented to the entry of any order in relation thereto which the court might deem for the best interest of complainant. Stolte afterwards conveyed and delivered to Hardy all notes, contracts and securities in his possession relating to the property unlawfully obtained with the funds of complainant.

Stolte, as far as he was able, before his death, made restoration of all the interest he acquired through the unlawful use of complainant’s money, to the diversion of which he was a party.

The property known as the Chicago Herald property was by like means conveyed to one George F. Baker, who by a declaration of trust dated the seventh of June, 1895, which was held by Stolte, declared that his title and possession was held in trust for Hinsey, Stolte and Erastus Sipperly.

From the foregoing it is evident that complainant’s money paid for thirty lots which, by manipulation, Hinsey, Stolte and Sipperly appropriated to their own use, without a dollar’s requitement therefor to complainant. Sipperly acquired ten of the thirty lots, his share agreed upon; and wliile Hinsey contends that he had no knowledge of these dealings, yet, on October 4, 1900, in a letter recited in the statement preceding this opinion he said: “In addition to the money that you appropriated to your own use, you disposed of ten lots that only belonged to you on condition that you acted your part in the real estate transaction between us. The moment you obtained title you disposed of them.”

In the light of the evidence, it is clear that notwithstanding Stolte may have had possession of the several declarations of trust, yet Hinsey was not only party to, but cognizant of, their contents. He told Sipperly that he wanted two of the thirty lots which were situated on the corner of Harrison street; and from the active part he took in these transaction as the President of the Board of Control, he must be held to be cognizant of these dealings. Hinsey is again contradicted by his co-conspirator, Sipperly, who testified that “The terms of the declaration of trust were discussed between Mr. Hinsey and myself and it was in pursuance of such conversation that the declaration of trust was made. Mr. Hinsey said the declaration of trust should show what each one owned and who owned it. It was stated that each one owned one-third.”

Parker was substituted in place of Millard, on consultation with Hinsey. Hinsey’s- contention that the declaration of trust in favor of himself was really for the benefit of the Endowment Bank falls of its own weight, in view of the fact that he failed to have any notation or entry thereof made on any of the books of complainant. As said by the master in his report: “If Hinsey’s testimony that he had no personal interest in the matter is true, then it would appear that for the purpose of assisting Sipperly, in whom he had no interest whatever, in a real estate transaction, Hinsey advanced from the funds of the Board of Control in his charge more than the aggregate purchase price of the two tracts of land, that he allowed Sipperly to retain out of the lands thirty lots clear, and assumed no personal responsibility for the repayment of the moneys advanced, and representing a fund held in trust, only took as security notes signed by a dummy, who did not expect to pay the same and was not understood by Hinsey to assume any personal responsibility in the matter, the sole security' being that portion of the property covered by the incumbrances; and, further, that at the time he did this the Board had no idle funds to invest, hut obtained the money by overdrawing its account at the bank, on which overdraft it may be assumed the Board was obliged to pay interest.

“No rational explanation is offered to explain why, if Hinsey was not interested, that his friends Millard and Parker executed, as part of the transaction by which they received title, the two declarations of trust * * * setting up Hinsey’s interest in the property.

“The only rational explanation of Hinsey’s course of conduct in the whole transaction is offered by the testimony of Sipperly that the speculation was entered into for joint account of Sipperly, Hinsey and Stolte.”

The conduct of Hinsey cannot he excused. He was an officer of complainant and inhibited by every legal and moral consideration from making a profit out of the trust confided to him—a trust of the most sacred character, involving the interests of widows and orphans, which he jeopardized by these unlawful transactions.

Sipperly’s testimony fastens beyond removal the interest and relation of Hinsey to these transactions, which the law stamps with its disapproval and stigmatizes as dishonest. Hinsey, as a trust officer having no right to assume interests in conflict with that of complainant, must, by well-settled principles, surrender all such interests so acquired and be held responsible to make good every dollar which complainant may have lost. Complainant had a right to proceed for alternate relief and to select that method which in its opinion will ultimately result in making it whole.

The doctrine of impressive trusts is sufficiently broad in its scope to permit the following of money, wrongfully appropriated by one standing in a fiduciary relationship to another, into whatever property it may have been invested. Robison v. Roos, 37 Ill. App. 646, affirmed in 138 Ill. 550; Verble v. Dillow, 218 Ill. 537.

We do not think the doctrine of estoppel is pertinent as applied to the amendments to the bill as originally filed. There is nothing in its averments which warrants the conclusion that any of the unlawful acts of the conspirators were ratified, or any of the offenses committed by any of the parties in interest against complainant condoned.

The theory of the original action has not been departed from in either of the amendments subsequently made, and at the most the amendments inject into the cause a new method to be adopted in obtaining the ultimate relief sought by the original bill. If the alternative method was open to complainant, it had a right to pursue it, and this we think it might have done under its prayer for general relief.

And furthermore, the transactions attacked were in themselves illegal, which complainant had no power to ratify. Best Brewing Co. v. Klassen, 185 Ill. 37; Chicago Hansom Cab Co. v. Yerkes, 141 Ill. 37; Crichfield v. Bermudez Asphalt Paving Co., 174 Ill. 466; National Mahaiwe Bank v. Barry, 125 Mass. 20.

By the original bill complainant sought to follow the funds wrongfully invested in real estate. By the bill as amended it seeks to recover the money misappropriated and to have the property purchased with that money, or its proceeds, subjected to payment of the amount due. This method does no violence to the rights of any of the parties.

The rights of all the parties who were innocent purchasers of any of the real estate involved were properly conserved by the terms of the decree, and none of them are here complaining, with the exception of Brooks; and as to all parties other than the innocent purchasers, the decree ordering a sale without redemption was right, for in law the wrongdoers had no title, legal or equitable, entitling them to redeem. The title which these wrongdoers had acquired was in fraud of the rights of complainant, and obtained by wrongful appropriation of its funds, and as held in Beach v. Shaw, 57 Ill. 17, a person having a merely naked legal title, with no equitable rights, cannot redeem, and the liability of the conspiring defendants remains to make complainant whole from any loss following the misappropriation of its funds, and therefore, if the property remaining subject to sale under the decree is insufficient to reimburse it, with interest and costs, then the conspiring defendants remain liable to make that deficiency good, and a judgment for such deficiency rendered against them.

We think the method of accounting adopted by the decree fulfills all legal requirements. Credit has been given to the defendants held personally liable for every dollar paid, from whatever source it may have been collected.

The defendant Sipperly, the evidence demonstrates, was a co-conspirator with Hinsey and Stolte, and as such he must be held to the same degree of responsibility to complainant as they. Sipperly had full knowledge of the official position of Hinsey and Stolte in the Board of Control, and is chargeable with knowledge of the diversion of complainant’s funds, and that the property, in equity and good conscience, was that of complainant. He has no title recognizable in a court of equity. Lamson v. Beard, 94 Fed. Bep. 30.

As to the defendant Brooks, she made a contract in good faith with Millard for the purchase of lots 9, 10 and 11 in block 2, in Dray’s Third Addition to Oak Park. There was due from her, of principal and interest, and for taxes advanced by complainant, at the time of entering decree, $979.92. This the decree ordered her to pay within ninety days, with interest at five per cent., and in default directed that the three lots be sold subject to her right to redeem under the statute, and that the money received from such sale be applied by the master upon her indebtedness. Complainant, in legal intendment owning the land, is entitled to all that is due upon it from any innocent purchaser. This is all the decree exacts from Mrs. Brooks. It is patent no violence is done to her interests, as she is only required to perform according to- her contract with Millard.

By inadvertence certain property was omitted from the order of sale in the decree. This was corrected by an order entered of record in the Circuit Court on the twenty-second of March, 1907, and on suggestion of a diminution of the record a certificate of those proceedings has been added and made a part of the record.

The decree of the Circuit Court is without error, and it is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Adams

license: Public Domain

text:
    Commonwealth Electric Company v. Harry Rooney.
    Gen. No. 13,584.
    1. Trial—what essential to preserve for review objection to particular judge. In order to preserve for review the question of the propriety of a particular judge presiding at a trial, it is essentia] that an objection be made and that the same, together with the basis thereof, and an exception to the ruling of the court thereon, be supplied in the record by means of a bill of exceptions.
    2. Judge—when objection for alleged prejudice waived. Failure to specify in the written motion for a new trial containing the points relied upon, the objection to the presiding judge, waives the question.
    3. Declaration—how question whether, states cause of action, determined. The question as to whether a declaration states a cause of action is determined by an inspection thereof without reference to the evidence.
    4. Declaration—when states cause of action for failure to furnish safe place to work sufficient after verdict. A declaration is sufficient which charges that the defendant negligently provided a dangerous and unsafe place, of which the plaintiff had no knowledge or means of knowledge, and that, because of such negligence of the defendant, the plaintiff was injured, without his fault.
    5. Master and servant—scope of duty to furnish safe place to work. The duty of the master to exercise reasonable care to furnish the servant a reasonably safe place in which to work, is not limited to the time when the servant commences work, but is continuous, and if while the servant is working at the place furnished hy the master, it is, by reason of the master’s negligence, made unsafe and. dangerous, without the servant’s knowledge, and the servant is thereby injured, while exercising ordinary care, the master is liable.
    6. ' Variance—when objection for, comes too late. An objection for variance cannot be first made on appeal.
    7. Negligence—when proof of custom competent upon question of. If an injury has resulted by reason of a master’s departure from an established custom of his business, proof of such custom is competent and material.
    8. Instruction—upon ordinary care approved. An instruction upon the subject of ordinary care is proper which tells the jury that if they find from the evidence “that the plaintiff, at the time of and prior to the accident in question, exercised that degree of care for his own safety that an ordinarily prudent person would have exercised under the same circumstances,” then they should find that he exercised ordinary care.
    9. Verdict—when not excessive. A verdict for $30,000 is sustained under the evidence recited in the opinion.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Ci-ieteain, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed January 13, 1908.
    F. J. Canty, J. C. M. Clow and E. E. Gray, for appellant ; H. E. Long, of counsel.
    Morse Ives, for appellee; Earl J. Walker, of counsel.
   Mr. Justice Adams

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellee and against appellant for the sum of $30,000. The declaration, as amended, contains four counts, but the court instructed the jury to disregard the second, third and fourth counts and the case went to the jury on the first count only. The appellant pleaded the general issue. In the first count it is averred, in substance, as follows: The defendant was a corporation and possessed and owned certain wires strung on poles, etc., and used by it in carrying on the business of illumination by electric lights, and had erected one of said poles at a point in an alley west of Elston avenue and north of Armitage avenue, in the city of Chicago, over and upon which it had caused its said wires to be strung. June 11, 1902, plaintiff was in defendant’s employ as a lineman to connect up a three-faced ground, called a lightning arrester, on poles and crossbeams with wires attached thereto, at the place aforesaid. “Defendant, disregarding its duty to furnish plaintiff a reasonably safe place in and around which to work, conducted itself so carelessly and negligently in that behalf, that it provided a dangerous and unsafe place, as defendant, by its agents and servants then knew, or in the exercise of ordinary care might have known, hut of which plaintiff did not know and had not the means of knowing, that in consequence of said negligence of defendant, at the time and place aforesaid, and while plaintiff, in said capacity as a lineman, was working upon said pole and appliances, as aforesaid, he, accidentally and without any fault or negligence on his part, came in contact with live wires heavily charged with electricity, and was thereby then and' there severely shocked, cut, bruised, burned, wounded and injured both internally and externally,” etc.

The defendant pleaded the general issue. At the close of the plaintiff’s evidence, and also at the close of all the evidence, defendant’s counsel moved the court to instruct the jury to find the defendant not guilty, and presented with each of said motions an appropriate instruction. The court refused said motions, and the jury found for the plaintiff and assessed his damages at the sum of $30,000, and the court, after overruling motions by the defendant for a new trial and in arrest of judgment, rendered judgment on the verdict. The case has been tried three times. On the first trial, the Hon. Axel Chytraus, J., presiding, the jury found the issues for the plaintiff and assessed his damages at the sum of $20,000. A new trial was granted, on defendant’s motion, and on a second trial, the Hon. Arthur H. Chetlain, J., presiding, the jury disagreed. The third trial is the one in question. Following are the contentions of plaintiff’s counsel, which we will consider in the order in which they are made by counsel:

1. It is assigned as error and now contended, that “the court, Judge Chetlain presiding,' erred in sustaining plaintiff’s motion, in setting the case for trial before himself, with the record in the case showing that objections were made to said Judge Chetlain hearing the case because of prejudice toward the defendant, and because the defendant believed it could not get a fair trial of said cause before said Judge Chetlain, as shown by the record then on file. ’ ’ There is no bill of exceptions showing any objection to Judge Chetlain presiding at the trial, when the cause was called for trial before him, April 10, 1906. That trial was the second trial of the cause in which the jury disagreed. February 3, 1906, the court, Judge Chetlain presiding, entered an order as follows: ‘ * Ordered by the court that said cause be and is hereby set for trial on Tuesday, March 6, 1906, A. D. It is further ordered that leave be and is hereby given the defendant to file its bill of exceptions herein within ten days from this date.” No bill of exceptions to the order was filed. June 13, 1906, the following order, Judge Chetlain presiding, was entered: ‘ ‘ On the stipulation of the parties to this suit filed, it is ordered that this cause be and is hereby passed to be placed at the head of the supplemental calendar.” October 8, 1906, the cause was called for trial and a jury impaneled, and the trial resulted in the judgment appealed from.

No jurisdictional question is involved. Judge Chetlain is one of the judges of the Superior Court of Cook county and had jurisdiction of the parties and the subject-matter of the cause. The contention, considered on its merits, is transparently untenable. But the defendant is not in a position to make the contention for two reasons. The record shows no objection made before Judge Chetlain to his presiding at the trial,- and in the defendant’s written motion, specifying grounds for the motion, the trial of the cause before Judge Chetlain is not specified as ground for a new trial, and the defendant is limited here to the grounds specified in its written motion for a new trial. Railroad Co. v. McMath, 91 Ill. 104.

2. It is contended that the first count of the declaration on which the verdict rests, does not state a cause of action. In passing on this contention, we must look solely to the count, without any reference to the evidence. It is true that it might have been better to have averred the specific negligence relied on; but it is averred that the defendant negligently provided a dangerous and unsafe place, of which the plaintiff had no knowledge or means of knowledge, and that, because of such negligence of the defendant, the plaintiff was injured, without his fault. Suppose an amendment to be filed to such a count as the one in question, setting up specifically the negligence relied on, in respect to the place where plaintiff was working, and a plea of the Statute of Limitations should be filed to it. Could it be held that the amended count stated a new cause of action? We think not. The averment would still be of negligence in providing an unsafe and dangerous place in which to work.

A general charge of negligence is not new in pleading. It was good in the time of Chitty; 2 Chitty on P’g., 9 Am. ed., pp. 710, 713. Such a charge was held sufficient in Chicago City Ry. Co. v. Jennings, 157 Ill. 274, and in Grace & Hyde Co. v. Sanborn, 124 Ill. App. 472. In Sargent Co. v. Baublis, 215 Ill. 428, the objection was the same as in this cause, in respect to which the court say:

“It is next contended that the declaration is fatally defective in not alleging any actionable negligence. The negligence alleged is, that the defendant negligently and carelessly permitted the grindstone to be and remain in a defective and dangerous condition, and there is no statement what defect existed in it or how or why it was dangerous. This objection to the generality of the statement, without setting out the nature of the alleged defect, is one that should have been taken by demurrer, and the defect was cured by the verdict.” Citing C., B. & Q. R. R. Co. v. Harwood, 90 Ill. 425, and B. & O. S. Wes. Ry. Co. v. Keck, 185 ib. 400.

Evidently the contention that the count does not state a cause of action is an afterthought of counsel. They did not demur to the count, but pleaded to it issuably, and now, after a trial involving large expense, they advance this contention for the‘first time. Without passing on the question whether the count is obnoxious to general demurrer, we hold it good after verdict.

Counsel say: “The count under consideration shows and alleges that the wires upon which plaintiff was working were charged with electricity, and while so charged the plaintiff went to work thereon.” We do not so understand the count in question. It is averred that the wires were charged with electricity, at the time of the accident, but it is not averred directly or indirectly, at what time the electrical current was turned onto the wires. The count is entirely consistent with the fact, that when the plaintiff commenced to work at the place in question the wires were not charged with electricity, but were so charged thereafter, while he was working at that place.

3. Counsel contend that there is no evidence of negligence of the defendant entitling plaintiff to recoven This contention involves consideration of the evidence, which is quite voluminous, twenty-one witnesses having testified, many of them at great length.

A map or plat of the territory in which plaintiff was working before and at the time of the accident is in evidence and shows the streets, etc. The east and west streets are North avenue, Wabansia avenue, Bloomingdale road and Armitage avenue. North avenue is the most southerly street, and the other streets above named lie north of it in the order named. Ashland avenue lies north and south and intersects all the streets above named except Bloomingdale road, which terminates at Ashland avenue. California avenue lies northeasterly and commences at the north end of Ashland avenue, and intersects Elston avenue, which lies northwest and southeast. The pole where the accident happened is in the alley north of Armitage avenue and west of Elston avenue. The place where the old and new wires were connected is about opposite the alley next south of Wabansia avenue, and the school house mentioned in the evidence is west of Ashland avenue and about opposite the place where the wires were connected. The Naugle Tie Co.’s yard is northeast from that part of Elston avenue lying north of Armitage avenue. From the pole where the accident occurred to the place where the old and new wires were connected is from six blocks to a mile.

The plaintiff was within a few days of being thirty-one years of age at the time of the accident, and had been, at that time, in the employ of the defendant about two years, and, once before his last employment, had been in defendant’s, employ four years. He was an experienced lineman, and had been engaged in that occupation for about fourteen years. George W. Beale, defendant’s foreman, who directed and supervised the work which plaintiff was doing, testified in respect to plaintiff“He was a good lineman; there was none better; he was one of the best linemen in the country; he was looked up to as an expert lineman, a good A No. 1.”

Plaintiff was employed by the defendant as a lineman. Plaintiff testified in substance that in the afternoon of June 10, 1902, he put on some lightning arresters on a pole in an alley north of Armitage avenue and west of Elston avenue, in the city of Chicago; that there were three wires lying on one end of the cross-arm of the pole and not fastened to the insulators, and no wires on the other end of the cross-arm, and that, on June 10th, there was no current passing through or over those wires that he knew of. June 11th he did some other work in the forenoon, and after dinner Beale, the foreman, said to him, “Harry, you get what stuff you need and go and finish up that pole and box, and finish up that job.” Plaintiff then got the necessary material for the work to be done, and started to go to the pole where he worked on June 10th putting on lightning arresters, but before getting there he returned to the supply wagon and said to Beale, “How is them wires up there? Had I better have a pair of rubber gloves? He said, ‘No, they are dead, nothing in them. ’ ” Plaintiff then went to the pole, taking with him a hand line or rope with which to pull up the material needed from his helper, the ground man at the foot of the pole. When he climbed the pole he went to place his “safety” (which is a belt worn around the person) on the pole, and the inside wire lay between the first pin and the pole, and he took hold of the wire and turned it a little to one side and felt what is known to linemen as induction, when he descended the pole and went toward the supply wagon, and when about thirty-five feet distant from the wagon, Beale, the foreman, said to him, “What is the matter, Harry, what do you want?” and he said, “I feel a little induction on there, George,” and Beale said, “I don’t see where in the hell you are getting it; the wires are dead.” He paid no attention to this, hut went to the wagon and took;a pair of rubber gloves from it, when Beale said to him, “Haven’t I told you they are dead?” and witness said, “I’ve got a little induction on them,” to which Beale replied, “Oh, that is nothing.” On cross-examination plaintiff testified: ‘ ‘ Static is what is known as foreign or induced current, which would be caused by dead wires coming in closely to or running parallel to heavily charged wires, and this causes static or foreign induction current. It is a mere tingling sensation. For instance, when you are working on the wire,. it will keep tingling at you and bothering you like a tickling sensation. In fact every lineman knows it to be a nuisance and bother when working.” The evidence, including that of defendant’s witnesses, is that it is not dangerous to handle wires affected by induction. Continuing in his examination in chief, plaintiff said: “I went to straighten up to unhook my safety, in order to throw a little slack into the safety, so as to unsnap it, and as I did so, I came in contact, in some way, with the wires on the cross-arm. All I can tell is, I was straightening up, and as I was straightening up all I heard was bizz-bizz. That is all I know about it. ” Plaintiff then proceeded to describe his injuries, which will be referred to hereafter. On cross-examination plaintiff testified that in the afternoon of June 10th he put up the arrester boxes, but did no wiring; that he fastened the wires June 10th; also that when he quit work on the 10th the wires 'on the pole were dead. Daniel J. Bagley, a lineman in defendant’s employ, testified that on June 11th he saw plaintiff coming under the viaduct, and he asked for something, and he heard Beale say to him, “I don’t see where you are getting it; those wires are dead,” and Booney said, “I can’t see it neither, but I am getting it,” and then plaintiff and Beale got close together and witness heard nothing more said. The witness, Bagley, was, at the time, up on a pole about twenty-four feet from the ground. The viaduct referred to by the witness was a short distance from the pole where the accident happened. This witness further testified that on June 11th he was working on a pole, and asked Beale if he would need rubber gloves, and Beale said “No, the wires are dead.”

The plaintiff was engaged in construction work on the pole when he was injured, and the evidence is, that it is usual not to charge the wires with electricity till * the construction work is complete. Mr. Hughes, an electrical construction foreman, called by defendant, testified, on cross-examination, as follows:

“Q. Ton have dead circuits during the work of construction, don’t you? They are hardly circuits until they are completed, and then they are made alive; that is the last act, isn’t it, in the usual and ordinary course, to make it alive? A. Tes.”

Philip Bender, an electric lineman, called by plaintiff, and who had been in defendant’s employ, testified : ‘ ‘ The custom was to do the construction work first, do everything • first, and get everything ready, and then cut it in on the live wire. ’ ’ By ‘ ‘ cutting in” is meant, as shown by the evidence, connecting the new dead, wire with live wires. Sherman M. Neff, a lineman, called by plaintiff, also so testified. Donovan, called by defendant, testified on cross-examination, that by Beale’s order, he helped plaintiff, June 10th, at the pole on which the accident happened, and heard a conversation between Beale and the plaintiff on the afternoon of that day, when the following occurred:

“Q. Do you remember what the conversation was? A. Well, it was relative to the finishing of the work. Harry said something about finishing the work before transmission wires were put in, and Beale said, ‘No, let it go; we have something else to do; we will come back and do this some other time.’ Rooney said he wanted to finish the work before the juice was put in. That was about three o’clock of the afternoon of the 10th. Beale told him to wait and do it later. We then left the job and went to Clybonrne and Ashland avenues, where the wagon was.” The electric current is called “juice” in the jargon of linemen and others employed in electrical work.

Plaintiff’s evidence as to the conversation between him and Beale, when he went to the wagon for rubber gloves, is contradicted by witnesses called by the defendant. Beale was questioned in chief and answered as follows:

“Q. Did you at that time say, ‘Tou don’t need gloves; they are dead?’ A. No, sir; told him my general orders; they are always dead.
Q. General orders ? A. Yes, sir, that is, with me, general orders, always dead. What would I tell you to put gloves on for if you worked at that business— would I tell you what to do?
Q. Well, did you say that to him; that is what I want to get at? A. No, I did not.
Q. Do you mean always dead or always alive? A. I claim the wire is always dead to any man who ever worked for me. I haven’t the license to say that, but I always say, ‘Play them wires alive.’
. Q. That is what I want to know. A. You don’t understand it, maybe.
Q. No, I don’t. A. Play those wires alive, dead or anything else. In stringing new wires, that is my idea, to tell them to play them alive.
Q. In the profession, then, they are always known as the same, and they must play them alive? A. Yes.”

If what plaintiff’s counsel say of Beale’s appearance on the witness stand is true, the jury could not have been favorably impressed by his evidence. We cannot know from the record how he appeared, but his testimony indicates indifference, flippancy, callousness and recklessness. It became necessary for defendant’s attorney to reprove him. The following occurred in his cross-examination:

“Q. Wasn’t Fox his helper on the 11th? A. Yes— I am under oath now, recollection; I will tell you that.
Q. I understand, and whenever you are not under oath let me know. A. Yes, you bet your life I am— you bet your life I will.” * * *
“A. That’s the eye.
Q. That’s the eye, you say? A. Yes.
Mr. Gray: This is really not a laughing matter.
A. Well, what are you laughing at? I can laugh if I want to, I guess.”

This witness refers to plaintiff as “his job lots,” saying, “I left on Elston, his ‘job lots’ there at the corner to finish that job, and I distributed them out, along down there to the tie works.” '

Fox, who was plaintiff’s helper, called ground man, and whose place was at the foot of'the pole on which plaintiff was at work, testified that he did not hear plaintiff ask for gloves, or Beale say that he didn’t know what he wanted them for, that the. wires were dead; that plaintiff said it was hot up there; that he, witness, saw the gloves come down and heard Beale ask Rooney if he was through, and he said he was, and Beale told him to keep his gloves if he was not through, as it was hot up there. Martin Matson, the driver of the supply wagon, testified that, June 11th, he took plaintiff in the wagon to within a short distance of the pole where he was hurt, and saw him go to the pole, and in about five or ten minutes thereafter saw him coming toward the wagon where Beale was, and Beale said to him, “What are you after?” or something, and he said, “I am after my gloves, rubber gloves; that stuff is hot” (or something) “up there.” Fox further testified that he saw plaintiff drop his gloves, and Beale said to him, as nearly as he could recollect, “Look out, Rooney, that’s hot stuff up there,” and Rooney said, “That’s all right; I’m coming down, I am through,” or something similar to that.

Andrew Jackson Hudson testified that he resided at Moline, Illinois, and was an electrician, and at the time in question was working for Westinghouse, Kerr & Co., of New York, in the yard of the Naugle Tie Co. in Chicago, and, at the time of the accident, was sitting with Beale against the wall of the railroad company, nearly opposite the pole on which plaintiff was, and that all at once he heard something drop on the ground and saw it was a pair of white rubber gloves, and he said to Beale, “Are those wires alive?” and he said, “Yes,” and witness said, “Why has he thrown his' gloves down?” and he hallooed up the pole, “Look out now, they are hot,” and plaintiff said, “I am through,” or “done.” It appears from the testimony of this witness that he didn’t know Beale at the time of the conversation he relates; that he just happened along there on his way to the tie yard, and sat down by Beale and said, “How are you?” and Beale said, “How are you?” His cross-examination illustrates that he has a very eccentric memory, to say the least. He testified that he had been living with his sister about three weeks at the time of the accident, on Wells street, in Chicago, he thinks, and close to the Chicago & Northwestern depot, he thinks. He could not tell whether his sister lived one block, six blocks or twenty blocks from the depot. Asked what his sister’s name was, he said, “Taylor, I think.” Asked her husband’s name, he said, “Taylor, I think.” Asked how many days he worked at the tie yard, he answered, “I couldn’t say.”

The pole on which plaintiff had been working, and on which he was at the time of the accident, was in an alley west of Elston avenue, a street which lies northwesterly and southeasterly, and north of Armitage avenue. The pole was on the easterly side of the alley, and on the opposite or westerly side of the alley is the railroad wall, against which Beale and Hudson testified they were sitting when the accident occurred. There are houses on the easterly side of the alley. Ida Benn testified that in June, 1902, she lived on the west side of Elston avenue, and her kitchen window was in the back of the house toward the alley where the pole was, and that from the window, at which she was standing, she could see the plaintiff on the pole and his helper at the foot of the pole, and the retaining wall of the railroad and anyone in the alley, and that, at the time of the accident, which she says she saw, there was no one sitting by the retaining wall and no one in the alley except plaintiff’s helper, who was at the foot of the pole. She said, on cross-examination, that she had been standing at the window, with her little boy, from about 12:30 o’clock, noticing.the men at work on the p'ole, because she had not, before that time, seen any work of that kind done.

Ida Burr testified that the back yard of her residence was next to the alley where the pole was, and that her house was the nearest one to the pole; that she was out in her back yard with her children, and saw the man climb the pole, and that her little girl came to her and said to her the man was burning, and when she looked she saw he was burning. She says when she first saw the man on the pole she saw no one in the alley. On cross-examination she said: “When the man was burning up there I saw him burning up, and there was not a person down in the alley. ’ ’

Mary McNulty testified, in substance, that she lived on the west side of Elston avenue, and didn’t see the accident, but heard the noise. She was then about half a block from the pole, and she went onto her back porch, where she could see clearly, and saw a man on the pole, but no one else in the alley except a man running through it toward Elston avenue.

Emma Burr, daughter of Ida Burr, testified of telling her mother a man was burning, and says she saw no one in the alley.

The purpose of putting up new poles and stringing new wires is thus stated by Beale, the reference being to June 10th: “We drove over to Elston avenue that morning somewhere. We went over there to set four or five poles, to put in what is called a hurry-up call. We put that work in; it was just common, every-day setting poles. We had come down Armitage avenue to Ashland. We were going to put some new wires in, to connect to some old wires. The old wires were furnishing power and electricity to other people. We were going to put in these new wires to furnish power to the Naugle Tie Co. The Naugle Tie Co. wanted some power, some electricity, and we were there for the purpose of connecting new wires with some old wires to give them power in that yard.” That the call was a hurry-up one is further evidenced by ¡the fact that, June 11th, Beale received a telephone message from defendant’s office to finish up the job at the works.

Plaintiff testified that the supply wagon was at Ash-land and Clybourn avenues when Beale gave him the order to finish the work on the pole where he was injured, and Bagley testified the men were there when the order was given to out in the wires, which, as before stated, meant connecting the old and new wires.

In reference to the time when the connection between the old and new wires was made, Beale testified as follows:

“Q. Were any of those new wires made alive on the 10th. A. No, sir.
Q. None of those three wires ? A. No, sir.
Q. Were they all made alive at the same time? A. I couldn’t say to the minute.
Q. About the same time? A. A matter of five or ten minutes.”

Two linemen, Bagley and Nelson, connected the wires at the school-house, which is from six blocks to a mile south of where plaintiff was working. We think it evident from Beale’s testimony that he did not know just when, on June 11th, the old and new wires were connected. He testified, in substance, that he left Bagley and Nelson at the school-house to make the connection, and then proceeded north to Elston avenue, and there is no evidence that he returned to the place of connection before the accident. Defendant’s counsel say, in their argument: ‘ ‘ One of the three wires upon which Booney was working when injured had been cut in and made a live wire two or three days before Booney went to Work on the pole on the 10th and 11th.” No reference is made to any evidence in support of this statement, for the reason, doubtless, that there is not a particle of evidence to support it. On the contrary, it is directly contradictory of the testimony of defendant’s foreman, Beale, that the three wires were made alive in the afternoon of the eleventh and substantially at the same time.

Bagley, on cross-examination, testified that Nelson told him that one of the three wires had been connected up before. This was, of course, hearsay evidence, and was not true, as shown by Bagley’s examination in chief, which is: “There at the school-house I cut in three wires; three on the east side of the pole. They were the same wires I worked on on the first pole, and the same wires were run over to the pole where Rooney was hurt. When I first went up the pole at the schoolhouse I found all three of the wires on the cross-arm hanging loose.” In the abstract, a quotation of questions to and answers of plaintiff concludes with this question and answer:

“The Court: You knew they were not dead? A. I knew they were not dead. ’ ’

Plaintiff seems to have been confused by the cross-examination, as the next questions and answers, which are omitted from-defendant’s abstract, are:

“Mr. Gray: You knew they were not? A. What do you say? I knew they were not dead?
Q. That is what you say? A. I Imew they were dead. I was told they were dead. ’ ’

There is no evidence that Bagley and Nelson, who were directed by the foreman to connect the old and new wires, and who went to the school-house for that purpose, had completed the connection when plaintiff ascended the pole to finish his work there. When the connection was made there was an electrical ^current of 4,500 volts passing through the wires where he was working. The crucial questions for the jury to decide were whether the current of electricity was turned onto the new wires before or after the plaintiff commenced work in the afternoon of June 11th, and if after that time, whether he knew of its having been turned on; and, in view of the conflict in the evidence, the decision of these questions depended on the credibility of the witnesses on the opposing sides. The jury and the presiding judge saw the witnesses and heard them testify, and observed their manner of testifying, and therefore had a much better opportunity of judging of the credibility of the testimóny of the differing witnesses than we, who are confined to the mere record. The jury found that the testimony of witnesses for the plaintiff was the more credible, and the presiding judge, in overruling defendant’s motion for a new trial, approved the finding. We cannot say that the verdict is contrary to the evidence. On the contrary, after very carefully reading and considering the evidence, we concur in the finding of the jury.

The plaintiff was thoroughly competent and had long experience in his occupation. That he was careful is evidenced by the fact that, when he felt that a wire was affected by induction, he descended from the pole and procured rubber gloves, although the handling a wire so affected was not dangerous, but merely disagreeable to him in doing his work. In the afternoon of June- 10th, when Beale called him from the pole in question to other work, he told Beale that he wanted to finish the work there before the transmission wires were put in. The plaintiff, from long experience, was thoroughly acquainted with the danger of handling live wires; yet the jury were asked by defendant to believe that he, knowing that the wires were charged with electricity, and having been cautioned, as defendant claims, a minute or two before the accident, deliberately handled them without rubber gloves, thus risking death. For instance: Beale testified that plaintiff said, just before the accident, that he knew it was hot, and the next thing he saw plaintiff was burning up. Hudson testified that after plaintiff threw down his rubber gloves, and after Beale hallooed to him, “Look out now, them are hot, ’ ’ plaintiff reached over and wrapped a piece of tape aronnd the outside wire, by grasping his hand round the wire, to heat the tape and make it stick. Evidently the jury did not credit this and other similar evidence. We are inclined to think the fact to be that, in the hurry-up work,which was being done, Beale forgot to inform the plaintiff that the current had been turned onto the wires, and without such information the plaintiff, who was from six blocks to a mile distant from where the old and new wires were connected, could not know that fact.

4. Counsel for defendant say that, if plaintiff Seeks to recover because of the failure of defendant to warn him of the intention to turn on the current, that is a charge of negligence distinct from that averred in the declaration, in the first count. The answer to this is twofold. The negligence averred in that count is the providing an unsafe and dangerous place in which to work.

The duty of the master to exercise reasonable care to furnish the servant a reasonably safe place in which to work is not limited to the time when the servant commences work, but is continuous, and if while the servant is working at the place furnished by the master, it is, by reason of the master’s negligence, made unsafe and dangerous, without the servant’s knowledge, and the servant is thereby injured, while exercising ordinary care, the master is liable. C. & A. R. R. Co. v. Eaton, 194 Ill. 441.

No variance of the evidence from the declaration was pointed out on the trial, nor was it objected that there was any such variance. Therefore, variance, if any, cannot be relied on here. Alton Ry. Gas & Elec. Co. v. Webb, 219 Ill. 563. Other cases to the same effect are numerous.

5. Counsel for defendant contend that plaintiff assumed the risk of being injured as he was. The court, by instructions given at defendant’s request, submitted to the jury the question whether plaintiff assumed the risk, and the jury found, properly as we think, that he did not.

6. This contention is that the court erred in permitting the plaintiff and other witnesses to testify as to custom.

Plaintiff having testified that he knew, at the time of the accident, the custom of defendant as to when the electric current was turned onto the wires, was asked, “What is it?” and answered: “The cutting in is the last thing done at all times; and it is not only by the Commonwealth, but it is universal all over the country.” The words “it is universal all over the country” were stricken from the answer on defendant’s motion. We think the evidence competent. It tended to prove negligence on defendant’s part, in departing from the usual course, which was known to plaintiff, and, therefore, might be relied on by him. St. L. Nat. Stock Yards v. Godfrey, 198 Ill. 289, 294; N. C. St. R. R. Co. v. Irvin, 202 ib. 345, 347; Chicago C’y Ry. Co. v. Lowitz, 218 ib. 24; Zentner v. Oshkosh Gas Light Co., 126 Wis. 196.

In the last case the court say: “As to the question of contributory negligence, the evidence shows that the deceased at the time of his death was engaged in the work at which he had been set by the superintendent of the defendant, and there is no evidence showing conclusively that he had not prosecuted that work with reasonable and ordinary dispatch and in the ordinary manner. He had the right to assume that the defendant’s officer would conduct the business in the manner usual when repairs were being made, which, according to the evidence, required the cutting off of the current from the wires. It is not shown that he had any notice of intended departure from that custom. Such a departure involved an unusual and extraordinary risk, which, under the law, he did not assume, unless he had actual knowledge thereof, or unless, as a reasonably careful man, he, by the exercise of ordinary care, should have known of it.”

Similar testimony was given by other witnesses, and to the testimony of one of them, defendant’s witness Hughes, no objection was made. Even if the evidence were inadmissible, we cannot perceive how it could prejudice the defendant, because it seems the necessary course, in construction work, to complete the work before turning on the current.

7. It is contended that instructions 1 and 3, given at plaintiff’s request, are erroneous. It is sufficient to say of instruction 1, that an instruction precisely identical with it was approved in Libby, McNeill & Libby v. Scherman, 146 Ill. 540, 553. We find no error in the instruction. Instruction 3 is as follows:

The jury are instructed that if, after fairly and impartially considering the testimony of all the witnesses in this case and the evidence and facts and circumstances in evidence before you in this case, you believe that the plaintiff at the time of, and prior to, the accident in question, exercised that degree of care for his own safety that an ordinarily prudent person would have exercised under the same circumstances and conditions, as shown by the evidence in this case, then you are instructed that you should find that the plaintiff was at and before the accident in question in the exercise of ordinary care for his own safety.”

The objection made to this instruction is that it defines what constitutes ordinary care, and then directs the jury to find that the plaintiff exercised ordinary care. The instruction informs the jury that if they find from the evidence ‘ ‘ that the plaintiff, at the time of, and prior to, the accident in question, exercised that degree of care for his own safety that an ordinarily prudent person would have exercised under the same circumstances,” they should find that he exercised ordinary care. In other words, the jury were informed that if they believed from-the evidence that the plaintiff exercised ordinary care, as correctly defined in the instruction, they should so find. A similar instruction was held correct in Chicago Union Trac. Co. v. Chugren, 110 Ill. App. 545, and also on appeal to the Supreme Court, 209 Ill. 414, 430-31. We do not think instruction 3 even obnoxious to criticism.

8. Lastly, it is contended that the damages are excessive.

The position of the plaintiff when the accident happened, when he was “caught,” to use the language of witnesses, is described by the witnesses in substantially the same way. Beale testified that the last thing he saw of him he was leaning over the wire and burning. Fox testified that he seemed to be lying across the wires. Hudson’s testimony has been stated. IdaBenn, plaintiff’s witness, testified: “The first thing I noticed about the accident, I saw when his head flew up in the air and he started to balance over the wire; he hung over with his arms and commenced to burn. After the accident the current was turned off by cutting the wires, and some of the men ascended the pole and let plaintiff down by a rope, and. when he was about half way down the rope broke and he fell to the ground.” He was then taken to the Alexian Brothers’ hospital, where he remained ten or eleven months, and then went to St. Elizabeth’s hospital, where he was about two months. Dr. Stephen W. Cox testified that he had made four or five examinations of the plaintiff, the first about a year before the trial and the last the day he testified. He described his condition as follows:

“Beginning with the head, there is a scar across the forehead perpendicular in direction; it runs from the hair line down across the forehead onto the nose; there is another scar on the bridge of the nose reaching from one side of the nose to the other; it involves the whole arch of the nose. The scar on the forehead is narrower up and down, but widens at the upper part. It involves more of the surface near the hair than it does near the eyebrow. On each side of this scar the skin has a reddened or pimpled appearance covering the front part of the forehead. The skin adjoining it on the face is tender looking. Coming to the body, there is a scar running on the left side reaching from near the top of the breast bone around the body underneath the arm and covering most of the shoulder blade at the back. It measures from top to bottom on his back about nine and one-half inches, and from the bottom around under the arm to the point on the back about eleven inches. That scar involves the muscle that pulls the arm forward, called breast muscles. The muscle itself has been destroyed; that is, one of the two muscles in the chest has been partially destroyed; the scar tissue involves the whole of the arm pit. In place of the arm. pit is a ridge of skin that holds the arm down so that the arm cannot be moved quite to a horizontal position without tearing the skin. The shoulder joint is not involved in the bone, but it is somewhat stiffened. The elbow at the top has been broken off and the tissues destroyed, and a part of the bone gone. The left arm, around the big muscle of the arm, is marked also by a scar. The muscle itself, the large muscle, being almost destroyed. It measures only six inches around that arm, while around the right arm it measures twelve inches. The left arm is just half as large in circumference as the right arm. There are scars underneath the left arm also. There are some scars on the forearm and some on the leg which were not burned. They were places where the skin was taken off for skin grafting purposes. The left elbow is almost entirely stiffened, not quite solid, but almost; the left wrist joint is entirely stiffened. Three fingers are missing entirely off the left hand; the thumb is crooked, and is held in its place by a stiffened joint; the little finger is the same as the thumb; they are both useless. The palm of the hand is intact, never having been burned. On the front part of the wrist- there are small scabs present now. Under the scabs are holes reaching into the bone. There is a scar on his arm that does not look like a burn, but looks like the arm had been operated on. It is in the shape of a ridge and is very much puckered. There are spots on his thighs and a scar on his left foot just in front of the heel in the hollow of the foot about the size of a silver dime. There is another spot on the right shoulder blade that looks like a burn. It is circular and in appearance red. That constitutes about all of my examination that I remember now. ’ ’ Witness further testified that he thought plaintiff’s mental condition impaired.

The testimony of _Drs. Patillo and Beard, eye specialists, is in substance that plaintiff’s left eye is blind and the vision of his right eye about one-tenth of normal. Plaintiff testified that he suffered four or five operations of skin grafting.- Also, that before the accident his eyesight was good and he did not wear glasses, and that since the accident his left eye is entirely blind, and with the right one, if the sidewalk is right and the day clear, he can get along pretty well. He says that since the accident he has not done work of any kind. Defendant introduced no evidence in regard to plaintiff’s injuries, doubtless because medical witnesses could not be found to minimize them. That plaintiff was physically and mentally capable prior to the accident is sufficiently evidenced by the fact that up to the time of the accident he performed, to the satisfaction of the defendant, the duties of a lineman. The trial of the cause, so far as appears from the record, was fair and impartial. The contrary is not claimed, and in view of the evidence of the condition to which the plaintiff has been reduced by the accident, we do not think it can be reasonably said that the sum assessed as damages is any evidence that the jury were moved by passion, prejudice, partiality or undue sympathy. In short, we find no sound reason for holding the damages excessive.

The judgment will be affirmed.

Affirmed.