text:
    Flat Top Fuel Company, Defendant in Error, v. George W. Benjamin, Plaintiff in Error.
    Gen. No. 15,244.
    Municipal Court—when affidavit of merits sufficient. If an affidavit of merits is interposed by one defendant upon behalf of himself and the other defendant or defendants, a subsequent dismissal of the action as to the defendant filing such affidavit leaves the same for the benefit of the remaining defendant or defendants, it appearing that the defendant who made such affidavit might have been liable over in the event of the judgment being rendered against the other defendant or defendants.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed February 14, 1911.
    Statement by the Court. The writ of error in this case brings before us. for review the action of the Municipal Court of Chicago in entering a judgment against plaintiff in error for want of an affidavit of merits.
    The Flat Top Fuel Company (defendant in error) brought an action of the fourth class in the Municipal Court against one C. B. Ebbert, as maker, and George W. Benjamin (plaintiff in error), as indorser, of fifteen promissory notes, all made and. all made payable in Chicago, to the order of the Fuel Company, and aggregating $869.29. Plaintiff filed with its statement of claim the required affidavit.
    The written appearance of the two defendants was duly entered by their attorney, who also filed for them the affidavit of defendant Ebbert, stating that he verily believed both he and Benjamin, and each of them, had a good defense upon the merits to the whole of plaintiff’s demand; that said defense was, in substance, that the plaintiff was a foreign corporation doing business in Illinois without a license, and that the indebtedness evidenced by the notes sued on grew out of said business. Accompanying this affidavit of merits was notice of a set-off by Ebbert.
    Immediately preceding a trial by jury, the court denied a motion for judgment by default against defendant Benjamin for want of an affidavit of merits. A trial was then had, at which all evidence introduced for the defendants, and all objections made and exceptions taken, were on behalf of both defendants. The jury rendered a verdict in favor of the plaintiff, which, upon motion of the defendants for a new trial, was set aside, and a new trial was ordered, whereupon plaintiff dismissed as to Ebbert, and subsequently the court entered judgment against Benjamin for want of an affidavit of merits.
    Fred A. Bangs, for plaintiff in error.
    Parker & Hagan, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

In this case, there was an affidavit of merits filed by one of two defendants, stating that affiant verily believes both himself and the other defendant, and each of them, has a good defense upon the merits to the whole of plaintiff’s demand, and then setting up such defense, in detail.

The question here to be decided is whether, upon the dismissal out of the case of the defendant making it, such an affidavit ceased to be sufficient for the remaining defendant.

We think Ebbert’s affidavit of merits was clearly on behalf of himself and Benjamin, and that it did not lose its efficacy and protection to Benjamin by the plaintiff dismissing Ebbert out of the case.

The purpose of the statute and of the rules of courts in requiring affidavits of the defendant, or his agent or attorney, disclosing a defense, is to so provide that plaintiff shall pot be delayed in enforcing a claim unless the defendant or some one interested with or for him shall disclose a meritorious defense.

In this case Ebbert had an interest with Benjamin in the defense of the action, and that interest did not cease when he was dismissed out of the suit. Benjamin was only an indorser upon the notes sued upon, and would have had a remedy over against Ebbert, and, Ebbert having had notice of the suit, under the authority of Drennan v. Bunn, 124 Ill. 175, he would have been bound by a judgment against Benjamin.

Defendant in error contends that the affidavit was insufficient because by the dismissal of Ebbert out of the case the action stood as if it originally begun against Benjamin alone, and that the affidavit was insufficient because it did not purport to be made by the defendant (Benjamin), or his agent or attorney.

Upon the record in this ease we think that Ebbert was the agent of Benjamin in the premises, and that the affidavit was entirely sufficient.

Judgment reversed and cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Baldwin

license: Public Domain

text:
    Laura H. Howard, Plaintiff in Error, v. Julia Wagner et al., Defendants in Error.
    Gen. No. 15,250.

      Evidence—when cross-examination improper. It is error to permit cross-examination as to a transaction which was not shown to have been authorized or binding upon the party against whom it was elicited.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed February 14, 1911.
    Statement by the Court. Plaintiff in error brought an action in forcible detainer in the Municipal Court of Chicago against defendants in error, to recover possession of certain premises. A trial was had before a jury, which found in favor of defendants.
    Defendants were in possession of the property under a contract of purchase from the grantor of plaintiff. Certain payments, due under the contract, not having been made, a demand in writing for possession was served upon defendants, and this demand was followed by the suit.
    Plaintiff made her case, and clearly established her •right to recover, and no evidence was offered on behalf of the defense. The only attempt made by the defendants in error to establish any defense consisted in developing a theory upon cross-examination of one Boach, a witness for the plaintiff, who, upon cross-examination, testified to an agreement between himself and the defendants in error relating to a purchase and sale of an interest in a houseboat,—by the terms oí which Boach was to sell the houseboat, and, after deducting the amount due himself, pay the balance upon the contract for the real estate in question, and he further stated that the houseboat had not been sold. He further testified, also upon cross-examination, that, on the day the cause was called for trial, one of the defendants offered to pay him $20 on account of the real estate contract relating to the premises in question, which payment was refused unless the defendants should pay the court costs, etc.
    To all this matter, thus brought out in cross-examination, plaintiff in error objected that it was not anywhere shown that Boach had any authority from plaintiff to make the houseboat contract, or in any manner bind her in relation thereto. In fact there was no evidence tending to show that she knew anything about it.
    Robert F. Kolb, for plaintiff in error.
    No appearance by defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

Plaintiff having made her case, and there being nothing in the record to show any authority on the part of Boach to make for plaintiff any agreement relating to the houseboat, nor, indeed, that he represented her in any manner, the court erred in permitting Boach’s cross-examination concerning the houseboat, and it should have given the requested peremptory instruction to find the defendants guilty.

Judgment reversed and cause remanded for a new trial.

jReversed and remanded.


text:
    City of Chicago, Defendant in Error, v. Harry Meyers, Plaintiff in Error.
    Gen. No. 15,286.
    Appeals and ebbqbs—what not subject to review. Orders entered after the issuance of a writ of error are not subject to review.
    Error to the Municipal Court of Chicago; the Hon. Michael F. Girten, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed February 14, 1911.
    Charles E. Erbstein, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Baldwin

delivered the opinion of the court.

Plaintiff in error was arrested upon a charge of violating section 1454 of the Bevised Municipal Code of Chicago. He waived a trial by jury, and on the 3rd day of December, 1908, after hearing the testimony of both sides, the trial judge found him guilty, and imposed a fine of $100. From that judgment he sued out of this court a writ of error on December 30, 1908. It appears, also, that, on the 31st day of December, 1908, the court below entered a fine of $100 against the plaintiff in error in the same proceeding.

The only testimony offered against plaintiff in error at the trial was that of a street car conductor and of a policeman. The former testified that on November 25, 1908, at 6:50 a. m. Harry Meyers, with two other men, got on his car at the Lake Shore depot, and got off at State street; that subsequently they came back and again rodó on his car from the same depot to Wentworth avenue; that he notified a policeman that there were three suspicious looking men at the Lake Shore depot, who were riding on the cars for a few blocks. None of the passengers on the car complained of being robbed, but the witness suspected the men were pickpockets.

The policeman testified that at about 8 o’clock on that morning he received a message that there were three suspicious looking men in front of the Lake Shore depot, and that he, with four other officers, went to the depot, where they found plaintiff in error and two others standing inside the station. Upon being asked what they were doing, they said they were waiting for a car. It was raining at the time, and they said they did not wish to go out in the rain, but desired to wait inside until a car came along. They were thereupon arrested and taken to the police station.

For the defense, each of the three persons arrested testified, each giving his residence in Chicago, including the street number. Two of them claimed to be bar tenders, and all claimed to have arrived from Toledo, Ohio, that morning, and Meyers testified that he came to Chicago for the purpose of spending Thanksgiving with his folks, This was all the testimony heard,

The city ordinance which it is charged was violated, is not set out in the record. Under the provisions of the Municipal Court act that court was bound to take judicial notice of the city ordinances. Without deciding whether or not this court is bound to take judicial notice of such ordinances in cases coming to it from the Municipal Court, we feel clear that the evidence was entirely insufficient to establish the offense charged, and that, at most, it only justified a suspicion of guilt.

For want of sufficient evidence to sustain the charge against plaintiff in error, the judgment of the court below must be reversed.

The writ of error in this case, issued December 30, 1908, does not bring before us for review any order entered in the court below after that date.

Reversed and remanded.

Me. Justice Clark did not participate in the decision of this case.


author: Pillsbury, J.

text:
    Chicago, Rock Island & Pacific Ry. Co., v. John Barrett.
    1. Common carrier — Treatment op passengers. — In every contract of carriage there is a stipulation implied by the law that the passenger shall be humanely treated, and a guarantee that the servants of the carrier, engaged in the performance of their master’s contract, shall not unjustifiably assault or beat or otherwise maltreat the passenger while the master sustains such contract relations to him, and the master must respond for any breach of such contract committed by his servants, and this regardless of the servant’s motive in committing the act violating the contract.
    2. Misconduct op passenger — Injury by conductor — Pleading.— While (he carrier may rescind the contract of carriage for certain misconduct of passengers, the penalty for such misconduct must not be enforced unreasonably or oppressively. Where, by its plea, defendant relied upon the alleged fact that the conductor was endeavoring to enforce the authority in him vested by the statute, to remove the appellee from the train for his misconduct during the trip and for attacking him at the place of destination, and made the allegation that no unnecessary damage or injury was done to appellee, a material averment under the statute, if this averment fails to be established by the proof under the replication de injuria, the whole defense made by the plea must fail.
    3. Severance op relation op passenger and carrier. — The severing of the relation of carrier and passenger is not necessarily dependent upon the fact that the passenger upon reaching his destination actually left the car, nor on the other hand does the mere fact that the passenger had sufficient time and opportunity to leave the conveyance and failed to do so operate in every instance as a severance of the relation. If a passenger having time and opportunity to safely leave the train, remains in the ear for the unlawful purpose of assaulting the servants of the carrier, he must be considered as having abandoned the protection afforded him by his contract. As in this case, the disputed fact whether the appellee, when assaulted by the conductor, still occupied the relation of a passenger, was made by the court’s instruction to depend upon the question whether he had actually left the car or not, and appellant’s tenth instruction upon the point refused, it was error.
    4. Damages. — This court is of opinion that the verdict for $300 damages is not excessive, if the jury found the conductor made the attack upon the passenger without provocation; but if, as claimed by the carrier, the passenger unlawfully attacked the conductor to carry out a threat to injure him, and the verdict returned was based upon the fact that the conductor used excessive force in repelling the attack, this court is of opinion that a much smaller amount would satisfy the law.
    Appeal from the Circuit Court of Grundy county; the Hon. F. Goodspeed, Judge, presiding.
    Opinion filed January 16, 1885.
    This action was instituted by the appellee to recover damages for injuries received by him from an alleged assault and battery committed by the conductor of the appellant upon him.
    The declaration contains two counts, and as shown by appellant’s abstract, is substantially as follows:
    First count alleges ownership of railroad for the purpose of carriage of goods and passengers from Seneca to Morris, with certain trains running thereon under the care of divers servants of the defendant, who were engaged in running the same by the railroad aforesaid. That the plaintiff on the day aforesaid, March, 1882, at Seneca, became a passenger from thence to Morris for a certain reward to the defendant paid by the plaintiff; avers that it was the defendant’s duty while running its trains as aforesaid, to have and keep servants who would care for its said passengers and treat them respectfully, and in no wise assault or ill-treat them. Yet defendant did not regard its duty in that behalf, but, on the contrary, plaintiff avers that while the plaintiff was in and upon said train as a passenger as aforesaid, and while plaintiff was with all due care, dilgence and peacefulness, being so conveyed in defendant’s train, defendant, by its servant, to wit, the conductor, engaged and employed in and about said trains, at the county of Grun. dy, with a certain wooden stick which he had in his hand, knocked him down upon the floor of said car, inflicting a dangerous wound upon his head, and while so down upon the floor, again struck plaintiff divers violent blows about the body, whereby plaintiff became greatly hurt and wounded, and became sick, sore, lame and disordered, and so remained, and was prevented from performing and transacting his business, and was obliged to lay out divers sums of money, amounting to the sum of §500, in getting cured, to the great damage of the plaintiff, and against the peace of the people of the State of Illinois. Therefore plaintiff says he has sustained damage to the sum of five thousand dollars.
    Second count alleges ownership of railroad and entrance of plaintiff upon train to be carried as a passenger from Seneca to Morris, substantially as in first count; avers that it was the defendant’s duty to carry its passengers upon said train for hire, in safety, and to protect them from the misconduct of the servants of the defendant, and also to employ in and about the operatiou of said train, servants who would treat its passengers respectfully, and care for them while upon said train, and in no wise assault, abuse or ill-treat them. Yet defendant did not regard its duty in that behalf, but the plaintiff avers that while the plaintiff was in and upon the train as a passenger, being carried for hire and reward, and was, with due-care and diligence on his part, being so conveyed, the defendant at the county of Grundy, by its servant, to wit, the conductor, with great force and violence, assaulted plaintiff, and with a certain stick of wood which he had in his hand then gave to the plaintiff divers blows upon the head and body, inflicting upon him divers deep and dangerous wounds, to his damage, as in the first count alleged, in the sum of five thousand dollars.
    The defendant pleaded the general issue and a special plea as follows:
    Defendant says: Actio non, because it avers that at the time when, etc., the plaintiff came upon defendant’s train

      to be carried as a passenger from Seneca to Morris, and while upon said train and being so carried, and during his passage from Seneca to Morris, and after the arrival of the train at Morris, said plaintiff, instead of conducting himself peacefully and properly, as was his duty to do, used abusive, threatening, vulgar and obscene language, and in the presence and hearing of the passengers upon said train, some of whom, to wit, three, were ladies, and occupied the same car in which plaintiff'was being carried; and the said plaintiff so violently and indecently conducted and behaved himself as to make his presence offensive to the passengers then and there in said car; and after the arrival of said train at Morris, said plaintiff, in a loud and violent and menacing manner, threatened to commit bodily injury upon the conductor, and refused to leave said train upon its arrival at Morris, but continued thereon and in said car for the purpose and with the intent of, then and there, in the presence of the passengers, to commit an assault upon the conductor, and did then and there, with great violence, assault the conductor, contrary to the statute in such case made and provided; wherefore the conductor did then and there defend himself against the plaintiff as he lawfully might, and did then and there, as it became his duty to do in pursuance of the statute in such case made and provided, eject and expel plaintiff from said car and train, and in so doing did necessarily and unavoidably a little beat, bruise and wound the said plaintiff, doing no unnecessary injury or damage to the plaintiff; and avers that" if any injury happened to plaintiff, the same was occasioned by the said assault so made by the plaintiff on the conductor, which are the same supposed grievances and trespasses in said declaration mentioned; and this the defendant is ready to verify.
    To this plea the plaintiff filed the replication de injuria upon which issue was joined.
    Upon the trial below the plaintiff’s testimony tended to show that he took passage upon a freight accommodation train at Seneca to be carried to Morris; that he had no ticket and gave the conductor a dollar, and received in change sixty cents. Upon arriving in Morris and as he was going out of the car he told the conductor that he had charged too much fare; the conductor denied this and then turned around and struck the plaintiff on the head with a club, knocking him down. That the blow made him unconscious for some time and has seriously impaired his health and still causes him great pain, and he is unable to do the amount of work he formerly could.
    The evidence of the defendant tended to show that the plaintiff had an opportunity to obtain a ticket at Seneca, that his companion, one Gash, did buy his ticket and advised the plaintiff also to do so, as did the ticket agent, but he refused or neglected to get one. That Cash and the plaintiff were both drunk when they were about to board the train; the conductor asked them if they had tickets, and Barrett replied he had not and did not propose to get one, and was then told he would have to pay ten cents more; that it was a rule of the company for the conductors to collect ten cents above the price of the ticket where the fare was paid on the train; that the price of a ticket from Seneca to Morris was thirty cents and the fare was forty cents where no ticket was purchased. The plaintiff when the conductor was collecting fares held a silver dollar in his hand, and before he would give it to the conductor, demanded the extra ticket change which the conduct- or refused to give, but ordered the brakes set to stop the train for the purpose of putting the plaintiff off; and thereupon the plaintiff gave him the dollar and received the sixty cents in change. That during the run to Morris, Cash and the plaintiff were very disorderly in their conduct, and the plaintiff used profane and obscene language in the presence of the passengers, several of whom were ladies, and threatened to “ slug ” the conductor when he arrived at Morris, if he did not return him the ten cents, and that this threat was communicated to the conductor and he was warned to look out. Upon the arrival at Morris and after the train had stopped, the plaintiff and Cash went to the rear door of the caboose, and one of them, believed to be Cash, went out upon the platform and the plaintiff close behind him as far as the car door at least. That then instead of leaving the train as they had opportunity to do, they turned about, and the plaintiff went toward the conductor, who was then approaching from the front end of the car, and with an oath demanded the ten cents; and upon the conductor refusing to return it he says, “ I will have it or have blood,” and making a stroke with his fist at the conductor, who then jumped back, picked up a stick used about the brakes, and gave the blow of which complaint is made. The plaintiff below recovered and the defendant appealed.
    Mr. Thomas F. Withrow and Mr. J. C. Hutchins, for appellant;
    that plaintiff was not a passenger at the time of the assault, and therefore not entitled to recover, cited C. & E. I. R. R. Co. v. Flexman, 103 Ill. 546; Imhoff v. C. M. & St. P. R. R. Co., 20 Wis. 346; C. B. & Q. R. R. Co. v. Boger, 1 Brad well, 472.
    It is as much the duty of the passenger to conform to reasonable rules of all kinds as it is the duty of the carrier: W. St. L. & P. Ry. Co. v. Rector, 104 Ill. 302; C. B. & Q. R. R. Co. v. Bryan, 90 Ill. 126; L. M. R. R. Co. v. Wetmore, 19 Ohio, 110; Brown v. M. & C. R. R. Co., 7 Fed. Rep. 51; C. B. & Q. R. R. Co. v. Griffin, 68 Ill. 499; P. Ft. W. & C. Ry. Co. v. Hinds, 53 Pa. St. 512; Churchill v. O. & A. R. R. Co., 67 Ill. 393.
    As to the duty of passengers to get off at their destination within a reasonable time: Straus v. Kansas City R. R. Co., 6 Am. & Eng. R. Cas. 384; W. St. L. & P. Ry. Co. v. Rector, 104 Ill. 296; T. W. & W. R. R. Co. v. Baddeley, 54 Ill. 19; Commonwealth v. R. R. Co., 1 Am. & Eng. Cas. 459; Dawson v. Louisville R. R. Co., 11 Am. & Eng. Cas. 134; Thompson on Carriers, 227.
    Messrs. Haley & O’Donnell, for appellee;
    that a corporation is liable for the willful tortious acts of its servants while in discharge of their duties, cited Chicago City Ry. Co. v. McMahon, 103 Ill. 485; N. W. Ry. Co. v. Hack, 66 Ill. 238; C. & E. I. R. R. Co. v. Flexman, 103 Ill. 546; Pendleton v. Kinsley, 3 Cliff. 416; Thompson on Carriers, 352; Craker v. C., etc., R. R. Co., 36 Wis. 657; Rounds v. D., etc., R. R. Co., 64 N. Y. 129; Hanson v. European R. R. Co., 62 Me. 84.
   Pillsbury, J.

The law, under the contract entered into by a common carrier of persons, when it receives the price demanded for the service required, imposes upon the carrier the duty of exercising the highest degree of care, skill and vigilance to carry the passenger to his destination in safety, and for the slightest neglect in this regard the carrier is liable to the passenger, if in consequence thereof, he be injured. G. & C. U. R. R. v. Yarwood, 15 Ill. 468; G. & C. R. R. Co. v. Fay, 16 Ill. 558; Penn. R. R. Co. v. Roy, 102 U. S. 451.

This duty is not necessarily fulfilled by guarding the passenger against the perils incident to the mode of transporation, but extends to a protection of the passenger from all dangers from any source, including assaults from the other passengers or strangers, so far as such danger could be reasonably foreseen or expected to occur by the exercise of such care, skill and vigilance on the part of the carrier, in view of all the circumstances surrounding the case. Flint v. Transportation Co., 34 Conn. 554, 6 Blatchf. 158; Pittsburg, etc., R. R. v. Pillow, 76 Penn. St. 510; Hew Orleans, etc., R. Co. v. Burke, 53 Miss. 200.; Britton v. Atlanta, etc., R. Co., 88 N. C. 536 (43 Am. R. 749); Holly v. Atlanta Street R. R. Co., 61 Georgia, 215.

And, not only this, but in every such contract of carriage there is a stipulation implied by the law that the passenger shall be humanely treated, and a guarantee that the servants of the carrier, engaged in the performance of their master’s contract, shall not, unjustifiably, assault or beat him, or otherwise maltreat him while the master sustains such contract relations to him. Goddard v. R. R., 57 Me. 202; Neito v. Clark. 1 Cliff. 145; Croaker v. C. & N. W. Co., 36 Wis. 657; Stewart v. R. R. Co., 90 N. Y. 588; Bryant v. Rich, 106 Mass. 180; C. & E. I. R. R. v. Flexman, 9 Bradwell, 250; 103 Ill. 546.

This obligation arising from the contract of carriage implied bv law, is the same as the duty imposed upon the carrier by the common law and co-extensive with it; hence for a breach of duty the passenger may sue upon the contract, or in tort as for a breach of duty. McElroy and Wife v. R. R. Co., 4 Cush. 400; Bryant v. Rich, 106 Mass. 180; C. & E. I. R. R. v. Flexman, supra.

He is not advised what servants the carrier will select to perform its contract, but has a right to presume that his contract will be carried out in good faith, and that he will be placed in charge of none but humane and courteous gentlemen.

As to him, the servants in charge of the train must be considered as the company itself, and every act of theirs which affects the contract of the carriage, either favorably or unfavorably to the company, must be held to be its act, and while claiming and receiving the benefits arising from the performance of the contract by its servants, the carrier must respond for any breach of it committed by them. And this seems to be the rule regardless of the motive of the servant in committing the act that violates the contract.

Thus, in Flexman’s case, supra, where the servant struck the passenger with a lantern to resent a personal insult, and in Croaker v. C. & N. W. Ry. Co., 36 Wis. 657, the conduct- or, without any ill feeling toward his female passenger, kissed her against her will, and in Dalby’s case, 19 Ill. 353, where the servant was endeavoring to enforce a rule of the company reasonable in itself but not applying to the case in hand, the railroad company was in each instance held liable for the assault of the servant upon the passenger.

There are cases, it is true, where the right of the passenger to recover from the carrier for the assault of the servant is placed upon the same ground as though he was a stranger to the master; but it is believed that in such cases the courts overlooked the true relations existing between the parties arising out of the contract of carriage. Such was the case of Isaac v. Third A. R. R. Co., 47 N. Y. 122, where the assault upon the passenger by the servant was held not to have been committed by him in the line of his employment, and the carrier was held upon that ground not to be liable. But in the subsequent case of Stewart v. Brooklyn, etc., R. R., 90 N. Y. 588, where the same question was made, the court admitted that in Isaac’s case the mind of the court was not directed to the point that the passenger occupied a very different relation to the master than a party to whom he was under no contracted obligations, and Flexman’s case, sujpra, was referred to as announcing the true rule, and the plaintiff was allowed to recover. The effect of this latter decision was to overrule the Isaac ease, and to place the doctrine of that court in harmony with the great weight of authority where the question has been determined.

Of coarse there are corresponding obligations resting upon the passenger. He should exercise reasonable care for his own safety; obey promptly every reasonable rule and regulation, of which he has notice, prescribed by the carrier for the security of the passenger and the safety and proper management of the train; refrain from any interference with the servants of the carrier in the performance of their duties, and afford them any assistance he may be able to render upon all proper occasions when requested so to do by them. He must not he guilty of any disorderly conduct, nor use any obscene langnage'to the annoyance of his fellow passengers; in a word, he should conduct himself as a gentleman. To maintain proper discipline upon his train the conductor is by statute invested with police powers, and to protect his passengers from annoyance or vexation by the disorderly conduct of, or the use of obscene language by any passenger on his train, he is authorized to stop his train at any place where such offense has been committed and remove such offender from the train, using no unnecessary force in so doing. And it is believed that if any passenger should improperly interfere with the servants of the carrier in charge of the train in the proper management and control of it, and would not desist upon request, the law would not only justify but require for the safety of the train and the other passengers, the conductor to likewise remove him from the train. It therefore became a material question upon a trial of this cause whether the appellee, at the time he was struck by the conductor, was still a passenger upon the train and entitled to rely upon the contract of carriage for protection against the act of the servant. If he had ceased to bo a passenger, or by his own voluntary act had placed himself in a position where the law would not recognize him as occupying that relation to the appellant, he can not recover in this case, as the declaration places his right of recovery upon the ground that he was a passenger, and as such entitled to the protection of the appellant.

It is urged that the appellee so conducted himself during the trip as to forfeit his right to carriage, and the conductor could have removed him, and the evidence tends very strongly to support this claim; but it is to be noticed that the conduct- or did not exercise the authority possessed by him, and which perhaps he should have done, to stop his train, refund a just proportion of the fare received and then remove the appellee from the train. Instead of doing this he retained the passage money, and permitted him to ride to his destination, and under such circumstances the appellant surely can not justify an assault upon him because of his prior misconduct.

Having been permitted to complete his journey, he should be allowed to leave the car peaceably if he desired so to do.

It is next urged that after the train arrived at Morn's the appellee had sufficient time and opportunity to alight, but instead of doing so, he remained in the car for the purpose of carrying out his threat to “ slug the conductor in the head,” and sought the conductor, with that object in view. Upon this branch of the case the appellant asked the court to give to the jury its tenth instruction, as follows:

10. If the jury find from the evidence that after the arrival of the train at Morris, upon which the plaintiff took passage at Seneca, a reasonable opportunity was given to the plaintiff to leave the train without hindrance or molestation, but instead of so doing he remained on the car and sought a personal controversy with the conductor, while the conductor was not in the performance of any duty as an employe of the defendant, as a carrier of passengers, and by threats of personal violence toward the conductor, provoked an assault upon himself by the conductor in charge of the train, but that such assault had no connection with the discharge of any duty by the conductor as an employe of the defendant, with relation to the plaintiff as a passenger, then the jury are instructed that the defendant is not liable for any damage resulting to the plaintiff from such assault.

We do not find that any instructions given to the jury contains the principle announced in this, and as there is evidence in the record tending strongly to support the theory announced by it, the court should have given it or some one conveying substantially the same idea. The court did instruct the jury that if the appellee had left the car and then returned into it for the purpose of seeking a personal controversy with the conductor, etc., he could not recover. The court, by giving this instruction and refusing the tenth, made the disputed fact whether the appellee still occupied the relation of a passenger to depend upon the question whether he had actually left the car or not.

We do not think that the severing of the relation of carrier and passenger is necessarily dependent upon this fact. If the appellee, having time and opportunity to safely leave the train, remained in the car for the unlawful purpose of assaulting the servants of the appellant, he must be considered as having abandoned the protection afforded him by his contract, and the appellant would no longer be bound by its provisions.

It was his duty to alight within a reasonable time after the train stopped at the station, and the law will not continue his contract in force thereafter, while he remains in the conveyance for the purpose of committing, or provoking another to commit, an unlawful act. And in so saying we are not to be understood as holding that the mere fact that a person has sufficient time and opportunity to leave the conveyance, and fails to do so, in every instance operates to sever the relation existing between him and the carrier. Where the question properly arises, such fact may be considered as bearing upon the question of his negligence, but of itself can not warrant an assault by the servants, nor relieve the carrier from liability therefor. W. St. L. & P. Ry. Co. v. Rector, 104 Ill. 296.

A person may be delayed in leaving the conveyance for many canses that will readily suggest themslves to the mind, perfectly excusable in themselves, and it would be too severe to hold that in such case the passenger subjects himself to a willful or wanton injury at the hands of the employes without any recourse upon the master.

Appellant further insists that the conductor acted in self-defense, and if so, it is a perfect answer for the railroad company, although he used unnecessary and unreasonable force in repelling the assault of the appellee.

Upon this branch of the case the court below, in substance, charged the jury, that if appellee was not a passenger and the conductor acted in self-defense, the appellant would not be liable; but if he was still such passenger and the conductor used excessive and unreasonable force in repelling an attack upon him by appellee, the company would be held responsible for injuries occasioned by such excessive force. Of this action of the court we can not see that the appellant has any just cause of complaint.

As we have seen, the carrier is liable for an assault and battery committed by its servants upon a passenger, and in asuit for damages for such wrong the carrier occupies the position of any other defendant in such action, and to escape the legal consequences, prima facie, flowing from such act of the servant, it must justify the act.

If the act of the servant in committing a naked assault upon, or other willful or malicious wrong to, one intrusted to his care and protection, be the act of thé carrier, how can it logically or legally be said that the latter’s justification is more extensive than that of the servant?

Where a passenger has, by his conduct, forfeited his right to further carriage and incurred the liability of being removed from the train, the carrier being under no further obligations to him than those arising from the dictates of a common humanity, the statute, which seems to be but declaratoi'y of the common law, will not allow excessive or unreasonable force to be- used in removing him. The law, while imposing upon the carrier the duty of maintaining good order and a proper discipline upon the train, and conferring all the power and authority necessary to a proper performance of its duty in this regard, requires, as in all other cases, that the powers conferred should be exercised in a reasonable and prudent manner.

While authorizing the carrier to rescind the contract of carriage for certain misconduct of passengers, the penalty for such misconduct must not be enforced unreasonably or oppressively. Recognizing this rule, the defendant in its plea of justification, alleges certain disorderly acts of the appellee on the trip from Seneca to Morris, and that at Morris he attacked the conductor, and the conductor, acting under the statute, removed him from the car, doing no unnecessary injury or damage to him, and that these are the grievances and trespasses mentioned in the declaration. By this plea the appellant relics upon the alleged facts that the conductor was endeavoring to enforce the authority in him vested by the statute to remove the appellee from the train for his misconduct during the trip and for attacking him at Morris, and has made the allegation that no unnecessary damage or injury was done to appellee, a material averment under the statute, and if this averment fails to be established by the proof, under the replication da injuria, the whole defense made by the plea must fail. Harman v. Eads, 15 Mass. 347; Ayers v. Kelley, 11 Ill. 17; Gizler v. Witzel, 82 Ill. 322.

It might also be suggested that if the conductor used unnecessary and unreasonable force, it would be evident lie was not a suitable person to put in charge of persons to whom the carrier had assumed the duty of protection against the unreasonable and unjustifiable acts of its servants.

It is urged that the damages found by the jury are excessive. The judgment is for §800, and if the jury found that the conductor made the attack upon him without provocation, as claimed by him, we can not say that the verdict indicates any passion, prejudice or partiality upon the part of the jury. The blow was a severe one, resulting in serious injury to the appellee, and certainly it can not be said that any rational person would place himself in the situation of appellee for any such sum. Where pain and suffering are recognized elements in assessing damages for personal injuries, there can be no certain rules for their admeasurement, and consequently the law has left the assessment to the sound judgment of the jury, guided by proper instructions from the court, and before a court should interfere with the findings by putting itself in the place of the tribunal primarily established by the law to determine this question, it ought to be well advised that such verdict is not the result of the calm, dispassionate judgment of the jury, but results from some improper motives or influences, and that injustice would be done if the verdict should be allowed to stand.

If, however, the appellee, as claimed by the appellant, un lawfully attacked the conductor to carry out his threat to “slug” him, and the verdict returned was based upon the fact that excessive force was used by him in repelling the assault, then we should be inclined to hold a much smaller amount would satisfy the law, and be a sufficient remuneration to him. In such case, as a matter of- fact, we should not be disposed to weigh the degree of force in golden balances in order to charge the master with the consequences of excessive and unreasonable force, used by the servant while protecting himself. A man who, to redress some fancied wrong or avenge some alleged insult, takes the law into his own hands, and wrongfully attacks another, does not entitle himself to any marked sympathy or consideration at the hands of either court or jury-, and should only receive what the stern rules of the law will award him.

As the case will be tried by another jury, we refrain, at this time, from expressing any opinion as to the weight of the evidence introduced in support of the claims of the respective parties.

We do not deem it necessary- to particularly notice the objections to plaintiff’s instructions, as upon another trial they can be made to conform to the views herein expressed.

The judgment, for the error mentioned will be reversed, and the cause remanded.

Judgment reversed.


author: Per Curiam.

text:
    Ira K. Mansfield v. J. B. Allison.
    Practice. — As the appellant has assigned no errors upon the record as required by the rules of this court, the decree is affirmed.
    Appeal from the Circuit Court of Winnebago county; the Hon. William Brown, Judge, presiding.
    Opinion filed February 5, 1885.
    Mr. G. O. Williams, for appellant.
    Mr. J. C. Garver, for appellee.
   Per Curiam.

The appellant in this cause has assigned no errors upon the record as required by the rules of the court, and this omission is insisted upon by appellee as a reason for affirming the judgment.

Without assignment of errors no issue is presented for trial by this court.

The decree will be affirmed.


text:
    Chicago, Rock Island and Pacific R. R. Co. v. Lawrence Harmon.

      1. Evidence — Stenographer’s notes. — The notes of a stenographer, or even his transcript of them contained in the bill of exceptions, written out by himself, supplemented by his testimony that they are correct, would be competent evidence as to what a deceased witness swore to upon the former trial of a case.
    2. Practice. — Where it does not appear in the record that certain evidence the exclusion of which is complained of, was material to the issue, this court must presume that the court below was justified in excluding it in the absence of such statement in the bill of exceptions as would show error.

      Appeal from the Circuit Court of Peoria county; the Hon. D. McCulloch, Judge, presiding.
    Opinion filed February 5, 1885.
    Mr. Thos. F. Withrow and Mr. J. C. Hutchins, for appellant;
    as to evidence, cited State v. Fitzgerald, 19 N. W. Rep. 202; Cornell v. Green, 10 S. & R. 14; Mayor of Doncaster v. Day, 3 Taunton, 262; Clark v. Vorce, 15 Wend. 193: Halsey v. Sonsebough, 15 N. Y. 485; Brown v. Luehrs, 79 Ill. 575.
    Mr. George B. Foster, for appellee.
   Pillsbury, J.

This case was before us at a former term upon the appeal of the present appellant, and is reported in 12 Bradwell, 54, where will be found a statement of the facts and an expression of our views upon the rights of plaintiff and the liabilities of the defendant. After our remanding the cause it was again tried with the result of a verdict and judgment for the plaintiff below, and it comes before us again upon the appeal of the defendant.

Some of the questions passed upon by us upon the former appeal are again pressed upon our attention and we have again given them that consideration that the importance attached to them by counsel would seem to demand, and have been unable, notwithstanding their very able arguments, to reach any different conclusions than we announced at that time. We have no desire to modify or overrule any statement then made by us bearing upon the rights of the parties.

The error then in the record and for which the judgment was reversed, has been corrected, and upon the score of instructions we can not see in the present record wherein the appellant has any just grounds of complaint.

Error is however alleged upon the action of the court in refusing to allow the stenographer who reported in shorthand the evidence upon the' former trial, and Mr. Wells, one of the attorneys for the appellant upon the same trial as well as this, to state what one Elvvood, since deceased, testified to upon the former trial concerning the signing of a certain paper by one Hieholas Algiers, a witness upon both trials for the appellee, Harmon. The stenographer testified upon this trial that he reported the testimony upon the former trial, including the testimony of Eiwood. That while he could not state from memory, independently of his notes, everything that the deceased witness stated upon his examination, he was satisfied he had taken down his statements correctly, and referring to his notes, or the evidence written out from such notes contained in the former bill of exception, he could state substantially all that he testified to both upon direct and cross-examination. The witness Wells stated that he could state all the material parts of his testimony upon the point concerning the writing and signing of the statement by the witness Algiers, but as the cross-examination was very long and rapid, he was not prepared to say that lie could state everything that the deceased witness swore to.

We are satisfied that the notes of the stenographer or even his transcript of them contained in the bill of exceptions written out by himself, supplemented by his testimony that they were correct, was competent evidence as. to what the deceased witness swore to upon the former trial. As all know, competent shorthand reporters are much more likely to be correct when taking down the statement of a witness when made, than one who merely relies upon his recollection to state what was said months before, and when such reporter swears his notes are correct there can be no substantial objection to his referring to them to refresh his recollection as to the former testimony.

The record, however, in this case, does not show the materiality of the testimony of Eiwood. The bill of exceptions does not show that the appellant offered in evidence the transcript of his testimony as written out by the reporter, hut it also appears that such transcript was omitted from the record in this case by request of the defendant. We can not, therefore, determine whether the court committed errors in refusing to allow the defendant to prove the statement of said Eiwood. Whether his testimony was material to the issue does not appear, but as the court excluded it we must presume it was justified in so doing in the absence of such statement in the bill of exceptions as would show error.

The appellant failing to show substantial error in the record, the judgment will be affirmed.

Judgment affirmed.


text:
    Comm’rs of Highways of Town of Deer Park v. John O’Sullivan.
    1. Commissioners op highways — Creating debt. — Comniissioners of highways are powerless to pledge the credit of a township for work and labor upon the roads and bridges to he paid for in the future out of revenues to be derived from taxes subsequently levied, and an order given in such case is void.
    2. Assignment op order. — The assignment of such an order before maturity would confer no better title to it upon the assignee than was vested in the payees therein.
    8. Construction op statute. — The second part of Section 81 of the Road and Bridge Act of 1877 doss not legalize any act of the commissioners in creating a debt against the town in violation of the pre-existing statutes of the State.
    Appeal from the Circuit Court of La Salle county; the Hon. George W. Stipp, Judge, presiding.
    Opinion filed February 5, 1885.
    This case was tried in the court below upon the following agreed state of facts:
    State oe Illinois, ) gg Circuit Court thereof, La Salle County. J " October Term, A. D. 1883.
    John O’Sullivan v. The Commissioners of Highways of the Town of Deer Park. Assumpsit. Agreed case. Damages $1,500.
    And now comes the plaintiff, by Duncan & O’Connor and II. T. Gilbert, his attorneys; and also the defendants come, by Henry Gunn, their attorney, and by agreement waive the service of process and all formal pleadings in this cause, and also waive a trial by jury and submit this cause to the court for trial upon the following agreed statement of facts:
    On the 1st day of December, A. D. 1876, the defendants executed and delivered to William Fyife and Benjamin Hetherington, partners, doing business under the firm name and style of Fyife & Hetherington, a certain order, in the words and figures following, to wit:
    $1,000. The treasurer of the commissioners of highways of the town of Deer Park, La Salle county, State of Illinois, will pay to Fyife & Hetherington, or order, the sum of one thousand dollars ($1,000), with interest at ten per cent, per annum, payable on or before the twentieth (20th) day of Julv, A. D. 1878.
    Dated at Deer Park this 1st day of December, 1876.
    B. B. Williams,
    Belsoy Willey,
    James Shaughyessy,
    Com mb's of Highways of Deer Park.
    On or about the 1st day of January, A. D. 1877, said Fyife & Hetherington assigned said order by indorsement on the back thereof to John O’Sullivan, the plaintiff in this suit, who purchased the same by paying said Fyife & Hetherington a valuable consideration therefor in good faith, without any actual notice of any facts affecting the validity of said order, and with only such constructive notice of illegality or invalidity thereof, if any, as would be afforded by the records of the town of Deer Park, the Board of Supervisors of La Salle county and of the county of LaSalle in the county clerk’s office of said county, if the law charges him with notice thereof, and if said order is valid in whole or in part, or is in whole or in part a binding obligation which defendants are required to pay, said John O’Sullivan is entitled to a judgment against the defendants for such an amount as the court shall adjudge to be due and owing thereon, according to law, said John O’Sullivan having long prior to the commencement of this suit repeatedly demanded payment of said order from the defendants, or their treasurer, and such payment having been refused.

      Said order was given by said defendants to said Fyfie & Hetherington for work done by said Fyffe & Hetherington in the construction of a culvert upon a certain public highway, near and leading to the bridge across the Illinois river, in said town of Deer Park, the contract for which work was duly let by said defendants to said Fyffe & Hetherington in strict compliance with the terms of the then existing laws of this State, prescribing the mode of letting contracts by commissioners of highways, unless by reason of the facts hereinafter and hereinbefore stated said contract was one which said commissioners could not lawfully enter into, and the defendants admit that at the time said order was given the amount specified therein was due from them to said Fyffe & Hetherington, if the contract under which said work was done was one which they were legally authorized to enter into at the time the same was entered into. Said culvert, in pay menu for which said order was issued, formed a part of said public highway in said town of Deer Park, and ever since the same was constructed has been used by said defendants and said town of Deer Park as a part of said highway, and said order' lias, ever since the same was issued, remained outstanding and unpaid, and still remains unpaid and outstanding. The contract under which said work was performed by said Fyffe & Hetherington was entered into subsequent to the month of September, A. D. 1876, and the work thereunder was performed by said Fyffe & Hetherington prior to the 1st day of December, A. D. 1876, and the total amount of work performed by said Fyffe & Hetherington under said contract was worth the sum of one thousand, seven hundred and eighty-three dollars and sixty-three cents ($1,783.63,) no part of which was ever paid by said defendants, but, instead of making payment therefor in cash, said defendants issued to said Fyffe & Hetherington the order above mentioned, and a similar order for the sum of seven hundred and eighty-tliree dollars and sixty-tliree cents.
    At the time of the making of said contract with said Fyffe & Hetherington there was no money in the hands of said defendants or their treasurer, belonging to the road and bridge funds of said town of Deer Park. The amount of the road and bridge tax levied in said town for said year 1876, which levy was made in the month of September of said year, was one thousand five hundred and sixty-six dollars ($1,566), no part of which, however, had been collected at the time of the issuing of said orders. At the time of malting of said levy, the defendants did not contemplate entering into any contract witli Fyffe & Hetherington, or with any other person or persons, for the making of the culvert built by them, hut they intended to use the funds so levied for other road and bridge purposes. But there were no records either of said town of Deer Parle or of said county of LaSalle from which said Fyffe & Hetherington could have ascertained the purpose for which said funds so levied were to he used, nor did they or the plaintiff ever have any notice of the purpose for which said money was intended to he used.
    The amount of taxes levied in the town of Deer Park in 1877 for bridge purposes was $1,000; forread purposes, $675; total, $1,675. In 1878 for bridge purposes, $800; for road purposes, $500; total, 81,300. In 1879, for road and bridge purposes, $1,000. In 1881, for road and bridge purposes $900. In 1882, for road and bridge purposes, $1,200,' and for special road purposes, $2,000; total, $3,200. In 1883, for road and bridge purposes, §1,213.15.
    The assessed valuation of the real and personal property in the town of Deer Park for the year 1876 was $524,350; for the year 1877, $463,311; for the year 1878 was $447,116; for the year 1879 was $409,018; for the year 1880 was $375,600; for the year 1881 was $371,448; for the year 1882 was $348,-083, and for the year 1883 was $346,617.
    Said defendants have never offered to pay to the plaintiff any portion of the amount of said order since the making thereof, nor have the}' ever offered to apply any of the taxes above mentioned, levied and collected since the making of said order, to the payment thereof, nor have they made or attempted to make any additional levy of taxes, out of which said order might have been paid.
    Hpon the foregoing facts the point of law at issue between the parties is as follows:

      Are the defendants legally bound to pay the said order held by the plaintiff, either in whole or in part?
    If said question be determined by the court in the affirmative, it is agreed by the parties that the plaintiff shall have judgment against the defendants for the amount of said order, or such portion thereof as the court may find defendants are legally bound to pay, and his costs of suit, with such interest as may be legally allowable.
    If said question be determined by the court in the negative it is agreed by the parties that the defendants shall have judgment against the plaintiff, for their costs of suit.
    It is further agreed by and between the parties that neither of said parties shall, by reason of anything here contained, be precluded from prosecuting an appeal or writ of error for the purpose of reviewing the judgment that may be rendered by the court upon said agreed statement of facts.
    John O’Sullivan, plaintiff,
    By Duncan & O’Connor and H. T. Gilbert, his attorneys. Tiie Commissioners of Highways of the Town of Deer Park,
    By Henry Gunn, their attorney.
    The court rendered judgment for the plaintiff, and the commissioners appealed.
    Mr. Henry Gunn and Mr. Daniel Evans, for appellants;
    cited Comm’rs v. Newell, 80 Ill. 587; Brauns v. Town of Peoria, 82 Ill. 11; Law v. People, 87 Ill. 394; School Directors v. Fogleman, 76 Ill. 189; Law v. People, 87 Ill. 385.
    Mr. J. W. Duncan and Mr. H. T. Gilbert, for appellee.
   Pillsbury, J.

It is admitted that at the time of the contract between the commissioners of highways and the payees of the order there was no money in the treasury applicable to their payment, and that the levy of taxes for the current year had been levied to meet other expenses during the year, and it sufficiently appears from these facts, taken in connection with the order itself, that it was not in contemplation of the parties that the money derived from taxes already levied for the present fiscal year should be applied to the payment of the work or in taking up the orders issued.

The order is payable generally out of the funds in the hands of the treasurer and its time of payment extended far enough in the future to make the taxes levied in the subsequent fiscal year available for its payment. It is thus seen that the parties intended to appropriate the revenues of a subsequent year in discharge of the indebtedness incurred in a former yeai*.

It was held in Commissioners of Highways v. Newell, 80 Ill. 587, that a tax having been levied by the commissioners they might enter into contracts to be paid for out of the funds derived from such levy. And in Brauns v. Town of Peoria, 82 Ill. 11, it is said by the court that in the many provisions of the statute respecting roads and bridges, they failed to find any authority conferred upon the highway commissioners to expend money on the roads and bridges in their respective districts which is not in their treasury to be expended, and which had not been actually levied, nor is there any authority conferred upon them to anticipate revenues and expend it, unless the same be actually levied, referring to Newell’s case, supra. It is further said that “it seems to be the policy of the law, and a very just one, that the accruing revenues of the year shall be appropriated to the wants of the year, and that no expenses shall be incurred in the absence of money already levied to meet them.”

These decisions would seem to be conclusive against the right and power of the commissioners of highways to enter into any contract having the effect to create an indebtedness against their township to be paid at a future time and out of funds derived from taxes levied in subsequent years.

Being thus prohibited from creating such indebtedness, they are placed in the same position as municipalities that have an indebtedness exceeding the constitutional limit, being thereby prohibited from increasing it, and the decisions respecting the powers of such municipalities are applicable to these quasi corporations. It was held in The City of Springfield v. Edwards, 84 Ill. 626, and re-affirmed in Law v. The People, 87 Ill. 387, that municipalities prohibited from ereating any further indebtedness, because the constitutional limit had been reached, might, nevertheless, anticipate the collection of the revenue arising from taxes already levied for current expenses without violating the constitutional or statutory prohibition, but in such case the delivery of the warrant upon the treasury must have the legal effect and operate as a contract between the corporation and the person receiving the warrant, that the city shall thereby incur no liability whatever. In such a case there is no debt incurred, because the warrant on the treasurer is received for the work done or the articles furnished. It is further held that the acceptance of such warrant drawn against the tax levied is a virtual assignment of so much of the funds arising from the tax as will satisfy such warrant, and the person thus accepting it must look to the officers collecting the tax for that amount, and that his remedy is against them, and not against the corporation, otherwise a contingent debt would be created against the corporation which it was powerless to do.

How it is evident in the case at bar, that the officers charged with the collection of the road and bridge tax levied by the commissioners for. the fiscal year commencing the Tuesday preceding the annual meeting of the county board in September, 1876, could not apply it to the payment of this order under such rule. The order does not purport to appropriate any portion of that tax levy to its payment, nor to be an assignment of any part of it. The collector would be required to make his settlement over one year before the order by its terms was due and payable. How, then, could he justify its payment, when by its terms it was not due and payable until the taxes could be collected from the levy made in 1877 % This, manifestly, he could not do.

It may be remarked that the rule announced in Springfield v. Edwards, and Law v. The People, supra, has by act of the legislature become a part of the statutory law of this State. Sess. Laws, 1879, page 73. This order, if valid, could have no other legal effect than to create a debt against I he township, to be paid in the future. It is as much an evidence of indebted-mess as were the certificates issued by the city of Chicago, and which were so held to be. in Law v. The People, supra, and as we have seen that the commissioners of highways were powerless to pledge the credit of the township for work and labor upon the roads and bridges to be paid for out of revenues to be derived from taxes subsequently levied, we must hold the order void. And as it has none of the qualities of negotiable paper under our statutes (People v. Johnson, 100 Ill. 567), its assignment to the plaintiff before maturity conferred no better title to it upon him than was vested in the payees therein. It is argued, however, that the Poad and Bridge Act of 1877 validated the order and made it a binding obligation upon the town. The provision relied upon is contained in the second part of Sec. 81 of that act (Sess. Laws 1877, page 196), and is as follows: "They (the commissioners) shall annually ascertain, as near as practicable, how much money must be raised by tax on real and personal property for the making and repairing of bridges * * * and for the payment of any outstanding orders drawn by the commissioners on their treasurer, and shall levy a tax, etc."{

This last clause does not, in our opinion, have the effect claimed for it. We do not believe it was the intention of the legislature to thereby legalize any act of the commissioners in creating a debt against the town in violation of the pre-existing statutes of the State. It does not purport to be retroactive in its operations and we should not give it that effect, unless such intent is evident from the language employed.

That such was not the intention we think manifest not only from the terms employed, but also from the saving clause contained in the repealing section, where, after repealing the acts of April 10th and August 15,1872, it provides that such repeal shall not affect any suit or proceedings pending or impair any right existing at the time this act shall take effect. If then the order in suit was void for the reasons stated and was not binding upon the town as an evidence of indebtedness, the town had a perfect defense to it, and this right was an existing one and was saved by the terms of the statute. Dobbins v. National Bank. Unpublished Opinion, Sup. Ct. Illinois.

Our conclusion is, that the plaintiff can not recover upon the order in evidence, and as the facts are agreed, there can be no necessity for remanding the cause, and therefore the judgment of the court below will be reversed and judgment entered in this court for the defendants below, with the costs of both courts, and it is so ordered.

Judgment reversed, and final judgment in this court for the defendants.


text:
    Garrett P. Atchison v. William Dullam.
    1. Injury by discharge on gun. — If a person is injured by the discharge of a gun in the hands of another who has entire control of it, the burden is cast upon the latter to prove that the gun was not fired at him either intentionally or negligently, but the result was inevitable and without the least fault upon his part.
    2. Admissions by witness. — Where a witness who was present at the time of an injury was asked if he did not state to certain persons after the injury, that the defendant was not to blame, that it was an accident, etc., and upon his stating that he did not remember whether he said so or not, the persons named were called and allowed to testify as to what he did say. Held, that such admissions were merely expressions of an opinion, and incompetent, and so far immaterial as not to make a foundation for the introduction of impeaching evidence.
    R. Admissions by party to suit. — While there might not be the same strict rule applied as to (he incompetency of such statements when made by a party to the suit as when made by an outside witness, they should nob be made by the court in an instruction a controlling element in the case to such an extent as was done in this case.
    Error to the Circuit Court of Boone county, the Hon. Chas. Kellum, Judge, presiding.
    Opinion filed February 5, 1885.
    This action was commenced by plaintiff in error against the defendant in error to recover damages sustained by reason of injuries received from a gun-shot wound, the gun being discharged while in the hands of the defendant.
    The first two counts of the declaration are in case averring negligence upon the part of the defendant in handling the gun, by reason of which it was pointed at the plaintiff and negligently discharged and the plaintiff thereby shot and wounded. The last two counts are in trespass vi et amis in the usual form.
    The general issue was pleaded with the agreement that any proof showing that the acts complained of were accidental or occasioned by misadventure might be introduced under that plea.
    The evidence upon the trial established the following facts: That in September, 1881, one George A. Stanley, an acquaintance of the defendant who was a farmer residing in Boone county, and the plaintiff, went from Chicago where they resided, out to Dullam’s to have a little recreation, and upon arriving there they all went hunting that afternoon. The next morning they intended to leave, but Dullam invited them to remain, and he would go with them after game. They got into a buggy and drove out into the woods, when, upon the suggestion of the defendant, they hitched the team and alighted from the buggy. Stanley and the plaintiff each had a double barreled breech-loading shot gun, and when they got out of the buggy, Stanley gave his gun to the defendant, and the started along in a northeast direction, the defendant upon the right, Stanley next, and the plaintiff at the left and slightly in front. When the gun was taken by Dullam from Stanley he cocked both hammers and traveled along with the gun in that condition. After going about seventy-five yards, the defendant fired one barrel at a bird and killed it, and desiring to reload the discharged barrel, attempted to break down the gun so he could insert a new cartridge, and at this point Stanley said to him, “ Here is a shell,” and the defendant then turned around toward the left, and while still fumbling the gun, permitted the muzzle to point directly toward the plaintiff, then not over six feet distant and in full view, and the other barrel being discharged, its contents struck the leg of the plaintiff below the knee, necessitating amputation.
    A trial being had, the jury rendered a verdict in favor of the defendant, under the instructions of the court, and the plaintiff sued ont this writ of error.
    Mr. J. C. Garver and Mr. R. S. Tuthill, for plaintiff in error;
    cited Morgan v. Cox, 22 Mo. 373; Underwood v. Hewson, Strange, 596; Cole v. Fisher, 11 Mass. 137; Chataigne v. Bergeron, 10 La. An. 699; Cooley on Torts, 674; Tally v. Ayres, 3 Sneed (Tenn.), 677; 1 Thompson on Negligence, 238; Welch v. Durand, 36 Conn. 182.
    Mr. A. B. Coon and Mr. T. D. Murphey, for defendant in error.
   Pillsbury, J.

As early as Weaver v. Ward, Hobart, 134, trespass was allowed to be a proper form of action for the recovery of damages sustained by the plaintiff from a discharge of a gun in the hands of the defendant. An action of trespass vi et armis having been brought, the defendant pleaded that he and the plaintiff were soldiers in the same company, and by order of the commandant they were engaged with another company in military exercise in which the discharging of the guns was a part, and that liisgnn, by accident and misadventure and without his will, was discharged, by which the plaintiff was injured. Upon demurrer it was held that the defendant could only excuse himself by showing that he was utterly without fault, and a plea which did not show that the injury was inevitable and that the defendant had committed no negligence to give occasion to the hurt was bad, and judgment was .given for the plaintiff.

Underwood v. Hewson, Strange, 596, is a case holding that where the defendant was uncocking his gun, the plaintiff standing by to see it done, and the gun was accidentally discharged, wounding the plaintiff, the defendant was liable in trespass; and Sewell, O. J., in Cole v. Fisher, 11 Mass. 137, says that the decision in that case has never been questioned.

But whether the liability of the defendant is sought to be enforced in anaction of trespass or in any action on the case can make no particular difference as the rule of law upon which the defendant’s liability is to be established is the same in either form of action.

Tally v. Ayers, 3 Sneed, 677, was an action to recover for the loss of a mare by being shot by the discharge of a gun in the hands of the defendant. The mare of the plaintiff was standing hitched near a store in the town, and the defendant starting for home, took his rifle from the store, where he had left it on arrival at the town, and when in the act of placing it upon his shoulder, by some means it was discharged, killing the plaintiff’s mare. It was found that the discharge of the gun was accidental and without the concurrence of the plaintiff’s will. The defendant was held liable, the court saying: “ To constitute an available defense in such cases it must appear that the injury was unavoidable, or the result of some superior agency without the imputation of any degree of fault to the defendant.” “ The very fact that the gun went off’ under the circumstances detailed in the proof implies some inadvertent act, or want of proper caution on the part of defendant.” “ The lock must either have been defective, or some agency must have been exerted, unintentionally and perhaps unconsciously by the defendant, otherwise the discharge of the gun could not have happened. And in either view the defendant is alike amenable for the consequences.”

Chataigne v. Bergeron, 10 La. Ann. 690, was an action to recover damages for injuries from a gun-shot wound. The admission of the defendant showed that he and the plaintiff met, both having guns, and some words passed between them; he stooped to pick up a stick, and his gun accidentally went off, and wounded the plaintiff. The court held him liable, saying that assuming his statement to he true, he would not he relieved from liability for damages incident to his gross neglect in handling his gun.

Morgan v. Cox, 22 Mo. 373, was a case where the plaintiff and his servant (a slave) were engaged in driving a cow across the Osage river, and the plaintiff asked the defendant, who was out hunting, to assist them, and the defendant consenting, used his gun in punching at the cow, and in replacing it across liis horse, the hammer struck the saddle, as he supposed, and being discharged killed the slave of the plaintiff, and in an action to recover the value of the slave, the court held, that the burden was upon the defendant to show that the gun was discharged by inevitable accident and without the least fault; that a mere misadventure and without the wrongdoer intending it, was not enough to excuse the trespass, and the defendant was held liable.

These adjudications which we admit as authorities, and give our unqualified approval to the conclusions therein reached, clearly show how strictly the law holds a party responsible for injuries inflicted upon another in the use or handling of firearms. They determine that if a person is injured by the discharge of a gun in the hands of another who has entire control of it, the burden is cast upon the latter to prove that the gun was not fired at him either intentionally or negligently, but the result was inevitable and without the least fault upon his part.

Fire-arms are not usually discharged without the intervention of some human agency. A presumption, therefore, almost conclusive in its character, is raised, that when such weapons are discharged while in the possession and control of another, the firing is caused either by design, carelessness or inadvertence upon his part.

Applying the rules of law as announced in the decisions cited to the facts in this case, it becomes difficult to see how the defendant can be excused from the responsibility of causing the injuries to the plaintiff’. The facts proved can be reconciled only on the theory that the defendant in fumbling about the breach of the gun, in order to break down the barrels must have touched the trigger of the cocked barrel and thus discharged it. The proof is that the defendant stated it must have occurred in that manner. This act of his, though unintentionally and perhaps unconsciously done, coupled with the further fact that while thus attempting to break down the gun he turned partially around, and in so doing permitted the gun to bear directly upon the plaintiff, then not more than six feet distant and in full view, clearly proves to our minds that the defendant was grossly negligent in handling his gun.

He testifies that he knew the gun was hard to break down, and light on the trigger, and having such knowledge, even common prudence and care would have required him in breaking it down, while cocked, to keep the gun in such a position that it could not have possibly injured his companions if discharged.

The first instruction given for the plaintiff, while perhaps correctly stating an abstract proposition of law applicable to ordinary actions of negligence where contributory negligence is relied upon as a defense, we think should not have been given in this case. We fail to find any evidence in the record that the plaintiff by any act of his contributed to the injury in the least. He knew, it is true, that the defendant had the gun, and that he was within striking distance of it, but could not suppose that the defendant would point it toward him when cocked and then attempt to break it down. The third instruction for the defendant is erroneous, in that it casts upon the plaintiff the burden of proving the wrong, fault or want of care upon the part of the defendant that caused the injury. This could only have been understood by the jury as requiring the plaintiff to show how the gun was discharged by the defendant, and lead them to conclude that plaintiff had not made out a case, by simply showing that while the defendant had control of the gun it was discharged and the injury ensued. As we have seen, the plaintiff, having shown that the defendant, while handling the gun, caused it to be pointed toward him, within striking distance and in full view, and that the gun was fired and a consequent wounding, his case was prima faoi& complete; and if the defendant would excuse himself from liability the onus was upon him to show such facts as would, under the law, exonerate him.

Stanley was a witness for the plaintiff, and after detailing the facts, within his knowledge, attending the injury, was asked upon cross-examination, if he had not stated to certain persons after the injury that the defendant was not to blame, that it was an accident, etc.; and upon his stating he did not remember whether he had so stated, the parties named were called as witnesses by defendant, and were allowed to state what lie did say to them. To this action of the court the plaintiff saved exceptions. In allowing impeaching testimony we think error was committed. At most, it was bnt a mere expression of opinion upon his part which would be incompetent for him as a witness to state to the jury, and so far immaterial as not to make a foundation for the introduction of impeaching evidence. Mutcha v. Pierce, 49 Wis. 231; Teal v. Meravey, 12 Bradwell, 31.

Besides, he was not a party, and his testimony was confined to facts upon which the jury were to form opinions uninfluenced by his belief as to who was to blame, as his opinion might be, as we have seen it was in fact, very incorrect.

The same class of testimony was introduced regarding statements made by the plaintiff; and while we are not prepared to hold the same strict rule as to the incompetency of such statements and admissions when made by a party to a suit as when made by an outside witness, we think such statements should not be made by the court in an instruction a controlling element in the case to such an extent as appears to have been done by the defendant’s fourth instruction given on the trial. C., B. & Q. R. R. Co. v. Warner, 108 Ill. 538. The jury should form their own opinion as to who was in fault from a consideration of all the facts in the case rather than from the opinion of any witness as to the legal effect of such facts, especially in cases where expert testimony is not required or allowable. Ocher objections have been made to the action of the court in giving and refusing instructions, which are unnecessary to be noticed in detail, as upon another trial they can be made to conform to the views herein expressed.

The judgment will be reversed and the cause remanded for a new trial.

Judgment reversed.