text:
    John W. Ventriss, Appellee, v. The Pana Coal Company, Appellant.
    1. Tbial—when examination of talesmen improper. It is error for the court to allow the examination of talesmen to extend to the point of asldng them whether upon certain stated facts they will find for the plaintiff.
    2. Negligence—what does not tend to establish. The mere fact that a safer way of doing work might have been adopted or might have been known to the party charged with negligence, does not tend to establish the fact of negligence.
    3. Instructions—when erroneous in ignoring question of assumed risk. An instruction which directs a verdict for the plaintiff upon certain conditions and under certain findings from the evidence, is erroneous if it eliminates the issue of assumed risk.
    4. Instructions—must not give undue prominence to particular evidence. An instruction is erroneous which singles out certain portions of the testimony and gives undue prominence thereto.
    5. Instructions—must not he argumentative. An instruction is improper which is argumentative in form.
    Action in case for personal injuries. Appeal from the City Court of Pana; the Hon. Josiah P. Hodge, Judge, presiding. Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    J. C. & W. B. McBride, for appellant; M. W. Hayden and McQuigg & Dowell, of counsel.
    Hogan & "Wallace, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This action was brought by appellee to recover for injuries sustained while at work in the mine of appellant in Christian county, Hlinois.

The declaration, originally, contained two counts, both based upon statutory liability for wilful violation of the statute concerning the examination and marking of the mine. By leave of court three additional counts were filed, the first two counts on wilful violation of statutory provisions, and the third additional count on common law negligence for failure to provide a reasonably safe place for appellee to work; the third additional count was afterwards slightly amended. The trial resulted in verdict of $2,100 for plaintiff. A new trial was denied and it is to reverse the judgment rendered on this verdict this appeal is prosecuted.

In the examination of the jurors on their voir dire, each of the jurors was asked, if he should be instructed by the court that a coal miner, working in a coal mine, was injured by reason of wilful violation of the mining law of this State, that then the coal miner would be entitled- to recover damages regardless of whether he was in exercise of due care and caution for his own safety, and whether under such an instruction he would have any prejudice against that rule of law; they were also asked, if they believed from the evidence the plaintiff was injured under those circumstances, they would find for the plaintiff. These questions were answered “Yes.” They were permitted to answer these questions over the objection of the defendant.

The jury was impaneled, and at the close of the evidence of plaintiff, the cause of action was dismissed as to the original two counts of the declaration by the plaintiff; and after leave was given to amend the third additional count, and upon the close of all the evidence, on motion of the plaintiff, the suit was further dismissed as to all the remaining counts of the declaration except the third additional count. This count was based on common law negligence in failing to. provide a safe place, etc.

It is urged by appellant that in permitting the jurors on their voir dire to answer these questions virtually committed the jurors, if certain facts were shown on behalf of the plaintiff, to agree to render a verdict in his behalf and this, without regard to what might be disclosed upon the part of the defense or without relation to what the instructions of the court to the jury might be, regarding such conditions of affairs.

The court permitted too great a latitude in the examination of these jurors and should not have allowed the examination to extend to the point of asking the jurors whether upon certain stated facts they would find for the plaintiff. It was error to permit this examination of these jurors.

The record discloses that appellee was in the employ of appellant as a company man and at the time of his injury was engaged with a force of men, working under one Wheitsel,, the night boss. At the place where plaintiff was at work in this entry it became necessary to raise the track and in order to do it required taking down the roof of the entry for some distance, and this was the work being done at the time plaintiff received the injury. The work required the taking out of the timbers holding the roof of the mine, cleaning out the slate and rock which fell or became loose, and loading the same into cars for the purpose of talcing it out of the mine. This entry extended north and south, and on the morning of the twenty-first of June, the day shift commenced the work of brushing this entry and worked north, from the point where they began, a distance of about twenty feet or more, had knocked out three or four sets of props and let fall upon the track a considerable quantity of rock and slate. The night shift, with which plaintiff was working, began its work at about the point the day shift commenced; the night shift worked south from that point and also took out three or four sets of props and let the rock and slate fall upon the track. Before the night shift began its work, props and a cross bar were placed at a point about where the work was commenced, and within a few feet south of this there was another set of props and a cross bar left standing. The plaintiff and the other men of the night shift were engaged in taking down props and pulling down the roof for some considerable time, and up to about the time when they ate supper. Some of the stone or slate of the roof was very difficult to release. The plaintiff and others took a crow-bar and other instruments to pry the rock or slate loose from the roof but were unable to do so. The night boss, "Wheitsel, was there with the men during all of the time they were at work. After supper and after they had taken down about all of the slate and rock they could get down, the night boss directed the men to get the car and take the slate and rock from off of the track. The car was placed by some of the men at or near the cross-bar and a few feet distant south from the point where they began work and the men commenced the work of loading the slate and gob into the car from off of the track.

Appellee contends that the taking out of the props at the place where he was at work and the failure to replace them where the former shift of workmen had been engaged, rendered the place dangerous and testified that he informed the night boss he did not think it was a safe place to work, but the night boss replied “He did not see how it could come down,” and directed ■appellee to proceed with the work, and it was in doing this work, after having been engaged for a short time, that the cracking of the roof was heard and in attempting to get away from the falling rock and slate appellee was caught by the same and received his injuries.

Appellant has assigned as error the admission of certain evidence over its objection; also the giving of the second, fourth, fifth and sixth instructions on behalf of appellee.

The evidence objected to by appellant and admitted by the trial court is upon the line that there was a safer way in which to have done the work than that adopted by appellant and permitted the witnesses for appellee to tell the manner of doing the work which would have been safer. The admission of this evidence, over the objection of appellant, was error. The mere fact that a safer way might have been adopted, or may have been known to appellant does not show, or tend to show negligence on the part of appellant.

The second instruction given on behalf of appellee, -of which complaint is made while somewhat involved, states the law substantially correct.

The third instruction given on behalf of appellee was as follows:

“3. If you believe from the evidence in this case that the plaintiff was in the employ of the defendant when and where as in said count is alleged, and while so engaged and while in the exercise of due care and caution for his own safety, taking into consideration all the circumstances shown by the evidence as to said time and place, and surrounding conditions, the plaintiff was injured as in said count is alleged, and that, the defendant negligently failed to provide the plaintiff with a reasonably safe place in which to work, taking into consideration the character of said work, and as a consequence thereof he sustained the injuries complained of in said count, then your verdict in this case should be for the plaintiff.”

This instruction directed a verdict for the plaintiff upon certain conditions and certain findings from the evidence. The instruction eliminates the question of assumed risk on the part of appellee. Where an instruction permits or directs the recovery in the case without reference to any other, the instruction must include all the conditions necessary for a recovery. Swiercz v. Illinois Steel Co., 231 Ill. 456; Illinois Iron & Metal Co. v. Webber, 196 Ill. 526.

The fourth instruction given on behalf of appellee is erroneous in the fact that it singles out certain portions of the testimony and gives undue prominence thereto. It is also argumentative and should not have been given. The fifth instruction is open to the same criticism as the fourth. Craig v. Miller, 133 Ill. 300; Hartshorn v. Byrne, 147 Ill. 419; Sullivan v. Eddy, 164 Ill. 391.

The evidence in this case upon the question of negligence of the appellant and the due care, and of assumed risk of the appellee, is very close, and it is a well established rule, that where the evidence is close and conflicting, the jury must be accurately instructed.

For the errors indicated above, judgment will be reversed and the cause will be remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Me. Justice Philbrick

license: Public Domain

text:
    Jennie E. Shaffner, Plaintiff in Error, v. State Board of Agriculture, Defendant in Error.
    Appeals and errors—effect of failure by appellee to file brief. Under the rules of the Third District a reversal pro forma will he ordered if the appellee fails to file a brief.
    Bill in chancery. Error to the Circuit Court of Sangamon county; the Hon. J. A. Creighton, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    S. H. Cummins, for plaintiff in error; Julius N. Heldman, of counsel.
    No appearance for defendant in error.
   Me. Justice Philbrick

delivered the opinion of the court.

Defendant in error has filed no brief or argument in this court and under the rule the judgment is reversed and the cause remanded pro forma.

Reversed and remanded.


author: Mr. Justice Philbriok

text:
    John Watson, Appellee, v. E. G. Coon et al., Appellants.

      Practice—section IS of Act construed. The word “non-residents” in section 13 of the Practice Act governing service of summons upon co-partnerships, applies to non-residents of the county in which the suit is brought and is not restricted to non-residents of the State.
    Assumpsit. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    Owen & Owen and Barry & Morrissey, for appellants.
    Herrick & Herrick, for appellee.
   Mr. Justice Philbriok

delivered the opinion of the ■ court.

This is an action brought by appellee against appellants in the Circuit Court of DeWitt county to recover damages for breach of an alleged contract to purchase corn. E. Gr. Coon and James S. Coon were partners and doing business under the name of Coon Brothers. They were doing business in the county of DeWitt through one Thomas Conners as their agent. Appellants were not residents of DeWitt county. The summons was issued to the sheriff of DeWitt county. It was served by the sheriff upon Thomas Conners, as agent of E. Gr. & James S. Coon, partners as Coon Brothers. E. Gr. Coon and James S. Coon were not personally served with process.

Motion was made by appellants in the Circuit Court of DeWitt county to quash the return of the sheriff on the ground that by that return the court did not obtain jurisdiction. Appellants limited their appearances for the purpose of that motion. The motion was overruled, appellants elected to stand by their motion, a jury was impaneled and a verdict returned in favor of plaintiff and judgment rendered on the verdict; to reverse which this appeal is prosecuted.

The sole and only question raised by this appeal is whether or not the Circuit Court of DeWitt county had jurisdiction of the defendants.

Section 13 of the Practice Act, under which this service was obtained, is as follows: “A co-partnership, the members of which are all non-residents, but having a place or places of business in any county of this state, in which suit may be instituted, may be sued by the usual and ordinary name which it has assumed and under which it is doing business, and service of process may be had in such county upon such co-partnership by serving the same upon any agent of said co-partnership within this State.”

While this act provides that service may be had in the county where the suit is brought upon any agent of the co-partnership within the State, the contention of the appellants is, that by the use of the language “a co-partnership, the members of which are all nonresidents” should be construed to mean co-partnerships the members of which are all non-residents of the State, and that where the members of the co-partnership are residents of the State then this section has no application and the members of such partnership can only be sued in the county where they or some one of them resided, and in such case the plaintiff must rely oh section 6 of the Practice Act, which provided that no defendant shall be sued except in the county in which he resides or may be found, and present the question by this appeal whether the word “non-residents” applies to non-residents of the State or nonresidents of the county in which the suit is brought or both.'

Upon the question as to whether the word “nonresidents” in section 13 of the Practice Act refers to non-residents of the State or non-residents of the county in which the suit is brought must be construed according to the general rule of the construction of statutes and intention of the legislature, must be determined from the act itself. The legislature has not and did not by any direct language limit this section to nonresidents of the State. A person may be a non-resident of a town, of a city, of a county or of a state and without an express limitation, the word as used in this section must be construed to include all falling within the term “non-residents.” Garner v. Meeker, Admx., 169 El. 40.

The Practice Act provides for the service of a corporation upon any agent in the county where the suit is brought, when certain other officers are not found within that county. A corporation does its business through officers, agents and servants. A partnership business may be conducted in the same manner, whether the partners be non-residents of the state or of the county where the business may be conducted and it is only reasonable to presume that the legislature intended to provide for service upon a partnership doing business outside of the county in which the members of the co-partnership reside with like effect and same manner in which service may be had upon a corporation.

We hold, therefore, that the word “non-residents’* in section 13 of the Practice Act applies to non-residents of the county in which the suit is brought and is not restricted to non-residents of the State. By this service and return the Circuit Court of Dewitt county obtained jurisdiction of the defendants in this cause and the judgment was properly rendered by said court.

The judgment is, therefore, affirmed.

Affirmed.


author: Mr. Justice Philbrick

text:
    U. E. Garrett, Appellee, v. Ann Conner et al., Appellants.
    1. Justices oe the peace—when judgment on appeal may he rendered for more than $200. If several suits, each for less than $200, are instituted before a justice of the peace, are thereafter appealed and upon motion of the complaining party, consolidated, a judgment in the consolidated cases for more than $200 cannot be questioned.
    2. Landlord and tenant—right to recoup in action for rent. The measure of damages where a tenant seeks to recoup against a claim for rent is the difference between the rental' value for which the premises were contracted at the time of the lease and the rental value in the condition in which they were placed by the action of the landlord.
    3. Landlord and tenant—right to recoup in action for rent. As long as a tenant continues in the use and occupation of premises he cannot off-set, as against the rent contracted to be paid, any damages by reason of inconvenience to him in such use and occupation, and any act of the landlord which merely tends to diminish the beneficial enjoyment of the premises cannot be off-set as against the rent contracted to be paid.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Vermilion county; the Hon. E. R E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.

      M. F. Keegan and Terence B. Cosgrove, for appellants.
    D. D. Evans and C. G-. Taylor, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellants were tenants of appellee under written lease. The rent was not paid when it became due, and as the monthly installments came in default, appellee brought suit to recover. Four separate suits were brought before a justice of the peace; they were appealed to the Circuit Court. Before trial in that court the four cases were consolidated, upon motion of the appellants; trial was had in that court on the cases as consolidated and resulted in judgment for the appellee for $285; to reverse which this appeal is prosecuted.

It is urged that because these actions were begun before a justice of the peace the court had no power to render judgment for more than two hundred dollars and the judgment is, therefore, erroneous. These several suits were each for less than two hundred dollars and it was on motion of appellants that they were consolidated and tried as one case in the Circuit Court; consequently they cannot complain that judgment was rendered, in the consolidated eases, for more than two hundred dollars. If any error was committed therein, it was with the consent of the appellants.

On the sixth day of August, 1906, appellants, who were partners in the dress making business in the city of Danville, leased from the appellee certain rooms in the office building located at Nos. 7 and 9 West Harrison street, Danville, Illinois, for the term of one year, beginning on the 25th day of August, 1906, for a monthly rental of $47.50, rent to be paid on the first day of each and every month during the term. After this lease had been executed and entered upon, other rooms were leased, by verbal lease, but these rooms were only occupied until April 1, 1908, all rent paid thereon, and they were surrendered. The rent in controversy is for the former premises occupied after that time.

The means of access to these rooms was through a stairway leading to the second floor and entrance from a hall-way. During the continuance of this lease, appellee, who owned the property adjoining on the west of the building in which these rooms were located, began the erection of a building thereon, and during the construction of this building, holes were cut in the walls of the building in which the rooms occupied by appellants were located; the hall-way became littered with brick and mortar, interfering with the ingress to- and egress from the rooms and the litter created thereby was more or less thrown and tracked into the rooms occupied by appellants.

The lease provided that appellee should furnish water for the .use of appellants in these rooms; at times this provision was not complied with. Complaints were made concerning this by appellants but no attention was paid by appellee to these complaints. Notwithstanding these inconveniences, appellants continued to occupy the rooms and were still occupying them at the time these suits were brought.

The defense made by appellants was a partial eviction by reason of the inconvenience and lessening of the advantages to appellants in the occupancy of these rooms and the damages claimed consisted in the inconveniences and lessening of the enjoyment of the premises by the appellants, the extra care and work required in taking care of the premises. The trial court refused the offer of evidence of these matters as a measure of damages.

While a tenant may recoup proper damages in an action for rent, the measure of such damages is not such as was attempted to be proven in this case but is the difference between the rental value for which the premises were contracted at the time of the lease, and the rental value in the condition in which they were placed by the action of the landlord. The decease, if any, in the rental value of the premises is the true measure of damages..

As long as appellants continued in the use and occupation of the premises, they could not off-set as against the rent contracted to be paid any damages by reason of inconvenience to them in the use and occupation, and any act of the landlord which merely tended to diminish the beneficial enjoyment of the premises, could not be off-set as against the rent contracted to be paid.

No evidence was offered by appellants upon the question of the rental value of the premises being lessened by reason of the conditions which were produced.

The rule laid down by the Supreme Court in the following cases is controlling: Rubens v. Hill, 213 Ill. 541; Keating v. Springer, 146 Ill. 495; Chicago Legal News Co. v. Brown, 133 Ill. 317.

The court committed no error in .sustaining the objections to the evidence offered by appellants, and the instructions given by the court were in accordance with the rulings held by it in an admission of this evidence.

The appellants complain of the refusal of their instruction number nine by the trial court. This instruction was not based upon the evidence. There was no eviction from any part of these premises of appellants; they continued to occupy the premises and the damages claimed were by reason of the inconveniences in the use and occupation of the premises; this does not amount to an eviction. This instruction was based upon an eviction from the premises and was properly refused.

It is also urged that the court erred in refusing appellants’ instruction number thirteen. This instruction is based upon the theory of a recoupment of damages for the inconvenience in the use and occupation, the evidence of which was properly rejected and was properly refused.

Appellants’ instruction number fourteen is subject to the same objection as that of number thirteen, and was properly refused.

The trial court committed no error in the admission or rejection of evidence in this case, or in giving or refusing instructions. The judgment is, therefore, affirmed.

Affirmed.


text:
    S. H. Cummins, Appellee, v. D. A. Drennan., Appellant.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Instructions—must not invade province of jury. An instruction is improper as invading the province of the jury which undertakes to tell them that if certain facts are shown and others are not -shown, then a particular verdict should be rendered.
    Action commenced before justice of the peace. ■ Appeal from the ■Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1909.
    Af■firmed.
    Opinion filed March 30, 1910.
    Masters & Masters, for appellant.
    Wo S. Greer, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the -court.

This was an action originally brought before a justice of the peace by appellee to recover from appellant ■compensation for professional services, claimed to have been performed as an attorney at law for appellant. Trial was had by jury which resulted in judgment for appellee for $176.16, and it is to reverse that .judgment this appeal is prosecuted.

In this case appellee claims that he was employed by appellant in regard to three matters; one being known -as the Ankrom, another in regard to the right of way to a railroad company, and the third, a criminal case; the appellee contending that appellant made a distinct employment of his services in each of said matters and that he performed services therein and is entitled to recover therefor.

The contention of appellee is vigorously contested by appellant and each and every act claimed to have been performed by appellee for appellant, at his request, is positively and distinctly denied by appellant, and there is no possibility of reconciling the testimony in this case. There is some evidence in this record tending to corroborate the appellee in his claim that he was employed by appellant and there is proof tending to corroborate him in the fact that he performed some of the services claimed to be performed.

The evidence disclosed that in regard to the indictment, which was rendered against appellant by the-grand jury of Sangamon county, appellee did appear and argue a motion to quash this indictment, and one-other witness testifies as to having heard the Campbell matter discussed in Cummins’ office by Cummins and Drennan, and the Campbell matter is the one out of which the indictment originated. While if the matter was originally tried by this court, it might not have been willing to have found as the jury did, the matter involved in this controversy is purely a question of fact, and it was the province of the jury to hear this-testimony and determine the questions of fact between these parties. Where the evidence is as conflicting as. in this case, and there is evidence tending to support the verdict of the jury, and where we are not prepared' to say that the verdict is clearly against the weight of the evidence, this court ought not disturb the finding of the jury upon the questions of fact.

- Counsel for appellant insists that instruction “A”offered on his behalf and refused by the trial court should have been given. This instruction invaded the province of the jury in undertaking to tell them if certain facts are shown and others are not shown, then the verdict must be for the defendant. The instruction is. based upon the theory that there is no evidence or circumstances corroborating either appellant or appellee- and does not attempt to inform the jury of their duty, if there is such corroborating testimony, and it took from the jury the right and the duty to determine from all the evidence in the case upon which side the greater weight of evidence was, and determine the facts accordingly. The instruction was properly refused.

There being no substantial error in this record, the judgment is affirmed.

Affirmed*


text:
    Emma Waschow et al., Appellants, v. John Waschow, Appellee.
    1. Vendor and vendee—what does not affect right of Hen. A vendor’s lien will not be defeated because the complainant seeking the same has filed his claim against the estate of the party against whom the right of lien existed.
    2. Res judicata—what essential to establish. In order to constitute an estoppel by a former adjudication, the identity of the parties, subject-matter and the cause of action must co-exist.
    3. Res judicata—when not established. The adjudication of a claim in the court of probate is not res judicata as against the heirs at law of the decedent’s estate.
    Bill in chancery. Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    H. Behest Huttoh, for appellants.
    ' S. F. Schecter and J. B. Mahh, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is a bill in chancery to establish a vendor’s lien upon a certain homestead in Vermilion county, Illinois, owned by the widow and heirs of Herman John Was-chow, deceased.

The bill prayed a lien for a debt which had been allowed in the County Court of the same county, and that a lien be decreed on the homestead of decedent. The bill states that various debts exist against the estate and states that defendant, administratrix, refused to apply to the proper court to sell the homestead to pay debts, and prayed that defendant, Emma Waschow, as administratrix, be required by the court to make application to sell such real estate and that the claim of appellee be declared a lien on such real estate.

John Waschow amended his bill in which he stated a balance was due him on the purchase price of the property in question; that a deed was made October 8, 1906, but not delivered until May, 1907, when decedent promised to borrow money on said realty to pay balance due; that complainant in said amended bill is entitled to a lien on said real estate for balance due on purchase price thereof; that defendants had occupied the same as a homestead since the date of the sale aforesaid and that defendant therein, Emma Waschow, is administratrix of said decedent.

Demurrer was overruled to the bill and defendants filed a plea of res adjudicata, which plea set forth that the claim for the amount alleged to be due was filed in the Probate Court and the claim allowed as a judgment against the estate of the seventh class. That after the claim was so placed in judgment in the Probate Court, appellee, in the Probate Court, entered a motion to amend the judgment to show that the claim was for balance of purchase price due on sale of real estate; that this motion was overruled by the court and that the action of the court thereon is final, and that the question cannot be re-opened in this proceeding.

There is no dispute of the facts in this case or what the evidence and records show, nor is there any question but what the proof fully sustains the allegations of the bill, and the only defenses relied on are the plea of res adjudicata and that the complainant has an adequate remedy at law.

The appellee had the right to file his claim against the estate of deceased and have it prosecuted there to a judgment and have his judgment paid from the proceeds of the personal estate, if they were sufficient so to do, and the fact that he did so file his claim is no bar to the prosecution of any rights he may have in a court of equity to enforce a vendor’s lien. A party is always at liberty to prosecute as many remedies as he may be entitled to to enforce the collection of his claim, but he can only have one satisfaction. In the prosecution of his claim to a judgment before the Probate Court, the only party necessary was the administratrix, and if there were sufficient funds to pay it from the personal estate, no other party need be brought into that court on a hearing of the cause.

The heirs of a decedent, who inherit his real estate, are not proper or necessary parties before a probate court, except on an application to sell the land of decedent to pay his debts and no application having been made for that purpose in that court, the heirs, who inherit his real estate, were never before that court for the purpose of adjudication of this claim; therefore, the plea of res adjudicata is not sustained by the proof.

In order to constitute an estoppel by a former adjudication, the identity of the parties, subject matter and the cause of action must co-exist. Markley v. The People, 171 Ill. 260.

The fact that appellee places his claim in judgment against the estate of deceased, does not bar him from prosecuting an action to maintain a lien for the amount of that judgment against that property, if the lien existed, and an action for the vendor’s lien cannot be enforced at law—it is an equitable proceeding and resort must be had in a court of equity to enforce it. The two remedies are concurrent and appellee was at liberty to prosecute both at the same time if he saw fit. Palmer v. Harris, 100 Ill. 276; Culver v. Elwell, 73 Ill. 536.

While a vendor’s lien, as in this case, is a secret lien, no rights of third parties have intervened in any way. The heirs and widow of the deceased took this property subject to the vendor’s lien, which was superior to all dower and homestead rights and the widow is, therefore, not a necessary party to this action.

The evidence in this case fully supports all the allegations of the complainant’s bill. The decree of the Circuit Court was, therefore, proper and it is affirmed.

Affirmed.


text:
    Trustees of Schools, Macoupin County, Appellees, v. John Crawford et al., Appellants.
    1. Cities, villages and towns—estoppel to deny records. To permit the record made by a township treasurer of his acts or doings as such treasurer to be varied or contradicted by him by parol testimony, would be a positive and direct violation of the rules laid down by the Supreme Court of this State.
    2. Cities, villages and towns—when township treasurer liable upon bond. If a loan of township funds is made contrary to the statute the township treasurer is liable upon his bond and this notwithstanding he was advised or directed by the trustees to enter into the transaction in question.
    Action of debt. Appeal from the County Court of Macoupin county; the Hon. Paul McWilliams, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    Peebles & Peebles, for appellants.
    James H. Murphy, and Victor H. Hemphill, for appellees.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought on official bond of appellant, John Crawford, as township treasurer, town 11, range 7, Macoupin county, to recover money loaned in violation of the statute by him as treasurer to one-Richard Bacon.

Trial was had in the court below without a jury, finding judgment for appellees, $107.43; to reverse which judgment appellants prosecute this appeal. John Crawford was school treasurer of town No.. 11, range 7, Macoupin county, Illinois. There came into his hands as such treasurer two notes for the sum of '$50 each, signed by Richard Bacon as principal, with two parties named Johnson as sureties. The notes were originally executed about thirty years ago; they continued in the possession of the school treasurer until the year 1896 when John Crawford, as such treasurer, under direction of the trustees of schools surrendered these notes to Richard Bacon, the maker, who was then and and had been for some time insolvent, and the sureties were all either dead or had removed from the state. Crawford as such treasurer took a. new note in their place, signed only by Richard Bacorf and upon his treasurer’s record he made the following entries:

Page 132 Township Treasurer’s Cash Book “Ledger page 1896
Month day from whom Twp. fund Int. Total
April 6 Brought forward ...............$340.36
April 6 Joseph Roberts .........$10.00 10.00
April 6 Richard Bacon .. .$100.00 57.43 157.43
$507.79”'
Page 133 Township Treasurer’s Cash Book.
“For T No 11, R No 7 in Macoupin County, Illinois.
Expenditures and for what purposes. Ledger page 1896.
Month day To whom Total
April 6 Richard Bacon, loaned ..........$ 50.00
April 6 Richard Bacon, by former credit on note of Richard Bacon...... 50.00
April 6 Richard Bacon, interest added to principal loaned .............. 57.43
April 6 Jonathan Crawford, salary...... 75.00
April 6 Distributed to districts .......... 271.32
April 6 Balance distribution funds on hand 4.04
$507.79”

The law requires that the township treasurer shall keep a record of his transactions in this respect. This record was made by him to fulfill the requirement of the law.

In surrendering the old notes and taking the new .note therefor for the aggregate amount of the two old notes, and entering upon his books the receipt of so much money from Bichard Bacon and crediting the same up to the town to which it belonged and charging himself with this amount upon his books and entering and crediting himself upon bis books with the loan made to Bichard Bacon, shows the record of the transaction so far as Jonathan Crawford is concerned; and having acknowledged the receipt of this fund and credited the proper town therewith, he thereby acknowledged the receipt of the fund in his hands and is now estopped to deny it.

Appellant insists that he should have been permitted to show the entire transaction or history upon which his record as treasurer was made and that he should not be held hable in this action upon any technical rule of law, holding that the record made by him is conclusive. To permit the record made by the treasurer of his acts or doings as such treasurer to be varied or contradicted by parol testimony would be a positive and direct violation of the rule laid down by the Supreme Court of this state and of other states upon this ■question. The rule is so well settled that it cannot now be questioned. The Supreme Court in the cases of Longan v. Taylor, 130 Ill. 412, Morley v. the Town of Metamora, 78 Ill. 394, and Doll v. The People, 145 Ill. 253, has determined the question that the entries made by the ■ treasurer in his records are conclusive and cannot be varied or contradicted, and having so acknowledged he received this fund, he thereupon became an absolute insurer of its safety and if disposed of in any other manner than that provided by statute, he became liable therefor. Swift v. Trustees of School, 189 Ill. 588; section 101 of Revised Statute, chapter 122, regarding school funds, “For all sums not exceeding $200 loaned for not more than one year two responsible sureties shall be given.”

The note taken for this loan from Richard Bacon is in direct violation of this provision of the statute, and by reason thereof, and having made the loan contrary to the provisions of the statute, he is liable therefor; and the fact that he was advised or directed by the trustees of schools to surrender this note and take the new one, in the manner in which he did, is no defense to the action against him for violation of the statute for making this loan. The trustees had no right or power to and could not abrogate the provisions of this statute. It was imperative on his part to follow the statute or become liable.

The loan was made to an utterly irresponsible party and without any security whatever and Jonathan Crawford being estopped by his record to deny the loan was made, appellants have no defense whatever in this action.

The appellants assigned as error the holdings of the propositions of law of the trial court but do not argue these propositions; we, therefore, presume they have waived the errors assigned upon the propositions of law.

There is no error in this record and judgment of trial court will be affirmed.

Affirmed.


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    The People of the State of Illinois, Defendant in Error, v. Wesley A. Colwell, Plaintiff in Error.
    1. New trial—effect of written motion. A party filing a written motion for a new trial is limited to the grounds therein assigned.
    2. Wipe abandonment—what evidence competent. While evidence that the wife of the defendant has been assisted in her support by public officers is not permissible for the purpose of proving or showing that such defendant was guilty of wife abandonment, yet such evidence is proper for the purpose of showing where and in what manner his wife had received her support.
    3. Wipe abandonment—what evidence competent. Evidence in a prosecution for wife abandonment, held, competent to show the defendant had visited the house of a woman of questionable reputation.
    Prosecution for wife abandonment. Error to the County Court of Ford county; the Hon. H. H. Kerr, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    Schneider & Schneider, for plaintiff in error.
    O. H. Wylie, for defendant in error; A. L. Phillips, of counsel.
   Mr. Justice Philbrick

delivered the opinion of the court.

On information filed in the County Court of Ford county upon the charge of wife abandonment, plaintiff in error was tried, found guilty by a jury and sentenced by the court to pay a fine of $120 and costs of suit, and in addition thereto the court, under the provision of the statute, rendered a judgment requiring the plaintiff in error to pay to his wife the sum of ten dollars each week for the period of one year, beginning with the date of the judgment, and that he be released from custody one year on entering into recognizance of $500, conditioned for the payment of such weekly sums to his wife. He was then committed to the county jail until the fine and costs were paid.

Plaintiff in error and his wife, Emma Colwell, were married December 7, 1905. They had a small piece of property and lived therein for some time. In June, 1908, plaintiff in error sent his wife, who was then ill, home to her mother at Melvin, Illinois, to remain there until plaintiff in error could find work and provide for his wife. She stayed at her mother’s something like three months. The wife was ill and unable to care for herself. Plaintiff in error paid nothing for the wife’s support at her mother’s and while she was there induced her to join him in a deed for the sale of their home at Paxton, where they had resided. Creditors of plaintiff in error were pressing him and he represented to her that if the premises they owned were sold he could pay his indebtedness and provide for her until he could obtain work.

. Plaintiff in error visited his wife three times at her mother’s home. After that she saw nothing of him and heard nothing from him. He obtained and received the money for the sale of the property but used the same for other purposes than assisting his wife, representing to her he paid it on indebtedness from him to his parents. The wife’s mother, to whose home she had been sent by him, was unable to care for and provide for her daughter. While she was still unable to provide for herself, he went to Indiana and Ohio. He was arrested under the warrant issued on the information on the second day of 'November, 1908. Up to that time he provided nothing for the support or maintenance of his wife, and did not even communicate with her.

Plaintiff in error contends that the judgment against him should be reversed and assigns the usual reasons therefor. The only ones seriously to be considered in the record and seriously urged by plaintiff in error are that the court admitted improper evidence on behalf of the people over his objection and gave improper instructions to the jury. Plaintiff in error filed his written motion for a new trial and assigned various reasons therefor, and having reduced his motion to writing is limited to the causes therein assigned.

The plaintiff in error insists that three elements must be present in order to constitute the charge of wife abandonment: First, there must be an abandonment; second, the abandonment must be without good cause; and third, he must neglect and refuse to provide for her.

Upon the first proposition raised, plaintiff in error went away from his wife without leaving her any means for support and without communicating with her and continued to do so until the time of his arrest, the.second day of November, 1908. The excuse that he gives for doing this, is that he was unable to earn any more than was necessary to take care of himself and that by reason of his not being able to earn more than sufficient to care for himself, he, therefore, did not neglect or refuse to provide for her, for the reason he had no funds with which to provide for her. If such a defense could be permitted to prevail, we are at a loss to know where convictions could be had in such cases.

The evidence in this case fully warrants' the verdict of the jury, convicting the plaintiff in error, and unless improper evidence has been admitted by the trial court or an error committed in the instructions, the judgment should be affirmed..

Upon the question of the admission of improper evidence it is insisted that the court improperly permitted the people to show that the plaintiff in error’s wife had been assisted in her support by public officers of Ford county. While this was not permissible for the purpose of proving or showing that the plaintiff in error had abandoned his wife, it was permissible for the purpose of showing where and in what manner the wife had received her support, and whether or not from the plaintiff in error, and having been properly admitted by the trial court, if plaintiff in error desired to have it limited to the purposes for which it was admissible, he should have offered instructions to the court limiting this evidence, to such purpose; if admissible for any purpose whatever, it was admissible over a general objection, and once in, the only way to limit its proper consideration by the jury was by instructions.

It is also insisted that the court improperly admitted evidence. of various visits, testified to by witnesses, concerning the visitation of plaintiff in error to the house of a woman living in Paxton whose reputation was of a questionable character, during which times, although staying in Paxton, he remained away from his wife. We think this evidence was properly admissible upon the question of neglecting and abandoning his wife.

In regard to the instructions complained of by plaintiff in error which were given on behalf of the People, in his written motion for a new trial plaintiff in error complains of only the sixth and seventh and having ■filed a written motion, he is limited to the causes therein assigned. While these instructions are not technically correct and we would be better satisfied if they had not been given, we are satisfied that the plaintiff in error was not prejudiced by the giving of either of those instructions and that it did not constitute a reversible error to give them.

The judgment in this case, upon the merits of the controversy, is correct and there is no question in the mind of this court of the plaintiff in error’s guilt of the charge made against him, and finding no error in the record which requires a reversal the judgment is affirmed.

Affirmed.


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    John W. Harbauer, Appellee, v. Springfield Consolidated Railroad Company, Appellant.
    Contributory negligence—boarding crowded car. If a plaintiff is injured by being pushed or jostled from a car because of its overcrowded condition, the question as to whether or not he was guilty of contributory negligence in boarding a car known to be crowded, is one of fact and not of law.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. R. B. Shirley, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910..
    Wilson, Warren & Child, for appellant.
    Bobert H. Patton, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant to recover for an injury claimed to have been received by reason of falling from the car of appellant in the city of Springfield. The negligence charged consists in permitting the car to be so over-crowded that by reason of the crowding and pushing of the people thereon, appellee was jostled or pushed from the car. Trial bélow resulted in verdict for $750.

Appellant operated a street car system in the city of Springfield and was also operating an amusement park, known as White City, east of Springfield. The cars going to this park on this occasion were crowded, passengers standing upon the running board as well as inside of the car. There was a number of people standing at what is known as Sixth street, and when the car reached this crossing, it stopped for the people, there congregating, to board the car. They did so, and the car afterwards proceeded upon its way; the conductor, in collecting the fares, was compelled to swing out, and pass the passengers standing upon the running board. It was while the conductor was collecting his fares in this manner that appellee fell from the car.

There is a conflict in the evidence as to whether there was standing room in the aisles of the car, but there is no question but what the car was so crowded that people were compelled to stand upon the running board. The defense in this case denies the over-crowding of the car and insists, if. the car was over-crowded, appellee in boarding a crowded car was guilty of such contributory negligence he cannot recover.

Upon the question of fact as to whether or not the car was over-crowded and whether or not the appellee was pushed or jostled from the car by means of its over-crowding, are questions of fact for the jury and by their verdict they have found adversely to the contention of appellant. We cannot say that the judgment in this case is not supported by the evidence; the evidence is contradictory and where the evidence on a question of this character is conflicting and there is sufficient evidence to warrant the verdict, this court will not interfere with the verdict, unless the verdict is manifestly against the weight of the evidence.

Appellant criticises the instructions refused by the court, offered on its behalf. These instructions are based upon the theory that the appellee was guilty of such contributory negligence by boarding a car which was crowded as it is contended this was, that he cannot recover, and each of these instructions upon that theory directed a verdict. To have given these instructions would have been to hold that as a matter of law it was negligence per se for appellee to ride on the running board. The supreme court has repeatedly held the question of contributory negligence in such case to be one of fact for the jury. Petersen v. E. A. & S. Traction Co., 238 Ill. 407; C. & A. R. R. Co. v. Fisher, 141 Ill. 614. It was not error to refuse them.

There is no error in the instructions given by the trial court and the verdict being warranted by the evidence, the judgment is affirmed.

‘Affirmed.


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    B. F. Wilson, Appellee, v. Byard Griffith, Appellant.
    Negotiable instruments—what evidence competent hy way of defense. In an action upon a promissory note it is error for the court to exclude evidence which tends to show endorsement to the plain- - tiff after maturity and actual notice to the plaintiff, prior to obtaining the note by assignment, of the fact of payment.
    Assumpsit. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochean, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    John Fuller, for áppellant.
    Lemon & Lemon and George B. Rhoads, for appellee.
   Me. Justice Philbrick

delivered the opinion of the court.

Appellee brought an action of assumpsit against appellant on two notes for $500 each, one dated September 1, 1896, due eighteen months after date, payable to Savilla Curry, signed by Byard Griffith, appellant, and H. S. Griffith; the other dated September 24,1896, payable one year after date to the order of William Curry, signed by Byard Griffith, appellant, H. B. Griffith and Savilla Curry.

The declaration consisted of three special counts and the common counts.

The defense presented by the pleas were that the notes had been paid; that they were assigned to appellee after maturity and that appellee purchased them with full notice that they had been paid; that at the time of payment the notes belonged to and were in the possession of W. J. Curry and that the plaintiff had full notice of such payment before he came into possession of the notes.

The note of date September 1,1896, was payable to the order of Savilla Curry. This note was endorsed by her to W. J. Curry, by him to O. O. Storm and by O. O. Storm to B. F. Wilson, appellee herein.

The note of date September 24,1896, was payable to the order of W. J. Curry and was endorsed September 2,1899, by him to Mart L. Herrin and by Mart L. Herrin to B. F. Wilson, the appellee herein.

Upon the trial, the court on motion of appellee directed a verdict for appellee upon both notes. The jury returned a verdict in accordance with the direction of the court, judgment was rendered thereon, from which judgment this appeal is prosecuted.

Appellant insists upon a reversal of the cause and assigns as error therefor the action of the court in directing a verdict for appellee.

The note of date September 24, 1896, payable to the order of W. J. Curry bears his endorsement of September 2, 1899. This note having matured one year after it is dated, this assignment upon its face, therefore, to Mart L. Herrin, the first assignee, was after maturity and he did not become an innocent purchaser for value. . This note, therefore, was subject to any defenses that might have been made by the maker as against the original payee, W. J. Curry; there being no date to the assignment from Mart L. Herrin to B. F. Wilson, appellee, without proof that the first assignment of September 2,1899, was not the correct date of that assignment, the most favorable presumption that could be made as to the time of the assignment to B. F. Wilson, appellee, would be that the assignment made to him was of the same date, September 2, 1899, which was long after maturity.

The note of date September 1, 1896, payable to Savilla Curry and endorsed by her to W. J. Curry, and by him to O. O. Storm and by him to appellee, B. F. Wilson, there being no date to these assignments, the presumption is that they were assigned before maturity and that appellee took the same as an innocent purchaser for value and any subsequent endorsee, although after maturity, took it with all the rights of the first endorsee as to any defenses which could have been made against W. J. Curry, the first endorsee.

Upon the trial of this cause under the pleas filed, appellant attempted to show that before such assignment and delivery was made to appellee, and before he became owner thereof he was actually notified, and had actual notice that the notes had been paid to W. J. Curry, while he owned them. To this evidence objection was sustained by the trial court and appellant was not permitted to show these facts.

As to the note of date September 24, which bears the first assignment to W. J. Curry, assignee of date September 2, 1899, having been assigned after maturity to appellee, and there being no evidence in the- record that that date was not the true date of assignment, this defense was proper as against this note and should have been permitted.

As to the other note of date September 1, 1896, the note having been first assigned to W. J. Curry, the evidence of appellant which was offered, to show that the note had been paid to W. J. Curry, while he was the owner of the note, was admissible as against appellee, a subsequent endorsee. If W. J. Curry had been suing on this note, the fact that it had been paid to him, although he became an innocent purchaser for value before maturity, would have been a proper defense and if appellee purchased this note with actual notice of its payment before his purchase, then he was not an innocent purchaser for value without notice and could not have taken the note in good faith, and this defense of payment was proper against this note. While the presumption is that appellee, a subsequent endorsee, received it as an innocent holder for value before maturity, this presumption may be rebutted by evidence that appellee received it with actual notice of its payment, but it would devolve upon the appellant herein to show by a preponderance of the evidence such payment and notice to appellee. '

The trial court erred in refusing the evidence offered by appellant to show that the endorsement was after maturity and also the evidence offered to show that appellee had actual notice of payment to Curry. This evidence should have been received and the question submitted to the jury.

It was error in the trial court to direct this verdict ‘ and to render judgment on the verdict and the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


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    Fannie M. Mitchell, Defendant in Error, v. Supreme Lodge of the Modern American Fraternal Order, Plaintiff in Error.
    1. Fraternal benefit societies—how service may he had upon, Service may be had upon fraternal benefit societies pursuant to the provisions of paragraph 5 of the Practice Act which provides for service of process upon incorporated companies.
    2. Judgments—effect of exceeding ad damnum. It is error to render a judgment for a sum in excess of the ad damnum but such error may be cured by remittitur.

    Assumpsit. Error to the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the November term, 1908.
    Affirmed upon remittitur.

    Opinion filed March 30, 1910.
    Wright Bros., for plaintiff in error.
    F. W. Jones, and Dwyer & Dwyer, for defendant in error.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is a suit to recover on a benefit certificate issued by plaintiff in error, a fraternal beneficiary society. The record shows it is organized and doing business under the laws of the State of Illinois; that its principal office is at Effingham, in the State of Illinois. Suit was brought to the October term, 1907, of the Vermilion County Circuit Court. Declaration was filed with ad damnum at $2,000. No summons was ever issued to Effingham county where defendant has its office, and where its principal officers reside. Summons was issued September 26, 1907, to the sheriff of Vermilion county, and returned by him with the following endorsement:

“I have duly served the within summons upon the within named defendant, Supreme Lodge of the Modern American Fraternal Order, by reading the same to A. L. Sommers, agent of the Supreme Lodge of Modern American Fraternal Order, and at the same time delivering to him a copy thereof, the President, Clerk, Secretary, Superintendent, Cashier, Principal and Directors not found in my county, this 27th day of September, 1907.”

No appearance was entered by the defendant and no plea filed, and on December 2/1907, being the 45th day of the October term, 1907, of the Circuit Court, a default was entered against the defendant, and on the 25th day of the January term, 1908, of the Circuit Court, a jury was impaneled and returned a verdict assessing the plaintiff’s damages at the sum of $2,100, upon which verdict a judgment was entered in favor of the plaintiff and against the defendant for $2,100 and costs of suit.

No motion was ever made to set aside or vacate the judgment, but after the term elapsed a writ of error was sued out from this court.

Two questions raised are: one, that there was no service, and no jurisdiction of defendant, and the other, that the judgment, being for more than the demand in the summons, and more than the ad damnum in the declaration, it must for these reasons be reversed.

Paragraph three, chapter 110, Eevised Statutes, Practice Act, is as follows: “The courts of record of the county wherein the plaintiff or complainant may reside shall have jurisdiction of all actions hereafter to be commenced by any individual against any insurance company, either incorporated by any law of this ■ State or doing business in this State. And all process issued in any cause commenced in the county wherein the plaintiff may reside wherein an individual may be plaintiff or complainant and any such company, defendant, may be directed to any county of this state for service and return”.

Paragraph five of the same chapter uses the following language: “An incorporated company may be served with process by leaving a copy thereof with its president if he can be found in the county, in which the suit is brought, if he shall not be found in the county, then by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent or any agent of said company found in the county, and in case the proper officer shall make return upon such process that he cannot in his county find any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent or any other agent of said company, then such company may be notified by publication and mail in like manner and with like effect, as is provided in Sections twelve (12) and thirteen (13) of an act entitled ‘An Act to regulate the practice in courts of chancery, approved March 15, 1872.’ ”

A fraternal benefit insurance company is a corporation and service may be had on such company under the provisions of the fifth paragraph of chapter 110, supra, no exception being made to such a corporation.

The construction of these statutes by our Supreme Court settles the question of service had in this case. Ladies of Maccabees v. Harrington, 227 Ill. 511. The service was good and gave the court jurisdiction of the plaintiff in error.

Proofs of death were made to plaintiff in error and suit was not brought until about eleven months after-death of insured. The certificate provided suit must be brought within one year or be barred.

The service on Sommers as agent and the return thereof by the sheriff in proper' form is conclusive, until proper steps are taken and it is shown that Sommers was not an agent of plaintiff in error and that by such service the trial court obtained no jurisdiction. Kochman v. O’Neill, 202 Ill. 110-112. No attempt was made to do this in the trial court and no explanation is offered why the showing, if it was a fact, was not there made; the question should have been raised below and cannot be raised for the first time after default by writ of error in a court of review. Hardy v. Adams, 48 Ill. 533. ,

The ad damnum in this case was placed at $2,000, the judgment by the trial court was for $2,100. This was error.

“Where the case is contested and a verdict rendered and judgment entered thereon advantage of this error not objected to in the trial court could not be taken in this court. The judgment however in this case was upon a default and it was clear error to enter judgment for an amount greater than the damages claimed by plaintiff in his declaration.” Dorn v. Briggs, 106 Ill. App. 79.

It was error to render judgment for more than $2,000, but this error is not such as to require a re- • versal of the judgment; a remittitur may be made in the court of review, and defendant in error has asked to be permitted to do this. Winslow v. People, 117 Ill. 152-160; Pixley v. Boynton, 79 Ill. 351.

There is no error in the record except the amount of the judgment, and to cure that error, defendant in error will be permitted to enter a remittitur in this court of $100 in twenty days and upon so doing the judgment will be affirmed for $2,000, otherwise the judgment will ' be reversed and the cause remanded.

Affirmed upon remittitur of $100.


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    G. H. Brown, Appellant, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellee.
    1. Common carriers—obligation to deliver merchandise. If a carrier delivers to any other than the true owner it does so at its peril.
    2. Common cabbiebs—what cannot be set-off against claim arising for wrongful delivery. If a carrier is liable for the wrongful delivery of merchandise transported by it, it cannot set-off against its liability a claim against the plaintiff assigned to it after suit brought
    Assumpsit. Appeal from the Circuit Court of Clark county; the Hon. James W. Craig, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and judgment here.
    Opinion filed March 30, 1910.
    Hollenbeck & Connelly, for appellant.
    C. S. Conger, and W. B. Scholeield, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This case was tried below upon an agreed statement of facts by the court without a jury. Finding and judgment for appellant for $51.41, from which appellant brings the cause to this court.

The agreed statement of facts in this case is in substance as follows:

On April 7, 1908, appellant shipped a car of hay by appellee company from Marshall, Hlinois, to Cincinnati, Ohio. The car was shipped and billed to appellant in his own name and to his own order. Attached to the bill of lading was a draft. The bill of lading and draft were sent to a bank at Cincinnati with directions to notify the Union Grain & Hay Co., Cincinnati. This company, when notified, refused to accept the bill of lading and pay the draft, and assigned as reason therefor, appellant owed them on an old account $94.34. As between appellant and the Union Grain & Hay Co., this account was disputed. Upon refusal to accept the draft and bill of lading, appellant sold the hay to C. D. Calvery Co., Terre Haute, Indiana. The bill of lading was delivered to them. Appellee company refused to recognize this sale and assignment or deliver the hay to Calvery & Co., on demand.

The appellee company, on or about the 13th day of .May,* 1908, without any authority or direction from appellant and without taking up the bill of lading, delivered the hay to the Union Grain and Hay Co., which company gave appellee an indemnifying bond against loss for so «doing.

For the purpose of this suit it was stipulated as between appellant and appellee that Brown owed Union Grain & Hay Co. $94.34, being the amount claimed. That on July 27,1908, the Union Grain & Hay Co., for a valuable consideration, assigned its account of $94.34 and all interest therein to appellee. Appellant brought suit to recover for the value of the carload of hay which was stipulated to be $145.75. The trial court allowed the amount of the claim of the Union Grain & Hay Co., so assigned to appellee, $94.34, and gave judgment for the balance, $51.41, in favor of appellant. By shipping this car of hay to his owm order, appellant retained the control thereof, and as between appellant and appellee the property remained his and the only condition upon which it could properly and legally be delivered by appellee was upon "the presentation of the bill of lading. It is the duty of a common carrier to deliver property either to the consignee or the consignor. If delivered to the consignee, it must be on the terms specified, but if delivered otherwise, it must deliver to the true owner. By undertaking to deliver to any other party, it does so at its peril. It devolves on it to show that the party to whom it is delivered was the owner. American Express Co. v. Greenhalgh, 80 Ill. 69; Commercial Bank v. Railway Co., 160 Ill. 406. The delivery of this hay to the Union Grain & Hay Co. was a wrongful delivery and for which the appellee is liable to appellant for • the value thereof, and the attempt by appellee to take an assignment of the claim alleged to be due the Union Grain & Hay Co., is of no avail to appellee. This claim was merely a chose in action and one which could not be assigned to appellee and claimed as a set-off against appellant. The assignment of this claim to him was after suit had been brought by appellant to recover for the wrongful delivery of this ear of hay. At the time of suit appellee had no claim against appellant and the assignment in this case having been after suit was brought and solely for the purpose of attempting to set-off the claim against appellant’s demand, it was not a proper set-off; the rule being, that in pleading a set-off the defendant assumes the position of plaintiff and is required to prove the same facts that he would be required to prove if he had brought an original action on his demand. The court erred in permitting this set-off as against appellant’s demand.

Numerous propositions of law were submitted to the trial court which, so far as held, were properly held by it. The court held the following among other propositions :

“The court holds as a proposition of law, that as Mr. Brown, the plaintiff in this case, had taken the bill of lading in his own name and to his own order, that the defendant railroad company could not, under the circumstances, legally deliver the carload of hay for which the bill of lading was issued to any other than Mr. Brown, or some one authorized by Brown to receive the hay, and that when the railroad company, the defendant in this case, delivered the carload of hay to the Union Grain & Hay Company without any authority from Mr. Brown and without then presenting the bill of lading, that the defendant was liable to Mr. Brown for the conversion of the carload of hay.
“The court holds as a proposition of law, that as the C. C. C. & St. L. B. B. Co., defendant, had accepted the carload of hay for shipment and that the bill of lading was drawn to the order of Brown, the plaintiff, the duty devolved upon the railroad company in this case to prove that it had delivered the goods to the right owner.
“The court holds as a proposition of law that the O. C. C. & St. L. Railway Company, defendant, had no right under the law, after suit was brought by Mr. Brown against it in the justice of the peace court, to receive this assignment from the Union Grain & Hay Company for the purpose of off-setting it against Mr. Brown for any damages due him because of the delivery of the car of hay by the said C. C. C. & St. L. Railway Company to the Union Grain and Hay Company.”

But the judgment in this case is rendered in direct opposition to the holdings of the trial court on the propositions of law.

The counsel for appellant argue that the court erred in refusing to hold propositions of law submitted, numbers two, four and nine. It is sufficient to say that the questions raised by propositions two, four and nine are embodied in the propositions which were held as the law by the trial court and the court committed no error in refusing them.

The stipulation of facts in this ease shows an absolute right on the part of the appellant to recover the value of this car of hay and the trial court should have found a judgment for him for that amount and costs against appellee.- Upon this stipulation no other judgment can be rendered and the judgment of the trial court in allowing the claim of set-off to appellee is hereby reversed and a judgment rendered in this court for the amount which should have been rendered in the trial court against appellee, $145.75, and costs of suit; and execution awarded out of this court and the clerk will enter such judgment herein.

Final judgment in this court without remanding.

Reversed and judgment here.


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    Amy O. Schriner, Appellee, v. Robert Schriner, Appellant.
    1. Separate maintenance—when lies. Unjust accusations by a husband of undue intimacy on the part of his wife with other men and a continued repetition of such accusations is sufficient and adequate grounds to support a bill for separate maintenance.
    2. Separate maintenance—what does not bar right. The signing of a contract by a wife by which certain property interests are adjusted between her and her husband, does not bar a right to separate maintenance.
    3. Separate maintenance—when award of alimony not excessive. An allowance of $20 per month, held, not excessive where it appeared that the husband was possessed of a farm of the value of eight or nine thousand dollars, encumbered for $3,500, and was also possessed ■of personal property of the value of two or three thousand dollars, was able-bodied and capable of earning a good living.
    Separate maintenance. Appeal from the Circuit Court of Coles ■county; the Hon. James W. Craig, Judge, presiding. Heard in this ■court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    B. Gr. Hammond and H. A. Neal, for appellant.
    A. O. Anderson and C. C. Lee, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This was a bill filed by appellee against appellant for separate maintenance. The bill avers marriage, living together from 1890 to January 1, 1908; avers that the defendant accused complainant of being unlawfully intimate with divers persons; that he repeated such charges to divers persons in the neighborhood and threatened to kill complainant and himself; that complainant hid the revolver and defendant then threatened to shoot her with a shot gun; that she was compelled to leave and go to her sister’s house and hide; that people in the neighborhood got out and watched him to prevent him from injuring complainant and himself; that defendant in the presence of several witnesses threatened to kill complainant; that on account of the conduct of the defendant in accusing complainant of adultery and the threats made she could not safely reside with the defendant.

The answer of defendant denies all the material allegations of the hill as to accusing complainant of adultery or of threats against her.

A decree was rendered for complainant allowing her separate maintenance and decreeing that she be paid $20 per month.

Errors assigned are the court erred in rendering a. decree in favor of complainant and that the amount allowed as alimony is excessive.

Upon the question that this decree is not supported by the evidence and that the evidence does not prove-the allegations of the bill, while the evidence-is somewhat conflicting, an examination of the evidence of the complainant, together with that of her father and mother, who testified in her behalf, and the admissions made by appellant in his cross-examination, can leave no room for doubt upon the question that appellant was accusing his wife with undue intimacy with other men, and that he had told various parties that she was unlawfully intimate with other parties, and that he had said that by reason of these matters he would not live with her.

Appellant denies that he made any accusations, against his wife, accusing her of unchastity, but the evidence discloses that he did go to her father and mother and inform them that appellee was unlawfully intimate with George McDavid and that unless she-ceased such practices that he would no longer live with her. The record further shows conclusively that he did so accuse her and inform various parties of the circumstances which are alleged to have taken place-in the lane along a public highway and which is claimed to have been evidenced by the tracks along the highway and in the snow at the point it is alleged these two parties had stopped.

The evidence of appellant, and the witnesses who testified concerning the facts and circumstances in connection with this matter as seen by them, for the purpose of showing his inferences were true, although no one saw appellee or the party at the place she is alleged to have been, refutes his denial that he did not accuse his wife of improper relations with other men; and the question of the preponderance of the evidence and what reliance could be placed upon this evidence was for the chancellor who heard these witnesses and saw them testify.

These accusations, if untrue, fully warrant the appellee in living separate and apart from her husband and the fact that a contract was drawn up by the attorneys, at his request, disposing of their personal effects and property, between appellant and appellee and which was signed by her, did not in any way bar her from asserting her rights by an action for separate maintenance. The contract is silent upon any agreement or intention to separate other than can be inferred by the division of the property.

While the evidence is conflicting as between appellee and appellant in regard to the threats made and exhibitions of the revolver, and of the statements made by him as to his threatening to kill her, the learned chancellor who heard this case below and saw the witnesses testify was better qualified to pass upon the veracity of the parties testifying and" to determine whose evidence should be given the greater weight. The rule in chancery cases is, that where the evidence is conflicting and the witnesses have been examined orally in open court, before the finding of the chancellor should be reversed, the evidence must be clear and convincing that the finding is not warranted. This rule is announced in Ward v. Ward, 103 Ill. 482; Johnson v. Johnson, 125 Ill. 510, and Porter v. Porter, 162 Ill. 400. We cannot say that the finding is against the weight of the evidence in this case or that it is not supported by it.

Our Supreme Court has held in numerous cases that unjust accusations by a husband of undue intimacy on the part of his wife with other men and a continued repetition of these accusations is sufficient and adequate grounds to maintain a bill for separate maintenance on the part of the wife. Ross v. Ross, 69 Ill. 573; Porter v. Porter, 162 Ill. 400; Johnson v. Johnson, 125 Ill 510.

The allowance of twenty dollars a month by the chancellor to appellee is not excessive. Appellant was possessed of a farm to the value of eight or nine thousand dollars with encumbrance of thirty-five hundred dollars. He was possessed of personal property to the palue of two or three thousand dollars, was able-bodied and capable of earning a good livelihood. We do not think the allowance was excessive and there being no error in this record, the decree rendered is affirmed.

Affirmed.


text:
    Edward Stumpf, Appellee, v. Corn Products Manufacturing Company, Appellant.
    1. Master and servant—when former not liable. A master is not liable for an accidental mis-step by Ms servant.
    2. Master and servant—when doctrine of assumed risk applies. If a servant knowing of the conditions which resulted in his injury, continued at his work for a considerable period without complaint, the doctrine of assumed risk applies and bars a recovery.
    Action in case for personal injuries. Appeal from the Circuit Court of Tazewell county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed.
    Opinion filed March 30, 1910.
    John A. Bloomingston, Stevens & Horton and J. M. Elliott, for appellant.
    O. L. Oonder, Balph Dempsey and W. B. Curran, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the ■court.

This is an action by appellee to recover for injury received while working for appellant. The negligence charged in the declaration is a failure to provide appellee with a reasonably safe place in which to work. Judgment below was for $1,500.

The declaration consists of three counts and they are substantially alike. Appellant was engaged in the operation of a factory for the manufacture of glucose and other corn products at Pekin, Illinois. Appellee had been employed by appellant for some time in various capacities around the factory. His employment at the time he was injured was that of an oiler and his duty was to see that the machinery was kept properly oiled.

The portion of the machinery at which appellee was injured consisted of a jack shaft upon which a number of pulleys were running and this shaft was operated from an electric motor by means of a belt, the shaft connecting by belts with mills in the factory for grinding corn.

The base of the jack shaft in question «was two timbers 10x10 inches, bolted on the floor. They were placed about eighteen inches apart. On these timbers were mortised and bolted cross timbers, upon which the shaft rested and revolved in boxes there constructed. The base for this jack shaft was placed by the side of a platform or landing of a stairway, coming from the floor above. This platform or landing of the stairway was four feet above the floor and it rested at one end on 4x4 timbers, one at each corner. It extended the full length of and parallel to the jack shaft ' and the other end was fastened to the wall of the building. The timber upon which the jack shaft rested and nearest the platform was ten and one-half inches from the post supporting the platform. There were braces or bars upon the under side of this platform.

In order to reach the parts of this jack shaft which required to be oiled, appellee was required to go upon the 10x10 inch timber, which was one of the base timbers of the jack shaft and near the platform. This was the only means of access.

The contention of appellant being the injury received was one of the risks assumed by appellee in his employment; that there was sufficient light at this point so the shaft might easily be seen and appellee knew there were no guards; that whatever danger existed, by reason of the condition of affairs at this point, was such as could be seen by appellee at all times; that he had been in the employ of appellant as oiler for something over six days and had oiled’ this same machinery a great number of times every day during that time and that by continuing to do this work, in the condition in which it was, he assumed all risk of an injury occasioned thereby.

The record in this case discloses without question that appellee performed his duties as oiler upon this jack shaft for six consecutive days, and having become familiar and acquainted with the surroundings, the location of the platform and jack shaft and the means it was necessary to take or adopt in order to reach the portions of this jack shaft which required oiling, he continued in this employment for this length of time and all of the defects, if any existed, being patent and readily discernible to an ordinary person, using his usual faculties for avoiding the injury to himself, he continued in the employment and reached this machinery by going on this 10x10 inch timber, the only manner in which it could be reached, on all occasions when he was required to oil same.

The pulleys upon this shaft, at least one of them, was so large that it occupied the entire space of the base of the jack shaft and at the point where it revolved, and these 10x10 inch timbers were trimmed' at the edges to permit it to revolve between them. It was while attempting to oil the parts of this jack shaft that appellee in passing along and upon this 10x10 inch timber and while attempting to pass the large pulley upon this shaft, that his foot slipped, he fell and was caught in this pulley which was revolving at from five to seven hundred revolutions per minute. His injury -consisted of a dislocated hip, dislocated knee, sprained or broken ankle and numerous pieces of bone were required to be removed from his limb. The jacket shaft and pulley were not guarded in any way and there were no cups upon the parts to be oiled.

The jack shaft was in such a position that there was sufficient light for appellee to see any danger thát existed, by reason of its construction, either in the manner of construction or the proximity to the platform where it was placed.- It was not necessary to have guards placed over these pulleys for the purpose of informing anybody that they were dangerous. It was apparent to any ordinary person that a pulley, revolving at the rate of from five to seven hundred revolutions per minute, was a dangerous piece of machinery to come in contact with and the ordinary instinct of self-preservation would compel a person to keep away from it.

The cause of this injury as shown by appellee in his -own testimony was that he slipped from this 10x10 inch timber and fell upon the revolving pulley.

An employer cannot be held responsible for an accidental mis-step of a servant. If the timber at the point where he slipped had become oily or slippery, it was his duty to do the oiling of this machinery and pass over it a great many times each day, and if the beam became slippery by reason of oil, it was a fact which was more easily, more readily discernible to him and one which he had greater opportunity to know and ascertain than the employer.

' The facts as herein set forth are virtually undisputed in this record. Appellee knew of all these conditions, continued to work and without any complaint whatever, and under the rule as laid down by the Supreme Court of this state in the cases of Montgomery Coal Co. v. Barringer, 218 Ill. 329, Karr Supply Co. v. Kroenig, 167 Ill. 560, Howe v. Medaris, 183 Ill. 288,. and by the Appellate Court of the First District in Steffen v. Illinois Steel Co., 140 Ill. App. 551, which follows the rule laid down in the above cases, appellee assumed the risk, and the injury occasioned as shown by the facts in this case was one of the risks assumed by his employment and there can be no recovery in this action.

Upon the view taken by the court of this case that the risk was one assumed by the appellee and there can be no recovery, it is unnecessary for the court to pass upon the other questions raised upon this record.

The finding of this court being contrary to the verdict of the jury, the clerk will incorporate in the judgment the finding that the injury was one of the ordinary risks assumed by appellee in his employment and the judgment will be reversed without remanding.

Reversed.


author: Mr. Presiding Justice Higbee

text:
    Harry Carlock, Appellee, v. Illinois Central Railroad Company, Appellant.
    Personal injuries—what essential to recovery. In order to entitle a plaintiff to recover in an action for personal injuries he must establish, first, the fact that the injury was caused by some act of ■ negligence on the part of the defendant, and, second, that he, at the time of the injury, was in the exercise of due care and caution for his own safety
    Action in case for personal injuries. Appeal from the Circuit Court of Fayette county; the Hon. S. L. Dwight, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    Rehearing denied March 23, 1910.
    Brown & Burnside, for appellant; John Gr. Brennan, of counsel.
    Albert & Matheny and E. B. Spurgeon, for ap- , pellee.
   Mr. Presiding Justice Higbee

delivered the opinion ' of the court.

Appellant prosecutes this appeal to review the record in a cause, wherein appellee, a minor 16 years of age, obtained a judgment against it of $1,000 for injuries received by him while at work on a gravel train on appellant’s railroad. There is very little controversy as to the facts in this case, which are substantially as follows:

In the latter part of July, 1907, appellee commenced working for appellant, as one of about 25 men, called the “extra gang,” employed in surfacing the railroad track, and in that connection distributing gravel along the same. In unloading the gravel train, the doors along the sides of the cars were opened and a plow in the shape of a V was pulled forward from the car next to the caboose through the cars, the ends of which were opened, by means of a wire rope wound around a drum turned by a stationary engine on the car next the locomotive engine. As the plow was pulled forward, gravel would be forced through the side openings and as it passed from one car to another, considerable quantities of gravel would fall between the ends of the cars. The plow, however, did not thoroughly remove all gravel and stone from the cars, and it was necessary for some of the men of the “extra gang” to follow after and remove the same, so that the sides of the cars could be again closed. Appellee had assisted in unloading gravel trains on five or six occasions, prior to the time he was injured. On October 9, 1907, the gravel train was sent to Eamsey, Illinois, arriving there about noon. On account of a disabled car ahead of it, the plow car, which was on a switch, could not be gotten out and attached to the gravel train until evening. When everything was in readiness for the unloading of the train, the foreman instructed certain men of the gang to attend to the drum and engine, others to follow the train on a hand car and remove rocks and boulders that might remain on the track, and still others, among whom was appellee, to get upon the gravel cars, open the doors and then follow the plow to remove such material as it failed to unload. The train, which was composed of an engine, 25 gravel cars, a plow car and a caboose, at about 6:30 P. M., pulled down to the place where the gravel was to be unloaded. The track superintendent and the foreman were both riding on the train with lanterns, the only other lantern being one carried by the conductor. After some five cars had been unloaded and while the train was going from 5 to 7 miles an hour, appellee, who was engaged in the work assigned to him, fell between two of the cars. His leg was run over and crushed so that he suffered great bodily pain and is now a cripple.

Witnesses for appellant testified that the night was clear and starlight, while others for appellee swore that it was a very dark night. Appellee testified that it was “awful dark” and that he could only see five or six feet to distinguish anything; that there were no lights and no ends in the gravel car; that he went along holding with his hands to the sides of the car, scooping off gravel and kicking off rocks; that he was watching for the end of the car, feeling along with his feet but could not see the space between two cars; that the cars seemed to run kind of rough and bumpy; that the first thing he knew he was off on the ground, but did not know how he got there; that he thought he fell between the cars; that the nearest lights were on the plow about two cars away; that he never helped unload a train at night but once before and then some of the men had lanterns.

After appellee was injured the unloading was discontinued and the train sidetracked until the next morning, when the balance of the load was removed.

Counsel for appellant make no complaint in regard to the instructions or the rulings of the court below upon the admission or rejection of evidence but rely for a reversal of the case solely upon the proposition that the evidence discloses no cause of action.

The only question presented for our consideration is therefore one of fact. It was necessary, as stated by appellant, that in order to entitle appellee to a verdict, he should first establish the fact that the injury was caused by some act of negligence on the part of appellant, and second, that he at the time of the injury was in the exercise of due care and caution for his own safety. Incidental to this was the question whether the injury of appellee was due to one of the risks incident to his employment, which he assumed. These questions were, under the circumstances of this case, all questions of fact for the jury which have been decided in favor of appellee.

It is unnecessary, nor would it be profitable, to encumber this opinion with a lengthy discussion of the evidence introduced and its effect, and we content ourselves with saying that it was sufficient to warrant the jury in finding the verdict they did.

Affirmed.