text:
    Liewas Ayers, Appellee, v. William Munch, Appellant.

      Damages—when improper to' submit question of punitive damages to the jury. Plaintiff contracted to purchase certain premises from defendant and was to receive the key as soon as a cash payment was made. Plaintiff placed a check for the payment in the hands of an attorney, obtained the key, but not from the defendant, placed goods in the house, and defendant never received the check took the goods to a warehouse and notified plaintiff where they were. Held, that the question of punitive damages was improperly submitted to the jury in an action for trespass.
    Appeal from the Circuit Court of DeWitt county; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed with finding of fact.
    Opinion filed March 18, 1913.
    Rehearing denied May 7, 1913.
    Stone & Gray, for appellant.
    Herrick & Herrick, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant in which the original declaration consisted only of the common counts. Afterwards an amended declaration was filed in an action of trespass, the first count of which alleged that appellant, with force and arms, took and carried away the goods and chattels of appellee, to-wit; one sofa, two rocking chairs, one stand, one sofa spread, one dish pan, two buckets, two brooms and one mop stick, and converted and disposed of the same to his own use, the second count charges that appellant with force and arms broke and entered into the dwelling house then in the possession of the plaintiff, and then and there seized and carried away certain goods, being the goods described in the first count, and converted the same to his own use. Plaintiff recovered a veidict for one hundred fifty dollars upon which the court rendered judgment.

The record in this case discloses that appellee contracted to purchase the premises in which these alleged goods were placed by him. This purchase was evidenced by a contract entered into by appellee and appellant. No cash was paid down, but it provided for the payment on or before a certain date of two hundred dollars, the balance to be paid some time later, and that upon payment of this two hundred dollars, the contract of purchase and sale was to be delivered and the purchaser to be let into possession at that time. Appellee never did pay two hundred dollars to appellant, but placed in the hands of one Elmer Stone, an attorney, a check for two hundred dollars for appellant. Appellant never received this check, never delivered his contract of sale and never gave the key or the possession of the premises to appellee, but declined to complete this sale.

After appellee deposited the check with the attorney, he then placed the alleged goods and chattels in the house, having obtained the key from some other party. Appellant went to the premises and entered the same when neither appellee nor any one representing him was present, this is the alleged trespass against the possession of appellee. Appellant removed the goods from the premises, took them to a storage house, either paid for or assumed all liability for the storage and then notified appellee where the goods were, and that they could be had by him without any charge or cost to appellee, and this is the alleged conversion of the so-called valuable goods to the use of appellant. The alleged total value of this personal property by appellee as claimed is thirty dollars. There is no proof of any damage to his possession, and he did not own the real estate.

The trial court instructed the jury not only upon the question of actual damages, but also on the question of punitive damages. . Numerous questions are raised upon the admission and rejection of evidence, but we do not consider it necessary to pass upon them.

Neither count of the declaration charges, nor does the evidence show any damage to the possession of the real estate, or that appellee sustained any actual damage by the removal of the personal property from the premises in question by appellant. The sole damage alleged is in the alleged conversion of the personal property to the use of appellant, and this evidence does not sustain the allegations of either count of this declaration. There is no element disclosed in the record in this case that would justify the submission of the question of punitive damages to the jury.

This case is not one for damages for the refusal of appellant to complete his contract of sale of the premises. The only damage that could possibly have resulted to appellee by reason of the actions complained of would have been the trouble and expense of regaining possession of his property, which he could have had for the asking.

The judgment is so clearly and manifestly against the weight of the evidence that it must be reversed; and plaintiff having sustained no actual damage, the cause will not be remanded to permit the recovery of nominal damages. The clerk will enter in the judgment of this court the finding of fact that plaintiff sustained no damage.

Judgment reversed with finding of fact.


source: Caselaw Access Project

author: Mr. Justice Philbrick

license: Public Domain

text:
    S. P. Kelley, Appellant, v. William Fielding, Appellee.

      Tender—conditions to withdrawal. In an action on contract when defendant tendered a certain amount admitted to be due and deposited it in court and a verdict was returned finding the issues for defendant and that the tender was sufficient, it is error to render judgment that plaintiff be permitted to withdraw the amount tendered upon payment of thé' costs since the court has no right to require the payment of costs as a condition to withdrawing the tender.

      Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Habéis, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded with directions.
    Opinion filed March 18, 1913.
    Rehearing denied April 16, 1913.
    C. E. Beach, for appellant.
    Cloud & Thompson, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action by appellant against appellee to recover upon an alleged contract claimed to have been entered into by appellant with appellee to do the threshing for appellee during the season of 1910. Appellant went to the farm of appellee and threshed for him oats to the amount of $30.87, as claimed by appellee and $30.93 as claimed by appellant. These oats were threshed early in the season. After appellant had threshed grain for a number of other farmers who were designated as within the “ring” which appellant had agreed to thresh for, appellant moved to appellee’s place for the purpose of finishing his threshing. Appellee refused to permit him to do so, and gave as his reason that the machine was not doing good work, was throwing too many oats in the straw, and would not clean the oats.

Appellant did not do any more threshing for appellee under his contract, appellee procured another machine and threshed from his field about 6,300 bushels of oats. The contract price which appellant was to receive from appellee for his threshing was one and one-half cents per bushel. Appellant sued appellee not only for the work done, but also for the work that was not done, claiming as damages the contract price for the oats threshed, as well as the contract price of the oats that were not threshed. The cause was originally commenced before a justice of the peace. Appellee did not appear.

At the time appellant appeared to do the balance of the threshing for appellee and when appellee refused to permit him to do so, appellee then asked appellant what was due for the threshing that had been done.

Appellee insists that appellant informed him $30.87. Appellee then offered to pay this amount and made a tender thereof to appellant, which appellant refused to accept, contending'that it was not for a sufficient amount, but the amount contended for was the contract for the threshing that had not been done, and not because it was not sufficient to pay for that that was already done. No claim was made that the tender was not enough to pay for the work done. As soon as the cause of action was commenced before the justice of the peace, and before summons was served, appellee again tendered and deposited with the justice of the peace $30.87, thereby admitting that this amount was due appellant.

Upon the trial in the circuit court appellant offered evidence showing the amount of grain threshed and claimed the amount due therefor was $30.93. Aside from this evidence, the only evidence offered was the contract to do all the threshing for appellee, that he refused to permit appellant to do the work, and that he obtained some other threshing machine, and that the amount of grain threshed in addition to what appellant threshed was 6,300 bushels. Plaintiff then rested.. No proof was offered which even if appellee wrongfully refused to permit appellant to finish threshing, could form any basis for a recovery for breach of his contract, as the amount of damages for such action by appellee would have been the contract price less the reasonable expense of doing the work; no attempt was made to show this, and no proper element of damages was offered by appellant to recover for a breach of the contract by appellee in refusing to permit appellant to finish his threshing.

Numerous questions are raised upon the introduction of evidence in this case, and some upon the question of the instructions of the court regarding tender and the measure of damages, but we do not consider it necessary to pass upon these questions at this time for the reason that this judgment must be reversed for other reasons, and a new trial had.

The jury returned a verdict in this case finding the issues for the defendant, and that the tender was sufficient. Monroe v. Chaldeck, 78 Ill. 429. Thereupon it was the duty of the court to. have rendered a judgment that the plaintiff have leave to withdraw the tender of $30.87, and against him for costs; but instead of so doing, the judgment rendered by the court is that the plaintiff be permitted to withdraw the tender upon payment of the costs. The court had no right to require plaintiff to pay the costs as a condition to withdrawing the amount of the tender, he was entitled to withdraw the $30.87 without condition. The judgment is erroneous in requiring him to pay the costs as a condition to receiving the tender.

By reason of the judgment being contrary to the law, it must be reversed and the cause remanded with directions to render judgment in accordance with the views herein expressed.

Reversed and remoulded with directions.


text:
    Prudence L. Gough, Appellee, v. Illinois Central Traction Company, Appellant.

      Evidence—instructions as to preponderance of. An instruction is not objectionable on the ground that it permits the1 jury to determine the preponderance of the evidence without reference to the number of witnesses testifying where it informs the jury that the preponderance of the evidence is not alone determined by the number of witnesses but that other matters enumerated should be taken into consideration.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.

      Graham & Graham and H. C. Dillon, for appellant; George W. Burton, of counsel.
    T. J. Condon and Albert Salzenstein, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Plaintiff, a woman of seventy-two years, became a passenger on defendant’s interurban railroad from Springfield to Mechanicsburg on August 9, 1910. At Mechanicsburg Junction, appellee was required to change from the car leaving Springfield; from Mechanicsburg Junction to Mechanicsburg one man operated the car and acted both as conductor and motorman. Appellee contends that when she took the car at Mechanicsburg Junction, she informed the man in charge of the car that she desired to get off in Mechanicsburg at a crossing known as Hall’s Crossing, that the car did not stop at Hall’s Crossing, but did stop at the next succeeding crossing, and that at this place appellee attempted to alight from the car, and while in the act of so doing the car was started, whereby she was caused to fall' and received the injuries complained of. Upon the trial below she recovered a judgment for $2,000, from which appellant appeals.

The negligence charged in the declaration is that appellant stopped its car at this crossing, but not for a sufficient length of time to permit appellee to alight, and that while attempting to alight therefrom, the car was started with a • sudden jerk, whereby she was thrown to the ground and injured; also that it was negligence on the part of appellant to have provided but one man for the management and operation of this car. o

It is the province of the jury to determine questions of fact under evidence properly admitted by the court and under proper instructions given by the court. The evidence in this record is very conflicting both as to whether appellee notified the conductor of her desire to alight at Hall’s Crossing and also as to whether or not the car stopped at the next succeeding crossing. The motorman in charge of the car denies that appellee informed him that she wanted to get off at Hall’s Crossing in Mechanicsburg; also denies that the car stopped at the next crossing after passing Hall’s Crossing, but insists that the car slowed up for the purpose of permitting a passenger to get off from the front end of the car; and insists that appellee jumped from the car while it was in motion and if she was injured it was by reason of her attempting to get off from the moving car without notice to the conductor or motorman. The question as to whether appellee informed the man in charge of the car of her desire to alight at Hall’s Crossing, and whether or not the car stopped at the next crossing or whether it stopped a reasonable length of time to permit appellee to alight, and whether it was negligence to have this car operated and managed by but one man were purely questions of fact for the jury. The jury has found all these questions against appellant, and unless this verdict is clearly and manifestly against the weight of the evidence, then upon the questions of fact the verdict should not be disturbed. From a careful examination of the record, we are satisfied that the jury was warranted in finding the issues for appellee.

It is contended by appellant that the court erred in giving instruction No. 6 on behalf of appellee. This instruction related to the determination of the preponderance of evidence by the jury, and the error insisted upon is that the jury were permitted to determine upon which side the preponderance of the evidence was without reference to or considering the number of witnesses testifying. This instruction does not so inform the jury, but informs them that it is not alone determined by the number of witnesses, but that they must take into consideration other matters enumerated in the instruction. This is not tantamount to telling them that it is not necessary to consider the number of witnesses in determining where the preponderance is.

This instruction has been held not to be reversible error in Chenoweth v. Burr, 242 Ill. 313; Deering v. Barzak, 227 Ill. 71; Chicago Union Traction Co. v. Yarus, 221 Ill. 643; Lyons v. Ryerson & Son, 242 Ill. 417, and only in the case of Elgin, J. & E. R. Co. v. Lawlor, 229 Ill. 630, is it suggested that under certain conditions of the evidence, it might be held to be error. From a careful examination of the record in this case, we are satisfied there is no reversible error in the record. The judgment is, therefore, affirmed.

Affirmed.


author: Me. Justice Philbbick

text:
    W. J. Elzy et al. for use of The Farmers’ Bank of Gays, Appellant, v. Fred Morrison, Appellee.
    1. Garnishment—equitable proceedings. A garnishment proceeding is an equitable proceeding and the court has equitable powers.
    2. Banks—right to retain money on deposit. A bank cannot withhold payment of a fund on deposit or refuse payment of a check on the ground that it holds a note which will mature at some future date for the payment of which it seeks to hold the deposit.
    3. Banks—where deposit is garnished. A bank cannot retain money on deposit to the credit of a judgment debtor, in answer to a garnishee summons, to be applied on a note not due, executed by the judgment debtor, which it holds.
    4. Mortgages'—where mortgagee consents to sale. Where one who holds a second mortgage on certain cattle consents to have the mortgagor sell them and deposit the money in his own name, he thereby releases his lien.
    5. Interpleader—where mortgagee does not file. Where a mortgagor sells cattle which are subject to two mortgages and deposits the money in a bank which is garnisheed by a judgment creditor, the second mortgagee who files no interpleader, is not entitled to claim the fund.

      6. Mortgages—fraudulent sale of mortgaged property. Where there is a fraudulent sale of mortgaged property, the mortgagee is entitled to recover the fund where it can he followed.
    7. Garnishment—where mortgagee files interpleader. Where a mortgagor sells mortgaged cattle without the consent or knowledge of the mortgagee, and deposits the money in a bank which is garnished by a judgment creditor of the mortgagor, and the mortgagee files an interpleader claiming the amount of the deposit, a demurrer to the interpleader is erroneously overruled, when the mortgagee is not entitled to the whole deposit but only to a balance due on the note, and plaintiff is entitled to have the excess applied on its judgment.
    8. Garnishment—on joint judgment. Where a judgment on a note is against the maker and his wife, who is only surety, the judgment creditor may garnishee a fund deposited in a hank in the name of the husband.
    Appeal from the Circuit Court of Coles county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed March 18, 1913.
    Vause & Hughes, for appellant.
    Chapee & Chew, for appellee.
   Me. Justice Philbbick

delivered the opinion of the court. ’

On October 15, 1910, W. J. Elzy bought from Fred Morrison, 61 head of steers for $2,767.84, for which he gave a note bearing seven per cent, interest, payable July 1,1911. To secure the payment of this note, Elzy made and executed a chattel mortgage upon these cattle, this mortgage was properly acknowledged and recorded.

On May 22,1911, Elzy made and executed a promissory note to J. E. Dazey for $1,593.90, due sixty days after date, and drawing seven per cent, interest. This note was also secured by a mortgage on the same cattle, Dazy’s mortgage reciting that it was subject to the mortgage to Morrison. It is argued by counsel in this court that the note given to J. E. Dazey was the property of the First National Bank of of Findlay, of which he was president, and that the bank has the right to hold the amount on deposit in Elzy’s name and apply it on this note, but the record does not show either an assignment or delivery of the note by Dazey to the First National Bank of Findlay.

On or about June 6,1911, while the notes secured by these mortgages were unpaid and the mortgages unreleased, Elzy, with the knowledge and consent of Dazey, but unknown to Morrison,' so far as the record discloses, shipped the cattle to Chicago and disposed of them. It is claimed there were four or five cows shipped with the lot which were not included in the mortgage, but the record does not disclose any value or price received for these cows and the returns from the shipment was a gross sum which amounted to $3,557.65. The money received from the sale of these cattle was deposited in the Fort Dearborn National Bank of Chicago to the credit of W. J. Elzy, and was from there transferred to the First National Bank of Findlay, Illinois, and placed to his credit.

In April, 1911, the Farmers’ Bank of Grays recovered a judgment against W. J. Elzy and Bose Elzy, his wife, for the sum of $522.21. On this judgment execution was issued and returned nulla tona. On the 10th of June, the Farmers’ Bank of Grays caused an affidavit to be filed in the circuit court of Coles county, where its judgment was recovered; the affidavit set forth that affiant had reason to believe that the First National Bank of Findlay was indebted to the Elzys, and asked that the bank be summoned as garnishee. The summons was returned properly served, and the Bank answered admitting that W. J. Elzy at the time of the service of the summons had on deposit in his own name in the bank $522.21, being the exact amount of the judgment recovered by the Farmers’ Bank of Grays, but that one Fred Morrison claimed to be the owner of said money, and claiming the right to appropriate to its own use said sum upon the payment of a note of date February 1, 1911, due one year after date, executed to the bank by W. J. Elzy and Bose Elzy in the amount of $904.20, being the amount claimed to be due upon said note, and that when applied upon said note there will be nothing due from said First National Bank of Findlay to W. J. Elzy.

Fred Morrison filed an interpleader, claiming that the money in the First National Bank of Findlay belonged to him and not to Elzy. This interpleader set forth the purchase of the cattle by Elzy from Morrison, the execution of the mortgage by Elzy to Morrison, and that while the mortgage was still a subsisting lien the property was sold by Elzy without the knowledge or consent of Morrison for $3,557.65, and that this was the amount of money in the First National Bank' of Findlay when it was served as garnishee; that said property was the property of Fred Morrison and not of Elzy; this interpleader set forth that the mortgage and note held by Morrison amounted to $2,767.85.

A demurrer was interposed to the interpleader of Fred Morrison by the Farmers’ Bank of Gays, and the answer of the First National Bank of Findlay was traversed by the Farmers’ Bank of Gays. The demurrer to the interpleader was overruled and the cause was determined upon the demurrer, the Bank of Gays electing to stand by itsc demurrer. The judgment of the court was that Fred Morrison was the owner of the money on deposit in the First National Bank of Find-lay, that the same was not the property of Elzy. Tbe court gave judgment for costs in favor of the First National Bank of Findlay and Fred Morrison against the Farmers’ Bank of Gays. The Farmers’ Bank of Gays brings the record to this court by appeal.

Appellant insists that the trial court erred in holding that the money on deposit in the First National Bank of Findlay was the property of Fred Morrison. Upon the interpleader by Morrison the question raised is where a valid and subsisting mortgage is a lien upon personal property and the personal property is sold by the mortgagor and disposed of before the mortgage debt is due, for cash, and the cash deposited in the bank to the credit of the mortgagor, whether or not the mortgagee can follow the fund derived from the sale of this property instead of being required to follow the mortgaged property, and whether or not he can at law in an interpleader as against a garnishment proceeding recover the proceeds of such sale.

Paragraph 24, chapter 62, R. S. on “Garnishment,” provides that the court shall have equitable powers in a garnishment proceeding. A garnishment proceeding is, therefore, under the statute, an equitable proceeding. One question involved in this case is whether or not the First National Bank of Findlay had in its possession at the time of the service of the garnishment summons any funds, cash or property of any kind belonging to W. J. Elzy, who was the principal judgment debtor to the Farmers’ Bank of Gays, the record disclosing that Rose Elzy, his wife, was merely surety on the note, as set forth by the replication filed to the answer of the First National Bank. The answer by the First National Bank of Findlay admits that it holds in its possession $522.21, being the property of W. J. Elzy, and the reasons it assigns why this fund should not be paid upon the judgment against W. J. Elzy is first, that the bank holds a note against W. J. Elzy for $904.20, but this note was not due; and second, that the fund is claimed by Fred Morrison. The fact that Fred Morrison claims the fund would be no defense to the garnishment proceeding so far as the First National Bank is concerned, and the only real defense attempted to be set up by it is that it owns a note for $904.20 which is not then due. Upon this question, the Supreme Court has fully determined in numerous cases that a bank cannot withhold payment of a fund on deposit with it or refuse payment of a check drawn upon a fund deposited with it by the depositor on the ground that it holds a note which will mature at some future date, and for the payment of which it seeks to hold the deposit. As a garnishee summons, is the same as a demand upon the bank for payment, if the depositor would be entitled to a check upon that account, it follows that a bank cannot retain money on deposit to the credit of a judgment debtor in answer to a garnishee summons to be applied on a note not due which it holds executed by the judgment debtor. A judgment creditor of the depositor would be entitled to have it paid in a garnishment proceeding. Commercial Nat. Bank v. Proctor, 98 Ill. 558; Fourth Nat. Bank v. City Nat. Bank, 68 Ill. 401; Fort Dearborn Nat. Bank v Blumenzweig, 46 Ill. App. 297; Merchants Nat. Bank v Ritzinger, 20 Ill. App. 27.

The contention of E. J. Dazey that he held a note executed by Elzy which was secured by a mortgage upon the cattle, from which the fund in the First National Bank of Findlay was derived, is disposed of by the fact that he has filed no interpleader claiming this fond or any right thereto. He is also debarred from claiming this fund by reason of the fact that he went with Elzy and was present and consented to the shipment and sale of this stock by Elzy, without any agreement, so far as the record discloses, that the fund derived from the sale of the stock should be applied upon his debt, and even if he had made such an agreement the fund was primarily liable for the payment of the debt due Fréd Morrison, Dazey’s mortgage reciting that it was subject to that mortgage, and by consenting to this sale and permitting Elzy to deposit the fund in his own name thereby released any lien that he held as a second mortgagee upon this property. Fairweather v. Nelson, 76 Ill. 506.

There is no answer and there is no interpleader claiming the note made by Elzy to Dazey was owned by any other person than Dazey, although he was president of the First National Bank of Findlay.

The mortgage to Morrison upon this stock was a subsisting lien and the stock was sold by Elzy without tiie consent of Fred Morrison, Morrison was entitled to be paid the amount due him from Elzy. While the mortgage lien was upon the property, upon a fraudulent sale of the property, if the property could be regained or identified, the mortgagee would have a right to proceed against the property, but he is not limited to this remedy, he would also have a right to proceed against any person assisting or aiding in the conversion of this property into money, and in equity if the fund can be identified to follow the fund. To hold that he could not follow the fund where the same was capable of being followed and ascertained, would be to permit the fraudulent act of the mortgagor to destroy the lien and perhaps defeat a recovery by the mortgagee, and we are satisfied that the general rule in equity is that where a fund can be followed and recovered the mortgagee is entitled to do so. Harlan v. Ash, 84 Iowa 38.

We are -of the opinion that the interpleader filed by Morrison was good to the extent of the amount due him from Elzy upon his note, but that for any excess of that amount the Farmers’ Bank of Gays was entitled to a judgment against the First National Bank of Find-lay, and that the court erred in overruling the demurrer of the Farmers’ Bank of Gays to the interpleader of Fred Morrison. It follows, therefore, that the court erred in rendering judgment for costs against the Farmers’ Bank of Gays.

It is contended by appellee that this garnishment proceeding is an action by the judgment debtors, J. W. Elzy and Bose Elzy, against the First National Bank of Findlay for the use of the Farmers’ Bank of Gays, and that no recovery can be had if the First National Bank of Findlay is indebted to only W. J. Elzy.

While it is a general principle and rule of law that where a firm or two persons are judgment debtors that in a garnishment proceeding the creditor of only one of the judgment debtors cannot be garnished, the record in this case discloses that W. J. Elzy was the debtor and that Bose Elzy, his wife, was merely surety upon the note for him, and that while the judgment is against both and may be collected from either, the debt is primarily that of W. J. Elzy.

% For the reasons above set forth, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    S. M. Pollock, Plaintiff in Error, v. Vespasian Warner, Executor, Defendant in Error.
    1. Limitations—part payments. In an action by an executor on a note given by defendant to testator, held, that there was a sufficient showing of a payment to allow the note with indorsements of payments to be introduced and prima facie to remove the statute of limitations.
    2. Set-off—where action is dismissed as to one of defendants. Where an action by an executor on a note is' dismissed as to one of the defendants, credits claimed by the other defendant for labor and expenses are the proper, subject of set-off.
    3. Set-off—propositions of law. In an action by an executor on a note, a proposition of law, asking the court to hold that defendant, in the absence of special contract, is entitled under the general issue to offset the value of improvements erected upon the farm of testator with the consent of testator and of which he received the benefit, is improperly refused.
    4. Set-off—administration of estates. In an action by an executor on a note, a proposition of law asking the court to hold that defendant is entitled to credit for improvements made upon the farm as tenant of testator and for services performed by defendant at the request of testator is improperly refused.
    5. Set-off—joint and several demands. In an action by an executor on a note, where the action is dismissed as to one of the defendants, a proposition submitted asking the court to hold that the rule that a several demand of one defendant cannot be set-off or allowed in a joint action has no application, is improperly refused.

      Error to the Circuit Court of DeWitt county; the Hon. William G-. Cochran, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed March 18, 1913.
    E. J. Sweeney and E. B. Mitchell, for plaintiff in error.
    John Puller, for defendant in error.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by Vespasian Warner, executor- of the last will and testament of John Warner, deceased, against S. M. Pollock and John Pollock. The suit was on a promissory note dated March 2, 1897 for the principal sum of $745.50. It bears the indorsement of two partial payments, one of date June 6, 1898 for $78, and the other of date June 24, 1899 for $50. During the progress of the trial, the suit was dismissed as to John Pollock and proceeded to judgment against S. M. Pollock. The defenses presented by S. M. Pollock were payment of the note, the statute of limitations, and accord and satisfaction.

The court permitted the note together with the indorsements to be introduced in evidence over objection of defendant. The court should not have permitted this indorsement to have been admitted in evidence until proof of the payment was made; but the payment of the indorsements of June 6, 1898, having besen proven by a check of that date given to John Warner, deed, by defendant; and the defendant having testified that he claims the indorsement of the date June 24, 1899, and testified, “I claim that I am entitled to the credits endorsed on the back of the note and more too”: was a sufficient showing of the payment to allow the indorsements to be introduced in evidence and prima facie to have removed the statute of limitations.

A'. Pollock, on behalf of the defendant, testified to an itemized account for labor and expenses performed and expended by defendant for the deceased, Dr. Warner, in his lifetime, and that his labor was performed and the items of expense made by and with the consent and under the direction of Dr. Warner, deceased, and the amount of these items is equal to almost the entire amount, principal and interest, claimed to be due upon the note, when considered in connection with the payments claimed by plaintiff to have been made.

The record also discloses that on numerous occasions, Dr. Warner in his lifetime admitted in various conversations that this note was probably paid in full, or that the defendants had paid it. The court refused to allow the credits and expense items testified to by A. Pollock, and other witnesses, holding that they were not proper items of set-off in this action and holding that a separate claim of set-off, by one defendant cannot be allowed in an action against joint defendants. This holding would have been correct if the suit had not been dismissed by plaintiff as to John Pollock, but after he was dismissed out of the case it then left S. M. Pollock as sole defendant and the claim of set-off was then proper and should have been considered by the court.

Propositions of law were submitted to the trial court by the defendant. The tenth proposition related solely in the right of S. M. Pollock, sole defendant at that time, to claim as a set-off labor performed and cash paid for Dr. Warner in his lifetime; the court refused to hold this proposition as the law. The fifteenth proposition requested the court to hold that S. M. Pollock, in the absence of any special contract, was entitled under the general issue to offset the value of improvements erected upon the farm of Warner, which improvements were made with the consent of Warner and for which he received the benefit, was refused; in the seventeenth proposition, the court was asked to hold that S. M. Pollock, who was then the sole defendant, was entitled to credit for improvements made upon the farm as tenant of John Warner and for services performed by S. M. Pollock at the request of Warner; this was refused. In the eighteenth proposition submitted asked the court to hold that the rule that a several demand of one defendant cannot be set-off or allowed in a joint action has no application in this case where the sole plaintiff was the executor of the estate of John Warner, deceased, and S. M. Pollock was the sole defendant, this was refused.

The court erred in refusing to hold each of these propositions as the law applicable to this case. By reason of the error in so refusing to hold these propositions of law the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Angelo Pauloni, Appellee, v. Shoal Creek Coal Company, Appellant.
    1. Mines—where company man is injured. Where plaintiff, employed as a company man, is injured in defendant’s mine, he cannot recover under counts of a declaration alleging that he was permitted to enter the mine before all dangerous places were made safe, since the law does not require that all-dangerous places shall be made safe before a company man engaged for that purpose shall be permitted to enter under the direction of the mine manager.
    2. Evidence—as to admissions of employe of corporation. In a personal injury action, where plaintiff, a company man, is injured by an explosion in a mine, and it is alleged that an employe who opened a door leading to a room where gas had accumulated was granted permission to do so by a sub-boss, testimony of a witness that the mine manager told him after the accident that the sub-boss had authority to give directions to the miners is improperly admitted, though the mine manager was an employe and agent of defendant and his statements or admissions of this character are not binding on defendant.

      3. Mines—marks showing dangerous condition in mine. In a personal injury action, where plaintiff, a company man employed, by defendant, is injured in a mine explosion, and evidence shows that the portion of the mine wherein the accident occurred had been abandoned for several days, that a conspicuous sign was placed at the entrance to that portion showing its condition, and that the sign remained at the. place; an instruction, that under these conditions it is not necessary that the mine examiner should examine that portion of the mine every day, is improperly refused.
    Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed March 18, 1913.
    Rehearing denied April 16, 1913.
    W. B. McBride, for appellant; Miller & McDavid and Mastín & Sherlock, of counsel.
    Thomas B. Mould and John L. Dryer, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Plaintiff was injured November 11,1910, while working in appellant’s mine as a company man engaged in doing company work, cleaning up a fall so that cars might be run upon the track along the first west south entry. This work was being done under the direction of the mine manager. About ten days before this, a squeeze had occurred in this entry somewhere between the bottom and the north fifth stub. Appellee was assisting in the work of preparing this entry and removing the debris to permit cars to run along a part of this entry. This squeeze caused all the men working in that entry to be withdrawn. The entry had been driven about 1,000 feet beyond the north fifth stub. After this squeeze occurred gas was discovered by the mine examiner at the face of the entry and west of the last cross-cut about forty feet from the face.

The ventilating current passed the north fifth stub from east to west down the entry, through the last cross-cut, and then in a southerly direction. At the place where appellee was working no gas was being carried by the air current.

The declaration is based upon alleged negligence and wilful violation of the statute.

The first count alleging that appellant permitted gas to accumulate in the entry and that it was being carried by the ventilating current through the mine, and that in violation of the statute appellee was permitted to enter the mine to work in that part where the gas was being carried by the ventilating current before the condition had been made safe.

The second count charges the same condition concerning gas, and that when the gas was discovered it became appellant’s duty to place a conspicuous mark, etc., at the place where the gas existed, for the purpose of notifying' appellee of the condition, but that appellant wilfully failed and neglected to place a conspicuous mark in said entry before permitting appellee to enter.

The third count charges the same conditions as to the accumulation of gas, and that appellant wilfully failed to make an examination or cause an examination to be made of the first west entry of the mine south where appellee was required to pass to work before permitting him to enter the mine.

The fourth count alleges that the mine examiner failed to make a daily report of the condition of the existing gas, and that appellee was permitted to enter the mine by reason of the failure to make this record as required by the statute.

The fifth count charges the same conditions as the others as to the gas, alleges that appellant failed to maintain a current • of fresh air as required by the statute.

The sixth count charges an accumulation of gas, etc., and the failure of the mine examiner to mark by conspicuous marks this dangerous condition.

Appellee recovered a judgment for $7,000; appellant prosecutes this appeal.

We refrain from making any comments on the evidence or its sufficiency to sustain the verdict for the reason that the judgment must be reversed and a new trial had by reason of errors of law committed on the trial of this cause.

Appellee concedes that he was employed as a company man and entered the mine and was working under the direction of the mine manager; consequently, under the counts of the declaration alleging that he was permitted to enter the mine before all dangerous places were made safe there could be no recovery. The law does not require that all dangerous places shall be made safe before a company man engaged for this very purpose shall be permitted to enter the mine under the direction of the mine manager. If so, there could be no entrance for the purpose of making the dangerous place safe.

The mine examiner had made an examination of the condition of the mine in this entry some days previous to this accident; he had found this accumulation of gas and placed or caused to be placed a conspicuous mark at both ends of the entry, as required by the provisions of the statute, indicating its condition. That portion of the entry beyond the sixth north stub having been abandoned for several days prior to the injury to appellee, and no one had been permitted to enter that part of the entry, appellee was not injured by reason of an explosion of gas where he was at work or required to pass, but the cause of his injury was an explosion in this entry at the place where the gas had been known to accumulate, because one Romani, who had quit work at the mine when this entry was abandoned and had left his tools in the'entry, came into the mine for the purpose of obtaining his tools. In order to go to the place where his tools were, Romani opened a door leading to this entry and entered with a carbide lamp; he passed the place where the conspicuous marks indicating danger had been placed by the mine examiner; his lamp ignited the gas and the explosion followed. The conspicuous marks placed by the mine examiner warned persons of the dangerous condition of this entry, and it was not a place where men were permitted to work or expected to pass at that time. It was the force of the explosion and the flames caused by Romani igniting the gas which extended to the point where appellee was at work that caused his injury, and not the explosion of gas which had accumulated where he was required to pass or work.

The evidence is conflicting as to whether Romani was granted permission to go into this entry, the only claim by appellee that Romani was granted this permission is that one McReaken permitted him to go into this entry, that McReaken was a boss driver and was a sub-boss over all the miners on the south side; appellant denies that McReaken was a sub-boss or that he had any authority over any of the men excepting the drivers, and that he did not give Romani the permission claimed. For the purpose of establishing the fact that McReaken had such authority, the trial court permitted a witness Smith to testify over objection of appellant that on the day after the explosion occurred the mine manager stated to him that McReaken had authority to give directions to the miners and that he was a sub-boss over them. The mine manager was an employe and agent of this corporation, but no statement or admission that he might make even if the proof shows that he did make it, admitting such fact, would bind appellant. A statement of this character, although made by an agent or employe could not bind a corporation, and it was error for the trial court to admit this evidence. Sibley W. H. Co. v. Durand, 200 Ill. 354; Gould v. Aurora, E. & C. R. Co., 141 Ill. App. 345.

The record further discloses that that portion of the mine wherein this accident occurred had been abandoned for several days; that a conspicuous sign was placed at the entrance to that portion of the entry which was dangerous showing its condition; and that this mark or sign still remained at that place, and under these conditions it was not necessary that the mine examiner should examine that portion of the entry every day. Upon this question appellant asked the court to so instruct the jury by it's first refused instruction ; the court refused to give this instruction to the jury.

The instruction marked second refused, requested by appellant, should also have been given to the jury. It presented a question of fact upon the issues presented by the first count of the declaration, and to which it alone was applicable by its terms.

Appellant’s refused instruction No. 7 contained a correct rule of law applicable to this case, no other like instruction was given. It was error to refuse each of these instructions.

For the errors here indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Joe B. Lombard, Appellee, v. Nellie May Balsley and Mutual Protective League, Appellants.
    1. Insurance—policy as dollateral security. Where husband and wife execute a note payable to complainant, and the husband with the consent of his wife, the beneficiary, pledges a policy of insurance on his life as collateral security and after the death of the husband complainant files a bill against the insurance company and the wife to have a decree entered that the note be paid from the proceeds of the policy, the wife cannot raise the question that the money furnished by complainant for which the note was given did not belong to him.
    2. Insurance—where beneficiary consents to pledge. Where husband and wife execute a note and the husband pledges a policy of insurance as security with the consent of his wife, the beneficiary, the holder of the policy is entitled to collect the insurance to the extent of his interest and it is not necessary that the assignment be in writing.
    Appeal from the Circuit Court of Morgan county; the Hon. Owen • P. Thompson, Judge, presiding.
    Heard in this court at the April term, 1912.
    Decree modified and affirmed.
    Opinion filed March 18, 1913.
    H. C. 'Shuttle and Amos Miller, for appellants; John J. Reeve, of counsel.

      Kirby, Wilson & Baldwin, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

On the 15th of July, 1908, Nellie May Balsley, one of the appellants, and Jacob F. Balsley gave to appellee, J. B. Lombard, their promissory note for $1,500, due two years after date. When this note matured, there was still unpaid $1,260, and Nellie May Balsley and her husband executed a new note dated July 15, 1910, payable to. appellee for $1,100 at seven per cent, interest, and agreed within a few days to pay appellee the balance of $160. The note for $1,500 was retained by appellee and $1,100, the amount of the second note was credited upon this note. Chattel mortgages were executed to secure each of these notes at the time they were given. Under an insecurity clause contained in the chattel mortgage, appellee foreclosed the chattel mortgage on December 22, 1910, the proceeds thereof, were $227.90. On October 28, 1910, Jacob F. Balsley died. On December 13,1910, appellee took a judgment upon both notes by confession, for $1,387.13, this included $144.28 attorney’s fees. After giving credit for the amount realized from the sale of the chattel property, the balance of $1,186.08 then remained unpaid as the balance of this judgment. At the time of the execution of the first note, Jacob F. Balsley was a member of the Mutual Protective League, a fraternal insurance company organized under the laws of the state of Illinois, and held a policy therein for $3,000, his wife was named as beneficiary. As collateral security for these notes, this policy of insurance was pledged to appellee by Jacob F. Balsley with the consent of his wife, the beneficiary. No assignment was written upon the policy by either of them. After the death of Jacob F. Balsley, appellee caused notice to be served upon the insurance company and demanded that the payment upon this policy be deferred until the interests of the parties to the fund were finally settled. Appellee filed his bill setting up these facts and made Nellie May Balsley and the Mutual Protective League parties defendant. Issue was joined and the cause referred to a master. The master reported, finding that there was due to the paintiff from the defendant Nellie May Balsley $1,101.14, and recommended that a decree be entered directing that he be paid from the proceeds of the policy. His report was approved and a decree entered from which decree this appeal is prosecuted.

Appellant, the Mutual Protective League, has no direct interest in the result of this action. Nellie May Balsley insists that the decree should be reversed and urges as a cause therefor that the policy being one issued by a fraternal beneficial association organized under the laws of Illinois, that the policy or the proceeds thereof could not be pledged for an indebtedness and that the proceeds of that policy should be paid only to such beneficiary as is permitted under the statute; she also contends as a further reason that the policy never was assigned by her or with her knowledge or consent, and that it was not delivered to appellee as collateral security for this indebtedness; also that the moneys furnished by appellee to Jacob F. Balsley and for which the note was given was not money of appellee but belonged to other parties.

Upon the contention that appellee did not furnish the money, it is sufficient to say that the note is made payable to him and the entire transaction through which this money was borrowed was made with him, no other party being known therein, and it is immaterial to appellant who furnished the money, that was a matter solely between appellee and whomsoever may have furnished the money; if appellant Nellie May Balsley owes the debt and has given her note to appellee, it is immaterial to her what becomes of the money after it is received by appellee.

Upon the contention that by reason of the provisions of the statute, this policy could not be hypothecated ' to secure a debt or obligation of either the beneficiary or the member, it is conceded that this fund could not. be reached by a garnishment, execution, attachment or other legal process by any creditor in an action at law; but the Supreme Court has held on various occasions that with the consent of the beneficiary a fund to be derived by a policy may voluntarily be assigned, pledged or hypothecated for the purpose of securing a debt, and the holder of the policy will be entitled to collect it to the extent of his interest therein, and it is not necessary that this assignment should be in writing, but may be by parol. Jarvis v. Binkley, 206 Ill. 541; Ptacek v. Pisa, 231 Ill. 522; Royal Arcanum v. Tracy, 169 Ill. 123; Savage v. Gregg, 150 Ill. 161.

We are satisfied from an examination of this record that the evidence fully justifies the finding of the chancellor that the policy was so pledged, assigned and hypothecated for the security of the debt due appellee, and to the extent of this interest therein that he is entitled to have the same paid to him.

We find, however, upon examination of the record that the report of the master is erroneous and that the decree provides for the payment to appellee of more than is due him. We find that at the time the judgment was taken upon these notes there was due $1,387.13, deducting from this the amount received from the chattel mortgage, $227.90 would leave, after allowing interest on the judgment to December 22, $1,161.03. This together with interest at five per cent, from the date of the application of the property received under the chattel mortgage plus the costs of confession of the judgment, was all that appellee was entitled to recover, and this amounted to $1,161.03, upon which interest should be computed at five per cent, from December 23, 1910, and $6.85, the cost of confession. Principal and interest to the date of the filing of this opinion is $1,290.37, which sum .pins $6.85 is $1,297.22, which is the amount that appellee should have had a decree for, and the Mutual Protective League directed to pay him. The decree having been for $1,401.14 is erroneous and will be modified, and a final decree will be entered in this court that appellee is entitled to recover from the proceeds of this policy $1,297.22, and that appellant Nellie May Balsley is entitled .to recover the balance, and the same shall be paid to her by the Mutual Protective League. In all other respects the decree will be affirmed. Appellee will be required to pay all costs in this court.

Decree modified and final decree in this court.

Decree modified and affirmed.


text:
    G. B. Hemmingway Company, Defendant in Error, v. George Keagle and Lee Van Loon, Plaintiffs in Error.
    1. Damages—when clerk may assess. The court may direct the clerk to assess the damages on a hearing without a jury where the damages consist of a definite amount with interest to be added.
    2. Justices of the PEACE-^-jurisdiction on appeal. On appeal to the county court from a justice of the peace the county court has no greater rights or jurisdiction than the justice.
    3. Appeals and errors—want of jurisdiction. On appeal, where the record discloses upon its face that the trial court had no jurisdiction to render any judgment, no exception or objection is necessary to take advantage of the question of want of jurisdiction.

      4. Justices of the peace—interest ■may he added to judgment on appeal. In an action before a justice, where the amount due for which judgment is rendered is within his jurisdiction, on appeal to the county court interest which accrues after the judgment rendered by the justice may be added to the judgment, though it thereby renders the judgment in excess of the amount of which the justice has jurisdiction, but the record must disclose such facts.
    5. Appeals and errors—presumptions. Where the county court on an appeal from a justice renders judgment for an amount in excess of the amount of which the justice had jurisdiction with legal interest that might have accrued on the judgment rendered by him, the appellate court cannot presume that the excess of the judgment in the county court above the jurisdiction of the justice is for legal interest added.
    6. Judgments—jurisdiction. If the county court does not have jurisdiction of a case appealed from a justice’s court its judgment is void.
    7. Practice—when remittitur after judgment in county court on-appeal from justice does not confer jurisdiction. Where an action is brought in a justice court and an appeal is taken to the county court, which finds a certain sum to be due plaintiff and renders judgment for such sum, which is in excess of the jurisdiction of the justice, the county court is without jurisdiction and a remittitur 6f the excess does not confer jurisdiction.
    8. Practice—jurisdiction of appeal from justice. The record discloses that the county court did not have jurisdiction of a cause on appeal from a justice where the county court found a sum in excess of the justice’s jurisdiction to be due plaintiff and rendered judgment for that amount and a remittitur of the excess was filed.
    Creighton, J., dissenting. -
    Error to the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed.
    Opinion filed March 18, 1913.
    Rehearing denied April 18, 1913.
    E. L. Chapin and Thomas L. Jarrett, for plaintiffs in error.
    James H. Mathent, for defendant in error.
   Mr. Justice Philbrick

delivered the opinion of the court.

Plaintiffs brought suit in a justice court in Sangamon county against defendants, upon a former judgment recovered by plaintiffs against the defendants. The cause was heard on appeal in the court without a jury and the following record made:

“Now" on this day comes the plaintiff herein in proper person and by their attorneys and the defendants herein in proper person and by their attorneys also come, this cause being now called for trial, the issues herein being fully joined, the intervention of a jury having been waived and this cause now being heard by the Court and the Court having heard all of the evidence adduced herein and arguments of counsel thereon, and being sufficiently advised in the premises, finds the issues for the plaintiff, Thereupon the Clerk is ordered by the Court to assess damages, and the Clerk having assessed the damages herein, reports the same to the Court in the sum of $232.23. Thereupon it is ordered and directed by the Court that the plaintiff, the G. B. Hemmingway Company have and recover of the defendants, George Keagle and Lee Van Loon, the sum of $232.23, damages as aforesaid, together with its costs and charges by it herein expended, that execution issue therefor. And now on this day, March 30, 1911, one of the days of the same term, comes plaintiff herein by its attorney and on its motion it is ordered by the Court that the sum of $32.23 be and the same is remitted to said defendants out of the judgment heretofore rendered against them in this court.”

Defendants prosecute the writ of error and insist that the judgment should be reversed for the reason that it was error to direct the clerk to assess the damages and that the county court had no jurisdiction to render a judgment because the damages found to be due, and the judgment rendered is- in excess of the jurisdiction of the justice of the peace.

The record does not disclose that defendant’s attorneys who were present in court took any exception or made any objection to the order of the court directing the clerk to assess the damages. No motion for a new trial was made and no bill of exceptions is preserved.

It was not error to direct the clerk to assess the damages on a hearing before the court without a jury where the damages consist of a definite amount with interest to be added.

Upon the contention that the county court was without jurisdiction, that court had no greater rights or jurisdiction than the justice of the peace court in which the action originated.

It is insisted by plaintiff that because no exception or objection was made to any action of the trial court and preserved by bill of exceptions, that there is, therefore, nothing in this court to review. While the general rule of law as invoked by plaintiff is correct, where the trial court has jurisdiction of the parties and the subject-matter, but where the record discloses upon its face that the trial court had no jurisdiction to render any judgment, then no exception or objection is necessary to take advantage of the question of want of jurisdiction. Plaintiff also insists that although the original judgment was rendered for an amount in excess of the jurisdiction of the justice of the peace, that the fact that the justice of the peace originally rendered his judgment for an amount within his jurisdiction and because the remittitur entered by plaintiff in the county court reduced the amount that could afterwards be collected on the judgment to an amount for which the’ justice of the peace had jurisdiction, the question of jurisdiction is finally and conclusively set-tied. It will be conceded that if the amount due at the time that the justice of the peace rendered his judgment was for an amount within his jurisdiction, then on appeal to the county court, interest which accrues after the judgment rendered by the justice of the peace may be added to the judgment on appeal although it does thereby render the judgment in excess of the amount of which the justice of the peace had jurisdiction ; but where siich is the case, the record must disclose such facts; but the amount for which the county court rendered judgment is in excess of the amount for which the justice of the peace had jurisdiction with legal interest that might have accrued on the judgment rendered by him between the time of the rendition of his judgment and the hearing in the county court. Consequently, this court cannot presume that the excess of the judgment in the county court, above the jurisdiction of the justice of the peace, is for legal interest added. If the county court did not have jurisdiction its judgment is void. In determining the question of the jurisdiction it is necessary for this court to determine whether where the judgment rendered by the trial court is in excess of the jurisdiction of the justice of the peace a remittitur from that judgment of such excess will cure the error of rendering a judgment in excess of the court’s jurisdiction.

It will all be conceded that upon the trial, either before the justice of the peace or upon appeal in the county court, where it is disclosed that the amount due exceeds the jurisdiction of the justice of the peace, either before the cause has been submitted to the jury, or before the court has made any announcement of its findings, if tried by the court without the intervention of a jury, the plaintiff may disclaim all in excess of the jurisdiction of the justice of the peace and thereby reduce his claim so as to give the justice and the county court jurisdiction. But we have been cited to no authority, and we know of none, permitting plaintiff to confer jurisdiction by a remittitur after the court has determined that the amount due exceeds its jurisdiction. In People v. Skinner, 13 Ill. 287, the Supreme Court has held that where a verdict has been rendered in excess of the jurisdiction of the justice of the peace that the plaintiff cannot thereafter remit the excess and by that act confer jurisdiction upon the court. The same rule is followed in Reading v. Mead, 16 Ill App. 360.

From what has been said in these cases, we are of the opinion that when the county court found upon the assessment of damages by the clerk that the amount due plaintiff was $232.23, that as to the trial then had the county court was ousted of the jurisdiction of this cause and that the remittitur of $32.23 could not confer jurisdiction upon that court. The remittitur did not reduce the judgment, and no other judgment was ever rendered, all that the remittitur did was to credit $32.23 on the judgment and thereby reduced the amount plaintiff could collect on his judgment. Any execution issued upon this judgment by the clerk would necessarily have to recite the amount of the judgment, and credit it with the amount of the remittitur. And from what is held by the Supreme Court in 13 Ill. 287, supra, and followed by the Appellate Court of the First District, 16 Ill. App. 360, supra, we hold that the record discloses that the county court did not have jurisdiction of the cause, and that it should have been dismissed by the court upon the report of the clerk showing the damages to be $232.23. The remittitur does not comply with section 6, ch. 70, Hurd’s E. S. 1911, which requires the reduction to be made before judgment.

The cause having been submitted to the court without a jury, final judgment will be rendered in this court and the judgment of the county court reversed and the suit dismissed at plaintiff’s costs.

Reversed.

Me. Justice Creighton dissents from the views herein expressed and from the conclusion arrived at.


text:
    John Sibert, Appellee, v. Shoal Creek Coal Company, Appellant.
    1. Instructions—when must be accurate. Where the evidence is very conflicting the instructions must be accurate.
    2. Instructions—abstract. It is error to give an abstract instruction in an action for personal injuries which ignores the question of plaintiff’s duty to use reasonable care for his own safety, relates only to generalities and does not enlighten the jury in any manner on the issues involved in the ease but tends to confuse them.
    3. Master and servant—what instruction erroneous. In an action for personal injuries, it is error to give an instruction which omits the question of plaintiff’s duty to use due care and permits a recovery for the combined negligence of a fellow-servant and the master, regardless of whether the negligence of the master was the effective cause of or contributed to the injury.
    Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the April term, 1912. .
    Reversed and remanded.
    Opinion filed March 18, 1913.
    W. B. McBride, for appellant; Miller & David and Mastín & Sherlock, of counsel.
    Hill & Bullington and Lane & Cooper, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Plaintiff was in the employ of defendant, engaged in working on the surface at the tipple and along the switch tracks at defendant’s mine. At this mine, as the coal was loaded into the cars, the slack or fine coal was dropped from the screen to cars' on the track at the tipple; this coal was known as duff coal and when a car was loaded with duff coal it was the duty of the plaintiff to see that it was removed from the position where it was loaded and pushed down the track to the siding for the purpose of shipment. The track upon which these duff cars were loaded was the one nearest the tipple, another track parallel to it and seven feet from it from rail to rail was known as the wash track. On this wash track opposite the tipple was a set of scales. The cars of coal upon the wash track after having* been washed at a point about 125 feet north of the scales, were then run down to the scales to be weighed. It is the contention of plaintiff that he had been informed by his superior officers that all wash cars would be stopped on these scales to be weighed, and that it was the duty of the employees to stop these cars at the scales to be weighed, but that it was the custom of the employees, with the knowledge of the defendant, to run some of these cars over these scales without stopping them to be weighed. This wash track and the duff track ran parallel for about 100 feet and at a point about 125 feet from the tipple were united and then continued as one track.

At the time of the injury plaintiff had started a duff car from the tipple down the duff track, using a pinch bar for starting and after having started it, placed his shoulder against the car and pushed it, to keep it moving down the track. He was walking at the corner of the car next to the wash track and while so doing another car was run down the wash track across the scales without being stopped to be weighed, and at the point where these two tracks united this car, in charge of another employee, collided with the duff car which plaintiff was pushing, caught him between the two cars, he had several ribs fractured' and his collar bone broken.

After starting the car at the tipple, plaintiff did not look back along the wash track to see if any cars were approaching on that track, but kept his eyes upon the ground in front of him as he pushed the duff car. He wore a heavy cap which pulled down over his ears, thus preventing him from hearing clearly. Before he started the duff car with the pinch har, he looked back along the wash track and saw no cars thereon.

Plaintiff recovered a judgment against defendant for $1,500, from which it appeals.

The declaration, in numerous counts, charges defendant with failing to provide plaintiff with a reasonably safe place in. which to work, with the failure to provide rules for the proper guidance and conduct of the work to be performed by the servants, with a failure to enforce rules which had been made for their guidance and control, with a failure to provide safe machinery and appliances for the doing of the work, with a failure to inform ignorant and unskilled servants with the dangers connected with this work, a failure to use reasonable care not to expose plaintiff to unnecessary injury, a failure to employ reasonably competent persons for the prosecution of its business and work, and that the president negligently and carelessly directed the servant in charge of the car upon the wash track which collided with plaintiff and the duff car which he was pushing to run said wash car across the scales and down the track without having it stopped to be weighed, in violation of instructions which plaintiff had received that all cars would be stopped upon these scales.

For the reason that this judgment must be reversed and the cause remanded for another trial by reason of errors committed by the trial court in the giving and refusing of instructions, we refrain from making any comment as to what facts have been proven or have not been proven or whether the evidence is sufficient to maintain the verdict. The evidence upon questions of fact in the record is very conflicting and close, and where such is the case, the instructions to the jury must be accurate or the judgment must be reversed.

The second instruction given at the request of plaintiff is an abstract proposition of law; while it is not always error to give an abstract proposition of law, where it is applicable to the case and states the rule of law correctly, this instruction relates only to generalities and does not give the jury any directions or enlighten them in any manner upon the issues involved in this case and only tended to confuse them; this instruction also ignored the question of the duty of the plaintiff to use reasonable care and caution for his own safety.

The third instruction attempts to tell the jury the law applicable where an injury is occasioned by reason of the combined negligence of the master and a fellow-servant. It does not contain a correct statement of this principle, as it permitted a recovery for the combined negligence of a fellow-servant and the master regardless of whether or not the negligence of the master was the effective cause of or contributed in producing the injury. This instruction also omits the question of due care upon the part of the plaintiff.

Defendant’s first, second, fourth and seventh refused instructions contain correct propositions of law applicable to each count of this declaration, and they should have been given to the jury. No other instructions were given containing the law as laid down in these instructions, and they are well recognized principles applicable to this case and defendant was entitled to have the jury instructed as therein requested; it was error to refuse each of these instructions.

The questions of fact involved in this case as to whether or not the defendant had provided any rules for the guidance of its employes, and whether or not any rules as contended for were necessary for their guidance, whether any directions at all had been given plaintiff and if given him whether they were violated by the direct order of the president of the company, or whether the rules, if any were promulgated, were violated by the customary and ordinary conduct of the business, with the knowledge of the defendant, and the question as to whether or not plaintiff knew of the habitual violation of these rules and was fully cognizant thereof, and if so whether he assumed the ordinary risks of such violations by continuing in the employ of the defendant after knowledge thereof, are questions raised upon this record; and the evidence upon the questions of fact is so close and conflicting that it ‘brings the case clearly within the rule requiring that the jury must be accurately instructed.

For the errors indicated in the giving and refusal of instructions, the judgment is reversed and the cause remanded.

jReversed and remanded.


text:
    O. W. Dawson, Appellee, v. Melvin H. Davis, Appellant.

      Contracts—where verdict is not against weight of evidence. Evidence in an action the contract price of installing a heating plant and for extra work and materials, held to sustain a judgment for the contract price.
    Appeal from the Circuit Court of Macon county; the Hon. William Gr. Cochran, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.
    John W. Evans, for appellant.
    Whitley & Fitzgerald, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellee contracted with appellant to install in his residence at Decatur, Illinois, a heating plant, according to certain plans and specifications provided, for the consideration price of $340. The contract entered into required that the heating plant should be put in in compliance with these specifications, and in a skilful and workmanlike manner, and to heat the house in accordance with the requirements of the specifications. The contract provided that if any alterations were made in the instalment of the heating plant under the direction or with the consent of appellant, then that a reasonable amount for any extra work or material furnished should be paid by appellant. Alterations and deviations from the specifications were made, some admitted to be under the direction ■ of appellant, others which were made he denies were made either with his direction, knowledge or consent. Appellant also insists that the plant does not meet the requirements and specifications as required by the contract; and that these deviations or alterations consist in a change of the make of the boiler installed, insufficiency in the size of the pipes used, insufficiency of the plant to heat the house as required and also that the specifications and contract required that the plant should be put in so that there would be no knocking or hammering in the radiators, that the steam in circulating should be free from any noises. The total amount of the alterations made, extra material furnished, and extra labor performed, as claimed by appellee, amounted to $82.31. Trial below resulted in a judgment against appellant for the original price, and appellant prosecutes this appeal.

The questions involved in this case are principally questions of fact relating to the questions as to whether the pipes used in this plant are of sufficient size, whether they were properly installed and whether all of the material agreed to be furnished was furnished and installed, and whether or not appellant consented and agreed to the changes and alterations that were made. One of the principal contentions of appellant being that the plans and specifications required a boiler of the American Radiator Company, and that the one installed was one handled hy appellee not made by the American Badiator Company, but by another firm, and known as “Our Own.” The evidence upon the question as to whether appellant consented to the substitution of this boiler is conflicting, but the record does disclose that the boiler was taken to appellant’s house and placed upon his lawn, that while there he saw it and knew that it was not of the make called for by his contract, but that he made no objection to its installation or use, and did not object to the substitution of this boiler for the reason that he wanted to move into the premises as soon as possible, there is no evidence in the record that so far as capacity or quality of the boiler is concerned, the one installed is not equal to the one specified. There is a dispute as to whether some of the pipes are of sufficient size; the evidence discloses that the pipes originally put in this plant were placed within the walls of the building as required, that in order to replace them with larger ones it would be necessary to cut into the walls either from the outside or inside, that to do this would cost from $150 to $200; that if the pipes were of sufficient size and the plant of sufficient capacity and quality to perform the work required of it, then the other defects which were pointed out could be replaced or repaired at an expense of not to exceed $75.

The jury by its verdict did not allow appellee for any of the extra work or extra material furnished, but returned a verdict for $82.31 less than the amount claimed hy him. It is evident from the verdict that the jury found against appellee upon all of the material contentions upon the questions of fact, except the minor ones, from the fact that they disallowed the claim of appellee for all extra material and labor claimed by him and to offset this claim they found for appellant on the minor defects claimed by him. We are not prepared to say, upon the conflicting evidence in this record, that the verdict of the jury is clearly and manifestly against the weight of the evidence,- and under these conditions it should not be disturbed by this court.

Some criticism is made of the instructions given and refused by the trial court, but we have examined these instructions, and upon this record we are satisfied that the jury was properly and sufficiently instructed upon all the questions submitted to it, and the court committed no substantial error in giving or refusing any of the instructions offered.

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

Affirmed.


text:
    Mary A. Fritz, Administratrix, Appellee, v. Wabash Railroad Company, Appellant.
    1. Death—where an instruction disregards necessity of due care on part of intestate. In an action for the death of plaintiff’s intestate, employed by defendant as a section hand, an instruction which directs a verdict for the plaintiff for a sum not exceeding ten thousand dollars if the jury believe from the evidence that the defendant’s servants in charge of the engine neglected to ring the bell or sound the whistle, and tells them that a failure to do so was such negligence as to render defendant liable for the killing of deceased, without regard as to whether or not deceased was in the exercise of due care for his own safety, is erroneous.
    2. Death—burden of proof. In an action for the death of plaintiff’s intestate, a section hand who was struck by an engine while trying to get away from a push car, the burden of proof is on plaintiff to show that deceased was not guilty of contributory negligence in pushing a push car at a place where it was apt to come in contact with approaching coal ears.
    Appeal from the Circuit Court of Piatt county; the Hon. William G-. Cochean, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed March 18, 1913.
    Rehearing denied April 16, 1913.
    Hugh Crea and Hugh W. Housum, for appellant.
    W. Gr. Cloyd and M. E. Davidson, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Plaintiff’s intestate was killed while in the employ of the defendant as a section hand engaged in the work of repairing the track at Bement, Illinois. This action is brought for his wrongful death, and a judgment for $3,500 was recovered, from which defendant appeals.

The declaration in this case charges that the death was caused by reason of the negligence of the defendant in failing to furnish and provide the deceased with a reasonably safe place to work and with reasonably safe appliances with which to perform his work; also by reason of the negligence of servants of the defendant not fellow-servants of the deceased; also, the failure of defendant, by the said servants, to give reasonable and due notice of the approach of defendant’s trains, engines or cars to the place where the deceased was killed.

Defendant has three lines of railroad at Bement; one line, extending from Bement to Altamont, running north and south, which approaches the depot of defendant at Bement upon the east side, and connects with what is known as the Chicago main line; another is a main line extending east and west from Toledo, Ohio, to points west of Bement, this line passes the depot upon the south side, crosses the Altamont branch near the southeast corner of the depot; the third and Chicago main line, extending from Bement to Chicago, connects with the Toledo main line at a point several hundred feet west of the depot and from Bement west used that line, from the point of its connection with the Toledo line it passes the depot in a northeasterly direction and runs thence north to Chicago.

At the time of the injury to plaintiff’s intestate he was engaged, with other employees, under the direction of the section foreman, in placing a rail in the line known as the main Chicago line, which extended northeasterly past the depot. The place where a rail was out was about one hundred feet west of the depot at Bement.

Immediately to the north or northwest of the main Chicago line as it passed the depot was another track known as the passing track; this track was connected with the Chicago main a short distance west of the point where this rail was about to be laid by the section men.

Just before the injury to plaintiff’s intestate, a freight train approached from the west going upon the Chicago main line for the purpose of proceeding to Chicago. The conductor of this train had orders to take two coal cars which were located near the elevator on a siding of the Chicago main line, north and east of the depot, on arriving at the point where the rail was out, the section boss notified the crew in charge of the Chicago train that it would have to take the passing track to get past the depot to get to the coal cars. They did so, coupled on to the cars, and were returning to the train which had been left on the Chicago main line west of the depot. While this crew was at the northeast of the depot securing the coal cars, the section foreman had loaded upon a push car the rail to be placed on this track and was taking it on the push car to the point where it was to be laid. As they approached the point, the engine with the two coal cars was returning, the section men for some reason failed and neglected to note the approach of this engine with the two coal cars, and as they proceeded with the push car near the frog which formed part of the switch connecting the passing and the main track, they came in such close proximity to the coal cars and engine as to endanger a collision.

A brakeman upon the coal car hallooed for them to look out. They immediately left the push ear and scattered, the push car came in contact with the coal cars, the rail was pushed off and the push car upset. In plaintiff’s intestate’s attempt to get away from the push car he backed from the Chicago main, which at this point was only a few feet from the main Toledo line, and was hit by a fast mail train going west upon the Toledo main line, and was killed.

Owing to the fact that it is necessary to reverse this judgment upon erroneous instructions given by the trial court, we will not determine what facts have or have not been proven, or discuss the evidence or the sufficiency of this evidence to sustain the verdict.

The first instruction given upon behalf of the plaintiff directs a verdict for the plaintiff for a sum not exceeding $10,000, if the jury believe from the evidence that the servants in charge of the engine of the train going west upon the Toledo main line failed or neglected to ring a bell or sound a whistle, and tells them that a failure to do so was such negligence as to render defendant liable for the killing of the deceased, without regard as to whether or not just before and at the time of the killing, the deceased was in the exercise of due care and caution for his own safety, and without regard to the question as to whether he did see or might, by the use of reasonable care and caution, have seen the approach of this train in time to avoid injury; the only questions that the jury were required to find by this instruction in order to find for the plaintiff was that plaintiff’s intestate was rightfully upon the track where he was hit, and the failure of defendant’s servants to ring a bell or sound a whistle. Deceased was not killed at a place where the law required defendant to ring a bell or sound a whistle; and defendant is not required to ring a bell or sound a whistle while proceeding along its track for the purpose of informing employees, who are engaged in the repair of its tracks, of the approach of a train; and before they could be held liable it was necessary for the jury to also find that at that time it was negligence to approach this place without' sounding a whistle or ringing a bell; it was also necessary for them to find that plaintiff’s intestate was in the exercise of due care and caution for his own safety.

The burden was also upon plaintiff to show that the deceased was not guilty of contributory negligence in pushing or assisting in pushing the push car along the main Chicago line to a point where it was liable to come in contact with the coal cars which were approaching on that track. These section men testify that they did not see this engine either pass in going to get the coal cars or in returning with them; they were working within eight or ten feet of the point where this engine passed and where it was required to pass on its return, and there was nothing to obstruct their view or keep them from seeing its approach for several hundred feet, and they were bound to use their ordinary , senses of hearing and seeing in ascertaining the approach of these cars, and they cannot be permitted to say that they did not see it, if their failure to see was by reason of failure to use their ordinary senses, and it was incumbent upon the plaintiff to prove that in using this push car that the deceased was in the exercise of ordinary care for his own safety at that time, for the reason that the incident wdth the push car was the proximate cause of the intestate going to the point where he did upon the Toledo main track, and if he was negligent in producing the conditions that brought about this accident plaintiff cannot recover.

The second instruction is of the same character as the first, and subject to the same criticism.

The third instruction omits entirely the question of due care on the part of plaintiff’s intestate, either at the time of the collision with the push car or at the time that he stepped upon the main Toledo track.

For the reasons indicated, the judgment must he reversed and the cause remanded.

Reversed and remanded.


text:
    Arthur Hay, Appellee, v. Pleasure Driveway and Park District of Springfield, Appellant.
    1. Parks—power to discharge engineer. An engineer appointed by a park board for a year cannot recover his salary to the end of the term on his prior discharge, where the statute under which the board is organized provides that an engineer shall hold his office during the pleasure of the board.
    2. Evidence—when ordinance is admissible. Where plaintiff, who was appointed chief engineer by a park board at a salary of $1,800 a year and paid monthly $150, is discharged before the end of a year and sues for his salary for the remaining months, an ordinance providing that employes may be suspended at the pleasure of the board and shall be paid only the unearned wage for the remainder of the current month is erroneously excluded.
    3. Evidence—records of meeting of parle board. Where plaintiff, an engineer .for defendant park district, is discharged by the park board and sues for his salary for the remainder of a year, the records of the meeting showing the attempted discharge, offered in evidence by defendant, are improperly excluded, plaintiff not being entitled to raise the objection that the call for the meeting was not signed by two members and did not contain notice that the discharge of plaintiff would be acted upon at the meeting.
    4. Appeals and errors—where judgment is entered by court of review. Where plaintiff, an engineer for defendant park district, is discharged by the park board and obtains a judgment for $450, his salary for the remainder of the year, the cause having been tried without a jury, and it appearing from the evidence that plaintiff is only entitled to $150, his salary for one month, the judgment of the lower court will be reversed and a judgment entered for $150 by the appellate court.

      Appeal from the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed.
    Opinion filed March 18, 1913.
    B. L. Catron, for appellant.
    Smith & Friedmeyer, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellant is organized under chapter 105, Hurd’s Revised Statutes, state of Illinois, which permits the creation of parks and pleasure driveways for park purposes, in the city of Springfield. Appellee was, at a meeting held in June, 1910, duly appointed chief engineer, by the park board, at a salary of $1,800 a year, for the term of one year, which expired May 31, 1911. The park board, under this statute, consists of seven members, six trustees and a president, the president having all the powers of a member of the board. By reason of the shortgage of funds and the necessity óf curtailing expenses, the park board, at a meeting held on March 22, 1911, relieved appellee of his appointment as chief engineer of the board and refused to pay him thereafter. Appellee, insisting that his appointment was for one year and denying the power of the board to remove him within that time after such employment, brings suit for the balance claimed to be due him, amounting to $450. Upon the trial below, appellee offered in evidence the records of the park board showing his employment and the amount of salary he was to receive, admitting the payment of $1,350, contending that he is entitled to recover for the time After his attempted discharge by the board. On motion of the plaintiff, the court directed the jury to find a verdict for the plaintiff for $450, upon which judgment was rendered. Appellant insists that this judgment is erroneous, and appellee is not entitled to recover, and brings the record to this court by appeal.

The trial court sustained objections to the offer of the records of the park board of the meeting showing the attempted discharge of appellee as chief engineer on March 22, 1911, and it is insisted by appellant that the court erred in its rulings upon this evidence. This evidence was objected to and the objection sustained by the court upon the ground that the meeting of the board of trustees, or park commissioners, held on March 22, was not a legal meeting for the reason that no call therefor was signed by two members of the board requesting the president to call a meeting, and that this was a necessary requirement under the statute before a special meeting could be held. Also, upon the ground that the call which was issued for the special meeting by the president of the board did not contain notice that the question of the discharge of the engineer would be acted upon at that meeting.

Section 4 of the Act approved June 19, 1893, being paragraph 110 of chapter 105, Hurd’s Revised Statutes 1911, provides for the duties and powers of the president and trustees elected under the provisions of that act; it provides, among other things, as follows: * * * and may, in addition to the offices above mentioned, employ an engineer and attorney for such municipality, who shall hold their offices during the pleasure of the Board.”

It is insisted by appellee that the board having elected to, designate the term of office for the chief engineer for one year, that this was an expression of the pleasure of the board, and it could not afterwards discharge him. We cannot agree with this contention. The statute gave the engineer only the right to hold the office during the pleasure of the board, he took his office with full knowledge of this provision of the statute and is bound thereby. To hold this contention would be to deprive the board of the powers expressly given it by the statute. If the contention could be maintained that when the board designated one year as the limit of his appointment he was not subject to removal within that time, if the board had seen fit to designate the limit of his appointment for either two, three, four or five years, the same result would follow, and he could not be removed until the expiration of the full term designated in his appointment. The mere fact that the board designated one year as the limit of his appointment did not deprive it of the right to remove him at its pleasure. Uffert v. Vogt, 65 N. J. Law 621; Mathis v. Rose, 64 N. J. Law 45; Egan v. City of St. Paul, 57 Minn. 1.

The statute under which this board of trustees was created also authorized them by ordinances to prescribe the duties and fix the compensation of the officers and employees of the board.

Appellant offered in evidence ordinances passed by it which provided that all employees and appointees on the monthly pay roll, from and after the date of the passage of the ordinance, which was prior to the employment of appellee, were employed and appointed upon the following express conditions: “At the pleasure of the Board, said employees may be suspended or discharged, with or without previous notice, and when so suspended or discharged without cause shall be paid only the unearned wage for the remainder of the current month.”

It is insisted by appellee that by reason of his salary having been fixed at the sum of $1,800 per year, that the ordinance had no reference to him, and it was upon this ground that the objection was sustained to the introduction of the ordinance. The record in this case discloses that while the salary of appellee was fixed at $1,800 per year, he was paid and received monthly $150, whether or not he was on the monthly pay roll is not disclosed by the record. We think it was error for the court to refuse the admission of this ordinance in evidence, and when admitted it then devolved upon appellee to show that he was not on the monthly pay roll.

"While the statute regarding special meetings provides that the president shall call special meetings of the board on request of two or more of the trustees, and in case of special meetings shall cause written notices to be given to all members of the board of trustees, and while a resolution or ordinance of the board provides that no business could be transacted at a special meeting unless notice thereof was given in the notice of said special meeting, we are not prepared to hold that it was necessary before a special meeting could be held that a request therefor must be signed by at least two members of the board of trustees; The case of Lawrence v. Traner, 136 Ill. 474, is conclusive upon this question, and it is unnecessary for us to repeat the language used by the Supreme Court in that case. The contention that it was necessary to incorporate in the notice the exact language that the question of the discharge or removal of the chief engineer was to be considered at that meeting is not one which anyone but the members of the board could take advantage of. We think, under the ruling in Lawrence v. Traner, supra, that the board, unless objection was made, had power to consider, where all were present as was the fact in this case, any matter that the board should desire to consider. Appellee was present at the meeting of March 22, when the action was taken by the board relieving him from further duties as chief engineer, and it was not necessary that any special notice thereof should afterwards be given him.

We are satisfied that the board had power and authority to relieve appellee as chief engineer of that board, that the court erred in refusing admission of evidence as above indicated offered by appellant. Consequently, the court erred in directing a verdict for the plaintiff for $450. It is insisted by appellant that plaintiff is not entitled to recover anything in this action for the reason that under the ordinance offered in evidence, admission of which was refused, appellee comes within the terms of the ordinance and was upon the monthly pay roll and was therefore only entitled to recover upon quantum meruit, but this ordinance provides that where a party shall be discharged without cause, he shall be paid only the unearned wage for the remainder of the current month.

Applying this ordinance, appellee was entitled to recover for the month of March, 1911, as he was discharged on the 22d day of that month, he would, therefore be entitled to recover $150. Other objections were made by appellee to the introduction of the evidence offered by appellant in the trial court, but we do not consider them valid or sufficient.

The cause having been tried without a jury final judgment will be rendered in this court. Judgment in this court in favor of appellee and against appellant for $150, costs of this court to be paid by appellee.

Reversed with final judgment in this court.

Reversed.