author: Mr. Presiding Justice Dibell

text:
    Harry B. Goodison, Administrator, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    Gen. No. 6,568.
    1. Cakbiebs, § 306

      —when relation of passenger and carrier not created. The relation of carrier and passenger is not created where an intoxicated person applies to a station agent for a ticket, is refused, is ordered into the smoking room, and, upon being found later on the platform, is again ordered into the smoking room.
    2. Cabeiebs, § 264

      —when agent may refuse to sell tickets. Evidence held sufficient to show intoxication of a person seeking to buy1 a ticket so as to warrant the station agent in refusing to sell him one.
    3. Railroads, § 582

      —when slippery or defective condition of crosswalk not shown. In an action to recover for the death of an intoxicated person, who had been refused a ticket by the station agent, and was killed by a train while crossing the tracks on a crosswalk to take the train, which was coming on the further track, evidence held insufficient to show that the crosswalk was slippery or defective.

      4. Railboads,. § 583

      -—when wilful negligence in operation of train not shown. Wilful negligence in the operation of a train, resulting in the death of an intoxicated person, who had been refused a ticket, but was killed while crossing the tracks on a crosswalk with the intention of taking the train which struck him, was not shown where an automatic bell on the engine had been ringing since leaving the last station, and the engine was being driven at a proper, ordinary speed, and, when the engineer saw deceased on the track, he used every appliance to stop the train.
    Appeal from the Circuit Court of DeKalb county; the Hon. Clinton F. Ibwin, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed with finding of facts.
    Opinion filed October 10, 1918.
    T. M. Cliffs, for appellant; J. A. Connell, of counsel.
    F. E. Brower and C. D. Rogers, for appellee; S. Vesely, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On Sunday, December 12, 1915, shortly after noon, Daniel Pawliszyn undertook to cross the tracks of the Chicago, Burlington & Quincy Railroad Company at its station at Sandwich, just ahead of an incoming passenger train which was to stop at that station, and he was struck, and died that day from his injuries. He left a widow and children, for whose benefit his administrator brought this suit against the railroad company. There was a jury trial. Plaintiff had a verdict for $2,000. Motions by defendant for a new trial and in arrest were denied. Plaintiff had judgment on the verdict and defendant appeals.

At Sandwich the railroad runs in an easterly and westerly direction, and is a double-track road. The depot is on the north side of the track with a platform in front of it. Opposite the door of the waiting room was a plank crossing, perhaps 12 feet wide, over which intending passengers went to the platform south of the south main track, which was the eastbound track. A passenger train from the west approached. The ticket agent called the train. Forty or fifty intending passengers went across to the south platform. Shortly before the train reached the platform plaintiff’s intestate started across on the run and fell on the south track. He sought to get up and fell again. A passenger standing on the south platform caught hold of him and tried to pull him out of the way of the train but failed and plaintiff’s intestate was struck and injured and was carried on the train to a hospital at Aurora, where he died. The amended declaration did not expressly charge that deceased was a passenger or had been received as a passenger by defendant, but language was used in each count which we held in O’Donnell v. Chicago & N. W. Ry. Co., 106 Ill. App. 287, was equivalent to a charge that he was a passenger. Each count charged that deceased was in the exercise of due care for his own safety. The first count charged negligent operation of the train at a high rate of speed, without ringing a bell or sounding a whistle, without the engineer exercising a proper lookout ahead and without having said engine under proper control. The second count charged that defendant negligently permitted said crosswalk to be icy and slippery and in an unsafe condition, and a bad state of repair, which condition it knew, or by the exercise of ordinary care should have known. The third count charged that the crosswalk was in a slippery condition and that deceased slipped, stumbled and fell on account thereof, as said train was approaching, and that his dangerous position was known to the servants of defendant in charge of the engine in time to have stopped the train and avoided striking deceased, and that they ran said train at a reckless rate of speed without warning of its approach and without using all reasonable means to stop it. Each count charged that by the conduct of defendant’s servants, in that count stated, deceased was killed. Defendant filed the general issue and a plea denying its ownership and operation of the road. No evidence concerning the issue raised by the latter plea was offered by either side.

In O’Donnell v. Chicago & N. W. Ry. Co., supra, we stated at length and upon authorities there cited what is necessary to create the relation of carrier and passenger, and that, to create that relation, the carrier must have expressly or impliedly received the party as a passenger, and that usually that relation is implied if the passenger is at the proper place with a ticket or the means of purchasing the same, but that if he had not been expressly or impliedly received by the railroad company as a passenger, that relation does not exist and the company owes him no duty as a passenger. In the recent case of Todd v. Louisville & N. R. Co., 274 Ill. 201, these views are stated, with a reference to many authorities; and it is there held that the carrier may, without any good reason, decline to accept the offered passenger and in such case he cannot become a passenger, and his only remedy is by way of damages for the unwarrantable refusal to accept him. In this case it is clear that the deceased applied to the ticket agent in the depot for a ticket to Chicago, that the agent refused to sell him a ticket and ordered him into the smoking room, and again, after he found him on the platform, ordered him into the smoking room. This testimony is uncontradicted. Deceased, therefore did not become a passenger and the company did not owe him the duties which it owes to a passenger, and, as this action was not based on a wrongful refusal to sell him a ticket and accept him as a passenger, there could be no recovery.

A very great preponderance of the evidence shows that deceased was intoxicated. As he approached the depot, a few minutes before, he fell down in the street several times and on getting part way up would fall down again. The agent to whom he applied for his ticket discovered his condition, talked with him, until he ascertained that he was intoxicated, and then refused him a ticket. The physician who came to him on the platform a minute after he was struck smelled liquor upon his breath and testified that he was drunk. Other witnesses testified that they considered that he was intoxicated. Two witnesses testified for plaintiff that they did not notice that he was intoxicated. If the jury had returned a special verdict that he was not intoxicated, it could not have been sustained upon this proof. The agent, therefore, had a right to refuse to permit him to become a passenger because he was intoxicated.

Snow had fallen the night before and perhaps that morning. It had been swept off by the section men. Some more miay have fallen and melted. The preponderance of the evidence is that the walk was soft or slushy or wet rather than icy. Deceased may have slipped and fallen because his feet came into contact with ice or snow or slush, but the manner of his falling and of his effort to get up indicate to us that he fell because he was intoxicated and because of that condition became anxious about his dog, which was on the track, and that he turned with his back to the approaching train to try to get his dog off the track. Forty or fifty passengers had gone over without finding anything unsafe on this crosswalk. We think the charge of negligence in that respect was not proven.

The third count used the word “ wilful” in connection with charges of negligence against those driving the train. That charge of wilfulness is entirely unsupported by the proof. It is argued that the engineer should have kept a better outlook ahead, should have seen deceased on the track sooner, should have approached the station more slowly, and should have had his train under such control that he could have stopped it more quickly. These are charges of mere negligence which cannot prevail if, as here, the deceased was not exercising due care for his personal safety. It is clear that an automatic bell on the engine had been ringing ever since the train left the last station, and that the engineer was approaching at the ordinary speed, proper to he used when stopping at that station, and that as soon as the engineer saw deceased on the track he used every appliance at his command to stop his train. Therefore there can be no recovery on the ground that the engineer wilfully ran him down.

Numerous questions are raised upon the rulings of the court upon the evidence and upon plaintiff’s instructions, and their adequate discussion would require much space. We think this unnecessary, as what has already been said precludes a recovery. Plaintiff contends that defendant is estopped by instructions which it offered. We conclude this position is not maintainable. The judgment is therefore reversed.

'.Reversed with finding of facts.

Finding of facts to be incorporated in the judgment.

We find from the evidence that, before the accident in question, defendant refused to receive deceased as a passenger and did so for just cause; that deceased was not in the exercise of due care for his own safety; and that defendant was not negligent in the respects charged in the declaration.


source: Caselaw Access Project

author: Mr. Presiding Justice Bibell

license: Public Domain

text:
    Frank F. Follett, Administrator, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 6,573.
    1. Tbial, § 124—when statements of counsel are not reversibly erroneous. In an action for damages for death of a child, it was not reversible error for counsel for plaintiff to state in his opening argument that the parents of deceased had told him that deceased was a very beautiful child and had long curly hair, where an objection to such remarks was sustained.
    2. Appeal and ebrob, § 1712

      —when error as to damages waived. An assignment of error, in an action for negligent death, that the damages were excessive, is waived where not argued in the opening brief.
    3. Trial, § 131

      —when questioning of credibility of witness by counsel not error. It is proper for counsel for plaintiff, in an action for negligent death, to question the truth of the testimony of a witness for defendant, if the evidence warrants such criticism.
    4. Appeal and error, § 1514

      —when remarks of counsel not reversibly erroneous. Remarks of counsel cannot be complained of as reversible error where an objection to such remarks is sustained.
    5. Appeal and error, § 1514

      —when incorrect statement of counsel is not reversible error. The fact that plaintiff’s attorney, in an action against a railroad company for the negligent death of a child, referred to missing mail, which had been taken from the depot platform where the accident occurred and was found in the house of the parents of deceased about one year before the accident, as United States mail, was not reversible error where the court immediately corrected counsel and stated that it was train mail, as it was, in fact.
    6. Tbial, § 187

      —what constitutes waiver of motion for directed verdict. The introduction of testimony by defendant, after making a motion for a direction of a verdict at the close of plaintiff’s evidence in chief, constitutes a waiver of the motion.
    7. Trial, § 195

      —when refusal of directed verdict for defendant proper. It is proper to refuse a motion for a directed verdict in defendant’s favor, in an action for negligent death, at the close of all the evidence, where the evidence tends to make out a case for plaintiff.
    8. Negligence, § 107

      —what is effect of by parents of child negligently killed. In an action for the negligent death of a child, if the preponderance of the evidence shows that the parents did not exercise the same degree of care towards the child as ordinarily prudent persons would exercise under the same circumstances, and such failure by the parents contributed to the injury, then the defendant should be found not guilty.
    9. Instructions, § 154

      —when modification by eliminating portion referring to burden of proof not error. In an action for the negligent death of a child, the modification of an instruction, which was requested by defendant, placing the duty on the parents of the child to exercise the same degree of care concerning her as an ordinarily prudent person would exercise under like circumstances, and stating that the jury should find defendant not guilty unless they believed from the preponderance of evidence that the parents exercised that care, by depriving the defendant of the portion casting the burden of proof upon plaintiff, was not error where other instructions correctly stated the law as to the burden of proof.
    10. Railroads, § 519

      —when may not maintain push car on platform unlocked. If the presence of a railroad push car upon an abandoned depot platform is calculated to attract little children to come upon the platform and push the car back and forth upon the platform and to ride upon the car, and if that is dangerous to little children, the company has no right to maintain the push car on the platform unlocked.
    11. Rahsoads, § 593

      —when modification of instruction as to right to maintain push car on premises is proper. In an action against a railroad company for the negligent death of a child, which was killed as the result of being struck by a passing train while playing with an unlocked push car on an abandoned depot platform, the modification of an instruction that the defendant had the legal right to place and maintain the car on. its premises, so as to state that defendant ordinarily had such right, was proper.
    12. Railroads, § 593

      —when instruction on liability of railroad for death of child struck by train while playing with push car properly refused. In an action against a railroad company to recover for the death of a child, which was killed by defendant’s train while she was pushing an unlocked push car on an abandoned depot platform, an instruction that defendant was not liable unless the jury found from the preponderance of the evidence that defendant should have anticipated before the day of the accident that deceased or other children would have been attracted to the premises by such push car and would have been injured or killed by a railroad train in playing with such car, was properly refused.
    13. Negligence, § 110

      —when of parents is question for jury.
      Parents who are poor and unable to procure a nurse to look after their children are not required to keep a constant watch over them, and the want of such care cannot be imputed to the parents, the negligence of the parents in a particular case being a question for the jury.
    14. Negligence, § 110

      —when of parent in care of child not shown. Evidence hedd insufficient to show that a poor coal miner, and his wife, who had to take care of a month-old child, were negligent in permitting their 7-year-old daughter to go on the street and visit an abandoned depot platform 700 feet away, where she was struck by a passing train while playing with an unlocked push car .
    15. Railroads, § 582

      —when death of child by train while playing with push car shown. Evidence held sufficient to sustain a finding that deceased, a child 7 years old, was killed by a passing freight train while playing on an abandoned depot platform with an unlocked push car.
    16. Appeal and error, § 1410

      —when verdict not disturbed. A verdict approved by the trial judge should not be disturbed on appeal unless manifestly against the weight of evidence.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed October 10, 1918.
    Rehearing denied and opinion modified November 13, 1918.
    Woodward & Hibbs, for appellant; John G-. Brennan, of counsel.
    R. C. Donoghue, Butters & Clark and Howard H. Bayne, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, Mid Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Bibell

delivered the opinion of the court.

On June 24,1913, Cassie Kosinski, then over 7 years old, while playing upon a railroad platform of the Illinois Central Railroad Company at an abandoned depot at Oglesby in La Salle county, went under the wheels of a passing freight train and received injuries from which she died next morning. She left surviving a father, a mother, four sisters and a brother, and the administrator of her estate brought this suit to recover damages occasioned to the next of kin by her death. An original declaration and additional counts were filed, which charged that she was a child of tender years, etc.; that she was attracted to said platform by a push car, standing thereon; that the same was an attractive nuisance, and that she received her injuries while playing therewith. This was stated in various ways in a very full and elaborate declaration. Defendant pleaded the general issue, there was a jury trial and a verdict for plaintiff for $3,500, motions for a new trial and in arrest of judgment were denied, plaintiff had judgment and defendant appeals.

It is argued that the court erred in permitting Annie Kosinski, a sister of deceased, to testify in rebuttal that she did not in 1913, after her sister was killed, cross the railroad tracks with a sack of coal and get struck by the corner of a car while Homer Reynolds was there. As a witness for plaintiff in chief, she had been cross-examined as to whether such an event had occurred when Homer Reynolds was there. After-wards Homer Reynolds testified for defendant to such an- event, but did not make it of the specific date concerning which Annie had been interrogated. We think it was proper to again interrogate her on that subject after Homer Reynolds had testified. This was an event occurring long after the death of Cassie and had very slight bearing upon the issues in this case, and we fail to see that any error was committed in the ruling. It is argued that counsel for plaintiff made prejudicial remarks to the jury. In opening the case he stated to the jury that the parents of Cassie had told him that she was a very beautiful child and had long curly hair. The court sustained defendant’s objection to the statement. The only effect it could have injurious to defendant would have been to enhance the damages. Appellant assigned as error that the damages awarded were excessive, but that supposed error was not argued in the opening brief and was therefore waived. Objection is made to two statements made by plaintiff’s counsel in the closing argument. He questioned the truth of the testimony of defendant’s witness, Oberstar. This he had a right to do under the evidence, but the court sustained the only objection that was made to that statement. Defendant offered proof of an incident occurring about a year before Cassie was killed, when some mail lying upon the depot platform was missing, and the agent went to the Kosinski house and one of the little girls crawled under a bed and produced it. In discussing this evidence plaintiff’s attorney spoke of it as United States mail, and it is claimed this was rever sible error. The court immediately corrected counsel and he accepted the correction and stated that it was train mail, which was true. We fail to see anything in this statement which could have prejudiced appellant.

The court denied motions by defendant at the close of plaintiff’s evidence in chief, and at the close of all the evidence, to direct a verdict for defendant. It is argued that these rulings were erroneous. After the first motion was denied, defendant introduced testimony and thereby waived that motion. It is entirely clear that there is evidence tending to show that Cassie was playing with the push car when injured and that it was attractive to children of tender years and did attract Cassie to that place and that she was injured while playing therewith. This evidence tended to make a case for plaintiff, and the court properly refused the second motion. It is argued that the court erred in modifying instruction No. 23, offered by defendant. As offered, it said that it was the duty of each of the parents of Cassie to exercise the same degree of care concerning her as an ordinarily prudent person would exercise under like circumstances, and that the jury should find defendant not guilty unless they believed from the preponderance of the evidence that said parents did exercise that care. The first part of the instruction was given as asked, but the latter part was so changed as to tell the jury that if they believed from the preponderance of the evidence that at the time of the injury to Cassie her parents did not exercise that degree of care, and that such want of care on the part of the parents contributed to the injury, they should find defendant not guilty. The instruction, as given, did not misstate the law, for the law is that if the preponderance of the evidence shows that the parents did not exercise that care and such failure by the parents contributed to the injury, then defendant should be found not guilty. The modification did deprive defendant of that portion of the instruction which cast the burden of proof upon the plaintiff upon that subject. If that had been the only instruction upon that subject, the modification would have been erroneous. Several general instructions given for defendant covered the ground, but No. 12, given for defendant, was direct and complete on this subject. It stated that in order for the plaintiff to recover, he must prove by a preponderance of the evidence eight propositions stated, the fifth of which was: “That the parents of said Cassie Kosinski, and each of them, were in the exercise of due care for their child’s safety.” It was then stated in very decisive language that the burden of proving each of these propositions was on the plaintiff, and that if he failed to prove any one of them, by a preponderance of the evidence, or if on any one or more of them the evidence was evenly balanced or preponderated for defendant, plaintiff could not recover and the jury should find defendant not guilty. No. 18, as requested by defendant, said that defendant had the legal right to place and maintain said push car on its premises. The court so modified it as to read that defendant had that legal right ordinarily. The instruction was calculated to mislead the jury. The section men who had charge of this push car, and sometimes used it and sometimes left it at the north end of the depot away from the tracks, were provided with a chain and lock, and the jury might reasonably infer from the evidence that it was their duty to lock it when leaving it on said platform. It was left unlocked on this platform at the time in question, and the declaration so charged. If the presence of that push car on the platform was calculated to attract little children to come upon the platform and push the car back and forth upon the platform and to ride upon said car, and if that was dangerous to little children, then the defendant did' not have the right to maintain said push car on said platform unlocked. The jury would have been likely to understand from, said instruction that defendant had that right. Therefore the instruction might have been refused, and its modification did not harm defendant. The court refused No. 25, offered by defendant, which said that defendant was not liable, unless the jury found from the preponderance of the evidence that defendant should have anticipated before the day when Cassie was injured that she or other children would have been attracted to the premises by said push car and would have been injured or killed by a railroad train in pushing with said push car. It was not necessary for defendant to have anticipated just how a child might be injured at that place. It was sufficient if defendant had an opportunity to know that some injury might result to children playing with such unlocked push car on that platform. The deelaration was practically directed to the fact that said push car was unlocked. We find no reversible error in the rulings of the court upon the instructions.

It is contended that the parents were negligent and that therefore plaintiff cannot recover. The father was a coal miner and went into the mine at 6 a. m. that day and cam© out about 3:30 p. m. The family had supper about 6 p. m. The mother had been doing her family washing that day. She had a baby a month old and it was cross and required her attention. During the supper the father became ill and went to his bedroom and lay down and went to sleep. Cassie was 7 years and 9 months old and was bright and intelligent, and had been going to school alone two blocks away from the home for 2 years. She went out upon the porch after supper, and the mother was busy with the cross baby, and the mother did not know that Cassie left the porch. The old depot was 700 feet away. Twenty minutes after Cassie left the porch the family were notified of the injury. In Illinois Cent. R. Co. v. Warriner, 132 Ill. App. 301, we had occasion to cite and fully discuss the decisions of the Supreme Court of this State on the question of the care for their children required of parents who are laboring people. We need not repeat those authorities here nor all that is there said, but it was there held that where the parents depend upon their labor for the subsistence of their children and are unable to employ nurses, who may keep a constant and vigilant eye upon their children, it must be left to the jury to say whether they were guilty of negligence in suffering their children to be upon the streets, and that the same rule should not apply to such parents as to those whose means enable the mother to give constant personal attention to her children, and that the law does not require that persons in such a situation in life shall keep a constant watch over their children nor can the want of such care be imputed to them as negligence. In affirming that judgment in 229 Ill. 91, the Supreme Court held that whether the parents exercised the degree of care required of them was a question of fact for the jury. We are of opinion that the evidence did not require the jury to find that these parents were negligent on the day in question.

The Village of Oglesby is 4 or 5 miles south of the City of La Salle on the main line of the Illinois Central, which is there a - single-track road, running in a north and south direction. Prior to December, 1912, the depot at Oglesby was on a side hill. Near the Oglesby coal mine a little way from the depot was a ravine and then a sharp fall of 100 feet to the vicinity of the Vermilion River, and east of the river was Deer Park. The depot was west of the track and was 48 feet long north and south. Between the depot and the track was a platform 14 feet wide and somewhere from 150 to 250 feet long. The depot was a little south of the center of the platform. The platform was of cinder covered with crushed rock and the surface was smooth. There was a wooden curbing around it. The platform was near enough to the track so that the bodies of box cars projected over it. In December, 1912, this depot was closed and a new depot opened half a mile or a mile further south, in which direction the population had shifted since the old depot was built. Thereafter the old depot was kept locked and was used only by the section men in which to store their tools, etc. There was on the platform what is called a push car, having a platform with four wheels under it. The ear platform was about 8 feet long and 5 or 6 feet wide and was used by the section men when they wished to carry rails or ties. Sometimes it was used, but often it remained upon the platform. A chain was provided by which its wheels could be locked when not in use, and it sometimes stood at the north end of the depot locked. It often was on the platform unlocked. This. accident happened July 13, 1913. The proof from both sides shows that little children often went upon the platform to play on and about this push car. They played upon it when it was locked. When it was unlocked they pushed it up and down the platform and some of them rode upon it. This was often done in the presence of the employees of the railway. A public highway reached the north end of the platform but there was no fence about the depot, which was just outside the limits of the village, so that ehildren and others could come upon it from any direction. That this platform and this push car were attractive to children of tender years and led them in their play to be near the track is proven by witnesses for both parties, and is not disputed. The material question is whether the jury were warranted in finding from the evidence that Cassie Kosinski at the time she was injured was playing on that platform with this push car. Staney Waytkes lived in Deer Park, east of the river. After supper on the night in question he left his home, crossed the river, went up steps provided for that purpose to the right of way of the Illinois Central Railroad, crossed the track about the north end of this platform, and went south on the platform on his way to the main part of the Village of Oglesby. He had known the Kosin'skis in the old country and was acquainted with the children. Just prior to his reaching the platform a passenger train had gone south at somewhere from 7:05 to 7:25 p. m. On a passing track a few hundred feet south of the platform! stood a yard engine from La Salle and directly behind it 28 loaded box cars, and, south of those, 8 empty coal cars, all to be taken to La Salle and waiting only for the passenger train to pass. Waytkes testified that when he came upon the platform the passenger train had gone south and this freight train had started north and was pulling out of the passing track. He testified that at that time Cassie was towards the south end of the platform, close to the track, playing with and pushing this push car north, and that he passed west of her on the platform and the freight train passed him on the track. When the train got part way by him he heard screams or shouts and turned around and started north to see what was the matter and saw a brakeman just taking Cassie off from the track. Her legs had been run over and her feet cut off. There was considerable commotion. Various persons gathered there. Mrs. Kosinski came running from her home 700 feet away and took the child and started home with her, and Waytkes resumed his way south to Oglesby. If his story was true, it made a case for the plaintiff when coupled with other proof that Cassie, who was then 7 years, 9 months and 11 days old, was a bright, intelligent and careful child and that no one saw the accident happen. Defendant seeks to meet this proof in several ways. It is claimed that on cross-examination Waytkes told different stories as to exactly where he saw Cassie on the platform and exactly where he saw her picked up by the brakeman. The place where she was picked up a little way north of the depot was fixed by the evidence of other witnesses and by blood along the rail. Waytkes testified through an interpreter and testified that he could talk but little English. A few days before the trial Waytkes had been called to the office of the Oglesby Coal Company, for which he worked, and had been examined in English by an agent of the railroad company and his statement taken down by a stenographer, and this statement was used in cross-examination and was introduced in evidence and was supported by the testimony of the agent and of the stenographer. Defendant claimed that in that statement Waytkes differed in certain particulars as to places from what he testified in chief. Defendant contends that it was thereby satisfactorily shown that his evidence was false. This cross-examination and this statement were competent to be considered by the jury in determining whether they believed the witness. The verdict shows that the jury did believe him:. We have carefully read his evidence in the re'cord and are satisfied that it did not require the jury to disbelieve the witness. He evidently spoke but little English and we are inclined to the opinion that his different statements as to the places were due in part to misunderstandings between himself and the interpreter and sometimes to his misunderstanding the question put to him. Some of the misunderstandings the witness himself straightened out before he left the stand. He never said anything contradicting the statement that the girl was pushing the push car so close to the track and that he heard her scream and saw her taken out from underneath the train or off the rails. Defendant sought to contradict him in other ways. Two laboring men, Oberstar and Stein, were stealing a ride on top of a box car about the middle of the line of box cars. They were seated on the board on the middle of the car facing west. Oberstar testified that he saw this little girl running along next to the second or third car south of them and putting her hand on the passing car, and that she did not have a push car. Plaintiff’s counsel claim, from the proof as to the height and width of the box car and the fact that this was a straight track there, that a person so seated on the top of the car on the center board could not see a child next to or near a car two or .three cars back. Stein, who corroborated him in part, testified that a person close to the car could not be seen from their position. Defendant also sought to prove that the push car then stood at the north end of the depot, and that a woman with a baby was seated thereon. There was proof to that effect. There was also proof that that woman and baby had been there, but were not there after the passenger train went south. There was also proof that after the accident different witnesses thought they noticed the push car at different places on the platform towards the north end of the depot. Some of the witnesses gave the name of the woman, but only one testified that she sat on that push car after the passenger train went by. All this evidence was for the consideration of the jury; and the instructions were such that the jury could not find for plaintiff unless they believed that Cassie at the time of her injury was pushing this car close to the track. Upon a careful consideration of all this evidence we cannot say that the jury, acting reasonably in the eye of the law, should not have believed the testimony of Waytkes or that another jury would return a verdict against the plaintiff.

On the cross-examination of the two sisters of Cassie who testified and of other witnesses for plaintiff, defendant sought to show that the Kosinski children, including Cassie, before that time had often gone about the track and the coal company’s dump, picking up stray pieces of coal and carrying the same either in a little sack or in the dress of such child. This was denied by Cassie’s sisters; and other witnesses testified that they had never seen Cassie doing that. Defendant also interrogated plaintiff’s witnesses as to the picking up of coal by Cassie’s sisters for months after this accident. This also they denied. Defendant produced numerous witnesses who testified that the Kosinski children had often been seen by them picking up coal along the track and at the dump, and also picking up refuse from the dump from the company’s store near by. All this was immaterial, on the question how the accident happened, unless Cassie was picking up coal at the time she was hurt. The only evidence tending to show that was by one witness for defendant, who testified that after the accident and after the child had been removed, he saw a sack on the platform opposite the depot which had some coal in it, and by another witness for defendant who testified that he saw two sacks on that platform. The plaintiff showed that a number of other children were playing on the platform at the same time, and no one testified to seeing Cassie have such a sack or any coal or identified the sack as one which she had carried. Our conclusion is that this evidence is insufficient to disturb the verdiet, and that as to the facts, a verdict either way approved by the trial judge could not be disturbed by this court as manifestly against the weight of the evidence. The judgment is therefore affirmed.

Affirmed.


text:
    H. Willis Binnie, Appellee, v. Western Live Stock Insurance Company, Appellant.
    Gen. No. 6,580.
    1. Insurance, § 436

      —Uncling effect of requirement for notice of sickness of animal. The provision in a contract for insurance of a stallion that the insurer should not be liable if the insured, in case of sickness or accident to the animal, should fail to give notice at once of such sickness or accident, with the name and address of the veterinarian employed, is binding upon .the parties.
    2. Insurance, § 380

      —binding effect of provision of nonwaiver of defenses by furnishing proofs of loss. The condition, in proofs of loss of a stallion sent to the insured by the insurer, that the furnishing of such proofs in no manner waived any defenses the insurer then had or might have to the payment of any claim thereunder, prevents the furnishing of same from being a waiver of any such defenses.
    3. Insurance, § 683

      —when correctness of statements in proofs of loss as to cause of death of animal is question for jury. In an action on a policy of insurance on the life of a stallion, it was a question for the jury whether the statements in the proofs of loss that the stallion died of the illness it had on the first day of its sickness, or contradictory testimony, at the time of trial 3 years later, that the horse did not die of such illness, were true.
    4. Insurance, § 690

      —when instruction on estoppel to claim forfeiture of policy for failure to give notice of sickness of animal is erroneous. In an action, on a policy of insurance on a stallion, an instruction that if the insurer forwarded to the insured blank proofs of loss and the insured filled out such proofs of loss and returned them to the insurer and the latter received them and retained them-, then it was estopped to claim a forfeiture by reason of the failure to give notice of the sickness of the horse, was erroneous as depriving the insurer of a valid defense if the evidence showed that the horse died of the same illness that affected it the first day of its sickness, as stated in the proofs of loss.
    5. Insurance, § 652

      —when evidence of sending of proofs of loss to insurer admissible. In an action on a policy of insurance on the life of a stallion, it was not error to permit plaintiff to testify that he sent proofs of loss to defendant.
    6. Insurance, § 590

      —what is insufficient replication to plea of failure to give notice of sickness of animal. It is not a sufficient replication to a plea, in an action on a policy of insurance on a stallion, that plaintiff failed to give notice of the sickness of the animal, as required by the policy, to state that plaintiff had delayed suit at the request of the adjuster, and did not commence suit until informed that the claim would not be paid.
    7. Insurance, § 652

      —when meaning of proofs of loss of animal may be explained. Proofs of loss of a horse are not part of the contract of insurance, and the meaning thereof may be explained within certain limits.
    8. Insurance, § 652

      —what evidence is admissible to explain statement in proofs of loss as to treatment of sick animal. In an action on a policy of insurance on the life of a stallion, it was proper for plaintiff to explain a statement in the proofs of loss that treatment was given for “influenza which affected heart,” by showing that plaintiff was not a veterinarian, that he did not himself know what the affection was, that that statement, was made to him by a veterinarian who attended the horse and he supposed it to be true when he made the proofs of loss, but after-wards ascertained that was not the malady for which the horse was treated.
    9. Insurance, § 624

      —what evidence of statements of adjuster after loss as to payment of claim properly excluded. In an action on an insurance policy on the life of a stallion, it was proper to exclude evidence of statements by defendant’s adjuster after the loss that there was no question but that the claim would be settled promptly, and that, while plaintiff ought to have notified the company, as the policy required, that he did not think it made any difference, where the adjuster was merely expressing his opinion as to what the company would do.
    Appeal from the Circuit Court of Kane county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed and remanded.
    Opinion filed October 10, 1918.
    Thomas J. Graydon, of Chicago, and Robert G. Barley, of Geneva, for appellant.
    DeGoy B. Ellis, of Elgin, and Irving M. Western, of Elgin, for appellee.

      See Illinois Notes -Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Under date of January 12, 1915, appellant insured appellee in the sum of $500 upon a Clydesdale stallion, owned by the appellee. On March 29, 1915, the horse was taken from a train in a sick condition. He died on April 2,1915. Appellee furnished appellant proofs of loss. Appellant did not pay the policy and this suit was brought thereon. After much pleading there was a jury trial and a verdict and a judgment for plaintiff for $562.50, being the policy and interest. Defendant appeals and plaintiff assigns cross errors.

It is argued that the court erred in sustaining a demurrer to defendant’s second rejoinder to plaintiff’s seventh replication to defendant’s second plea. The second plea set up that the policy contained an agreement that defendant should not be liable under the policy if plaintiff, in case of sickness or accident to the animal, should fail to give notice at once to the secretary of defendant of such sickness or accident, with the name and address of the veterinarian employed; and the plea averred that said horse became sick on March 29, 1915, and so remained until it died on April 2, 1915, and- that plaintiff did not give said notice until after the death of the animal, on April 2nd, and that because thereof defendant was not liable on the policy. The contract so set out was one which the parties had a right to make and which was binding upon the parties. Illinois Live Stock Ins. Co. v. Kirkpatrick, 61 Ill. App. 77; Talbot v. Atlantic Horse Ins. Co., 193 Ill. App. 587; Van Valkenburg v. Granite Live Stock Ins. Co., 205 Ill. App. 28; Swain v. Security Live Stock Ins. Co., 165 Mass. 321, 43 N. E. 105; Johnston v. Northwestern Live Stock Ins. Co., 107 Wis. 337, 83 N. W. 641; Green v. Northwestern Live Stock Ins. Co., 87 Iowa 358, 54 N. W. 349; Alston v. Northwestern Live Stock Ins. Co., 7 Kan. App. 179, 53 Pac. 784. The plea therefore presented a good defense. The seventh replication to said plea set up that after the horse died and after defendant knew plaintiff had failed to render said notice, as required by the policy, defendant sent plaintiff printed proofs of his claim for plaintiff to fill out and return, and which proofs plaintiff did fill out and return and which proofs defendant received and retained without objection. The second rejoinder to said replication set up that in said proofs of claim sent by defendant to plaintiff was the following condition: “The insured hereby agrees that the furnishing of this proof of death to the insured by the insurance company in no manner waives any defense it now has or it may have to the payment of said claim made hereunder. ’ ’ The rejoinder averred that as a part of said proofs of claim plaintiff executed said condition and agreement and returned the same with the proofs to defendant, and that thereby any alleged waiver by sending said proofs was prevented and waived by the plaintiff. It has frequently been held that such a condition, expressed either in the proofs of loss sent by an insurance company to a claimant for his execution, or in a letter accompanying the same, prevents the furnishing of proofs to the claimant from being a waiver of any such defense. Crotty v. Union Mut. Life Ins. Co., 144 U. S. 621; Meech v. National Acc. Society, 50 N. Y. App. Div. 144, 63 N. Y. Supp. 1008; Tuttle v. Iowa State Traveling Men’s Ass’n, 132 Iowa 652, 104 N. W. 1131; Loesch v. Union Casualty & Surety Co., 176 Mo. 654, 75 S. W. 621; Elhart v. Pacific Mut. Life Ins. Co., 47 Wash. 659, 92 Pac. 419; Roth v. Mutual Reserve Life Ins. Co., 162 Fed. 282. The second rejoinder therefore set up a good answer to the seventh replication to the second plea and the court erred in sustaining the demurrer thereto.

Plaintiff produced proof tending to show that the horse did not die of the illness which it had when it was taken off the train on March 29th. Defendant introduced the proofs of loss which plaintiff testified he filled out and which he furnished to the company, and also a letter which he sent to the company a few days later. It is clear therefrom that when plaintiff filled out the proofs of loss and wrote said letter he considered that the horse died of the disease which he had on March 29th. Under the provision of the policy, if the horse died from that disease, defendant was relieved of responsibility by plaintiff’s failure to give notice at once, which both sides agree means within a reasonable time. It should have been submitted to the jury to determine whether the statements contained in the proofs of loss or those testified to by plaintiff nearly 3 years later were true. The court, by its first instruction, given at plaintiff’s request, deprived' defendant of that defense by telling them that if defendant forwarded to plaintiff blank proofs of loss and plaintiff filled out said proofs and returned them to defendant and defendant received and retained them, then defendant is estopped to claim a forfeiture by reason of plaintiff’s failure to give notice of the sickness of the horse. It was error to give this instruction and it deprived defendant of a valid defense, if the horse died of the sickness which he had on March 29th.

As a reversal must follow, we deem it unnecessary to discuss the evidence upon the question whether this horse died of the disease from which he was suffering on March 29th, or whether he recovered from that and died of something else, happening on April 2nd. We are of opinion that the court did not err in permitting plaintiff to testify that he sent proofs of loss to the defendant.

In his cross errors appellee prayed, among other things, “that said judgment may be reversed and said cause not remanded.” If that prayer were granted, it would end the suit adversely to appellee. We assume that appellee’s counsel used those words inadvertently. There is no abstract setting out sufficiently the matters relied upon by appellee in his cross errors. We might decline to consider them on that account, but we think best to consider them upon the merits. Appellee contends that the court erred in sustaining a demurrer to his second amended fifth replication to defendant’s second plea. The second plea has been stated above. Said replication sets up that printed proofs of loss were sent by defendant to plaintiff and were by plaintiff received and returned. It sets up certain answers in the proofs of loss; that afterwards defendant sent an adjuster to plaintiff and they met and that adjuster said defendant had investigated the claim and did not believe it was liable; that plaintiff then said that if the claim was not paid at once he would sue the defendant; that said adjuster requested plaintiff not to start suit but to wait until he could make a further investigation and report to defendant; that defendant felt that said claim was just and would probably pay it, though technically all of the conditions of the policy had not been complied with; that plaintiff did delay enforcement of his claim until finally informed by defendant that, after investigation, it had finally decided that it would not pay the claim. If this had been a reply to a plea of the statute of limitations, where plaintiff had at request of defendant delayed suit until the statute had run, it might be a good reply to such pipa. We are of opinion, however, that it constitutes no reply to the plea that plaintiff failed to give notice of the sickness of the animal, as required! by the policy. The demurrer was therefore properly sustained.

Appellant offered in evidence said proofs of loss, executed by appellee, as admissions and as tending to impeach the statements made by appellee in his testimony in chief. The court refused to permit him to explain the meaning of -the statements in his proofs of loss. Such proofs were not parts of the contract. It is clear that such statements may be explained within certain limits. Smith v. Mayfield, 163 Ill. 447; Supreme Tent Knights of Maccabees v. Stensland, 206 Ill. 124; Dady v. Condit, 209 Ill. 488; Chicago, B. & Q. R. Co. v. Bartlett, 20 Ill. App. 96 (where numerous authorities are cited); Cleveland Seed Co. v. Moore, 142 Ill. App. 615; Harrison v. Thackaberry, 154 Ill. App. 246; Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329, 335; Aetna Ins. Co. v. Stevens, 48 Ill. 31; Supreme Lodge, Knights of Pythias of the World v. Beck, 181 U. S. 49; 19 Cyc. 854; 14 R. C. L. 1445,1446; Jones on Evidence (2nd Ed.), sec. 296. Appellee should have been permitted to explain his meaning in said language used in the proofs of loss, within the limits of the foregoing decisions. For example, he stated that the treatment was given for “influenza which affected heart.” We think it would be permissible for him to explain that he was not a veterinarian, that he did not himself know what the affection was, that that statement was made to him by the veterinarian who attended the horse and he supposed it to be true when he made the proof of loss, but afterwards ascertained that that was not the malady for which the horse was treated. The effect of the explanations upon the credit to be given by the jury to plaintiff’s testimony would be a matter for the jury. Appellee testified that Arvedson, the agent who took the application for the policy, told him after the death of the horse that there would be no question but that the claim would be settled promptly, and that while appellee ought to have notified the company, as the policy required, that he did not think it would make any difference any way. The court excluded those statements by Arvedson. We think the court was correct in this. Arvedson was not professing to bind the company but only to give his opinion as to what the company would probably do. We feel it unnecessary to determine the extent to which the agent could bind the company. The judgment is reversed and the cause is remanded.

Reversed and remanded.-


text:
    Julia E. Laymon, Appellee, v. Estate of Henry Francis, Deceased, Appellant.
    Gen. No. 6,585.
    1. Pabent and child, § 34

      —rebuttal of presumption of gratuity of services of member of family. Where services are rendered by one admitted into the family as a relative, the presumption of law is that such services are gratuitous, and that the parties do not contemplate payment of wages therefor, but this presumption may be overcome by proof.
    2. Pabent and child, § 34

      —what proof sufficient to overcome presumption of gratuity of services of member of family. The proof necessary to overcome the presumption, of gratuity of services rendered by one admitted into the family may he either of an express contract, or of a contract established by such facts and circumstances as show that both parties, at the time the services were rendered, contemplated or intended pecuniary recompense other than that which arises naturally out of the family relation.
    3. Pabent and child, § 66

      —when evidence as to brother of child stating that parent had sent for her .is admissible. On a claim by a daughter against the estate of her father for services rendered intestate in his lifetime, evidence that claimant’s brother came to her house and told claimant that her father had sent him after her, while not binding. on the estate to prove that deceased did send for claimant, was competent as tending to show what induced claimant to go to. her father’s home, and might have some bearing on the question whether she expected compensation or not.
    4. Pabent and child, § 66

      —when evidence that parent supported child previous to her entering his home is admissible in action for services. On a claim by a daughter against her father’s estate for services rendered to intestate in his lifetime, evidence that the father for the period of 10 years immediately preceding the time claimant entered his home had supported claimant and her children on his farm, was competent
    5. Pabent and child, § 66

      —when evidence as to division of property by parent is admissible in action for services. On a claim by a daughter against her father’s estate for services rendered intestate, evidence that a few years before his death, and during the alleged term, of service, deceased divided a large sum of money equally among his children, including claimant, was improperly excluded.
    6. Parent and child, § 68

      —when instruction on right of child to recover for services is erroneous. On a claim by a daughter against her father’s estate for services rendered deceased in his lifetime, instructions that when an adult daughter marries and lives separately from her father, the family relation is dissolved and the presumption arising therefrom no longer exists, and when the daughter returns to her father’s home and renders services, she may recover therefor, unless the defense proves that they were rendered as a gratuity, were erroneous.
    7. Pabent and child—when instruction on bar of claim, for services is improper. On a claim by a daughter against her father’s estate for personal services rendered to- intestate covering a period of 21 years, an instruction that the claim was barred, except for the period of 5 years preceding the death of intestate, was improper, if the compensation, a home, was not payable until the death of deceased.
    8. Pabent and child—when presumed that note given to child intended as payment on debt not barring claim. On a claim by a daughter against her father’s estate for personal services rendered intestate during a period of 21 years preceding the latter’s death, it must he presumed that a note given claimant within 5 years preceding his death was intended as a payment on his debt for services rendered to him, and hence the statute of limitations was not a bar to the proceedings.
    9. Frauds, Statute of, § 28

      —what oral promise as to property void under. An oral promise by a father to give his daughter his home is void under the Statute of Frauds.
    10. Pabent and child, § 66

      —what evidence admissible to show intention to pay for services of child. Evidence that a father, in his daughePs presence, said that he was going to give her his home for her services as housekeeper and nurse, although relating to a void oral contract, is competent as tending to prove that each party intended that compensation should he paid for the services.
    11. Pabent and child, § 58

      —right of child to recover value of property unconveyed in payment for services. A daughter who renders services to her father under an oral contract by which the latter agrees to make payment by the conveyance of certain property, is entitled to recover the value of the property from the estate of her father, if such conveyance is not made.
    Appeal from the Circuit Court of Livingston county; the Hem. G. W. Patton, Judge, presiding. Heard in this court at the April term» 1918.
    Reversed and remanded.
    Opinion filed October 10, 1918.
    F. A. Ortman and L. M. Shelly, for appellant.
    E. A. Simmons, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On August 3, 1915, Henry Francis died intestate in Livingston county. Letters of administration were granted to his son, Nelson Gr. Francis. On February 28, 1916, Julia E. Laymon, his daughter, filed a claim against the estate of said deceased for $5,163, for services as housekeeper and nurse for about 21 years. On a jury trial in the County Court the judge directed a verdict for the estate and disallowed the claim. The claimant appealed to the Circuit Court, where, on a jury trial, claimant had a verdict for $3,328. A motion by the estate for a new trial was denied and claime ant had a judgment upon the verdict, to be paid in due course of administration. This is an appeal by the estate. The principles of law applicable to the claim and the defense have many times been announced by the court of this State, and are thus stated in Heffron v. Brown, 155 Ill. 322:

“Where services are rendered by one admitted into the family as a relative, the presumption of law is that such services are gratuitous, and that the parties do not contemplate the payment of wages therefor. This presumption, however, may be overcome by proof. The proof necessary to overcome the presumption may be either of an express contract, or of a contract established by such facts and circumstances as show that both parties, at the time the services were rendered, contemplated or intended pecuniary reconv pense other than that which arises naturally out of the family relation. (Miller v. Miller, 16 Ill. 296.) * * * But when it is said, that a contract to pay for such services may be implied, something more is meant than the mere promise to pay, which the law implies where one person does work for another with the knowledge and approbation of that other. The implied promise thus raised by the law is rebutted, when there is shown such a relation between the parties as to exclude the inference that they were dealing on the footing of contract. (Ayres v. Hull [5 Kan. 419]; 3 Am. & Eng. Encyc. of Law, page 861.) The evidence must show that, when the services were rendered, both parties expected them to be paid for. (Miller v. Miller, supra; Byers v. Thompson, 66 Ill. 421; Fruitt v. Anderson, 12 Ill. App. 421.) The facts and circumstances must be such as to show that, at the time the services were rendered, the one expected to receive payment and the other to make payment. (Fruitt v. Anderson, supra.)” Claimant introduced proof tending to show that compensation was intended by the parties. The estate introduced evidence tending to show that compensation was not intended by the parties. The proof introduced by, claimant tended to show that the claim is meritorious for a large sum. The proof introduced by the estate tended to show that claimant (á widow in destitute circumstances) and her three minor children were furnished a home and supported by the father without any expectation on either side of compensation. As we conclude the case must be tried again, we think it proper not to express any views as to the character and preponderance of the evidence introduced.

Claimant was permitted to prove, over objection, that while she was living on a farm in the country, her brother, Nelson G-. Francis, came to her house, told claimant that her father had sent him after her, and carried her to her father’s home in Odell, where she entered upon her services for her father. Claimant did not prove that her father in fact sent his son, Nelson, to bring her to his home, and Nelson testified for the estate that his father did not give him any directions concerning the moving of claimant from the farm to his home in Odell. The estate insists that this evidence of what Nelson said to claimant was incompetent and should have been excluded. It was not binding on the estate to prove that deceased did send for claimant, but we think it competent as tending to show what induced claimant to go to her father’s home, and might have some bearing upon the question whether she expected compensation or not.

We are of opinion that there is no proof in this record which would justify charging this estate for any services claimant rendered to her sister, Emeline, who was ill in their father’s home when claimant removed there.

The court refused to admit proof offered by the estate that Henry Francis, the father, for 10 years immediately preceding the time when she came to his house, had supported claimant and her children upon his farm. We conclude this evidence was competent. The jury might therefrom draw some proper inference as to whether the deceased was merely transferring the support of claimant and her family from his farm to his home or whether he intended compensation to her for what she thereafter did in his home.

The court refused to permit proof by the estate that a few years before his death, the deceased divided $7,000 equally among his children, including claimant. This was a financial transaction between deceased and the claimant during the period covered by this claim. We think the evidence should have been admitted. The jury might have drawn therefrom an inference that if he had intended payment to claimant he would have paid her out of that money before making that division, or that at that time he considered her entitled to no more than his other children, unless, indeed, he had promised or intended to pay her by conveying to her the home.

Complaint is made of the rulings of the court on various instructions. They are not numbered in the record, and the numbering in the abstract is therefore incorrect and we can only refer to them generally. In several instructions the question was submitted to the jury whether the claimant returned to her father’s home and rendered services to her father “at his request.” We do not find any evidence that this was done at his request, and if the evidence is fully abstracted we are of opinion that a special verdict that deceased requested her to return could not be sustained. Nelson was not living at his father’s home at the time he carried claimant to his father’s house and there was nothing to show that he was ever his father’s agent upon any subject. The jury could not be permitted to guess that the father sent for his daughter. He may have done so, but it is quite as reasonable to believe that the adult children, married and living away from home, concluded that since his housekeeper and daughter, Emeline, was afflicted with a fatal malady, it was necessary that some other child should go back to the father’s home and act as his housekeeper, and concluded that claimant, a widow with minor children and without resources, was the one who could most readily perform that office. By several ins.tructi.ons the court advised the jury that when an adult daughter marries and lives separately from her father, the family relation is dissolved and the presumption arising therefrom no longer exists, and that when the daughter returns to the father’s home and renders services, she may recover therefor, unless the defense proves that they were rendered as a gratuity. We are of opinion that that position is not correct. They are still father and daughter. The family relation still does exist. This principle has been applied to many relations besides that of parent and child. It has been applied where a nephew or a niece goes to the home of an uncle or of an aunt, or a sister to the home of a brother, and services are rendered by the one or support by the other, and in all such eases the application of the rule above stated has not been defeated by the fact that up to a certain date they did not live together. In Faloon v. McIntyre, 118 Ill. 292, a daughter married and went away from her father’s home and established a home of her own with her husband. Afterwards her father and mother came to live with her and her husband, and afterwards the son-in-law made claim for support of the father and mother. It was held that the above rule as to the family relation was applicable. An instruction given concerning the preponderance of evidence in the case was similar in principle to the one on that subject discussed in Elgin, J. & E. Ry. Co. v. Lawlor, 132 Ill. App. 280, and 229 Ill. 621. In our opinion in that case we sought to save the instruction from condemnation, but the Supreme Court held that its effect was to wholly omit the number of witnesses testifying to a particular fact or state of facts as being one of the things which the jury were bound' to consider, and the conclusion reached was that the instruction would be misleading where the question of numbers was important. In this case, on the question whether claimant "had made statements calculated to defeat her claim, the preponderance in number of witnesses was clearly against the claimant. The instruction referred to was therefore erroneous. Appellant contends that the court should have instructed the jury that the claim was barred by the statute of limitations, except as to the last 5 years before the death of Henry Francis. There are two reasons why the court could not give such an instruction. There is proof tending to show that the father was to compensate claimant by giving her his home in Odell at his death. If the jmy found that position established by the preponderance of the evidence, then compensation was not due until the father died and the statute of limitations did not apply. Again, there was proof that within 5 years before the father died he assigned and delivered to her a note for $300; that he afterwards collected the interest thereon, but that the maker of the note paid the $300 to claimant. Upon the supposition that the father was indebted to claimant for the services in question (which is the only theory upon which the statute of limitations applies), then, in the absence of any other evidence on that subject, the presumption is that this note was delivered to claimant as a payment upon that indebtedness, under the principles stated in Bromwell v. Bromwell’s Estate, 139 Ill. 424, and Miller & Graves v. Pratz, 179 Ill. App. 204. We there applied the rule to a check, and we think the same principle applies to a note.

There is evidence tending to show that deceased several times said that he was going to give claimant his home in Odell at his death and that this was said one or more times in her presence. He did not give her said home. It is conceded that if this was a contract, it was void under the Statute of Frauds because not in writing. The evidence on this subject is not harmonious and relates to several different conversations. From some of the testimony it might be understood that the deceased was talking merely of his plan for dividing his property among his children, and that he did not mean to express any obligation to give this home to his daughter. Other testimony on this subject is capable of being understood to mean that said home was to be given her for her services for him as housekeeper and nurse. Her assent might perhaps be implied from her presence when the statement was made, and this would tend to establish a contract to give her a home for her services. Though void, it was competent so far as it tended to prove that each party intended compensation. The serious questions are whether, if such was the contract, she could recover under this claim, which is for specific services, week by week, at a rate specific in the claim filed, and whether she could recover more than the value of the home. Peyton v. McLennan, 129 Ill. App. 654, holds that such a contract prevents a recovery under a quantum meruit, except where the contract is inoperative as against the Statute of Frauds or for some kindred reason. In a very similar case of Whetstine v. Wilson, 104 N. C. 385, it was contended that if there was such a special contract, unperformed, the law could not substitute a different contract from what the parties had made and permit a recovery on a quantum meruit. But the court held that as the intestate failed to perform his part of the special contract, the law implied a promise on his part to pay reasonable compensation for the services rendered by the claimant in pursuance of said special contract. Hudson v. Hudson, 87 Ga. 678, was a similar case, with the same holding, with the addition that claimant could recover no more than the value of the home place there promised to be conveyed, and that there should be deducted from that valué what claimant had received. Those cases cite other authorities in support of those rules. We are satisfied with these rules as productive of practical justice. It follows that if, on another trial, the jury find that the services were rendered under a contract that they should be paid for by a conveyance of the home place by the father to the claimant, and that such conveyance was not made, then claimant would be entitled to recover the value of said home place when the father died, and it would in such case be a question for the jury, under the proofs then presented, whether said $300 paid to her by the note referred to should be treated as a payment thereon.

For the reasons stated, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Carnes

text:
    Board of Education Union District No. 4, Counties of Cook and Lake, State of Illinois, Appellant, v. School Directors of District No. 90, County of Lake and State of Illinois, Appellee.
    Gen. No. 6,551.
    1. Schools and school districts, § 184

      —necessity of procuring consent of school directors of another district to selection of high school as basis for judgment for tuition. The fact that a school district at whose high- school children from another district attended, supposed that the Act of 1913 (Hurd's Rev. St. ch. 122, § 470, J. & A. f 10143), requiring the consent of the school directors of the home district to the selection of the high school by the parent or guardian, was repealed by the Act of 1915 [Callaghan’s 1916 St. Supp. If 10143(1)], admitting pupils without such approval, is not a basis for a judgment for tuition against the home district, there being no attempted compliance with the Act of 1913.
    2. Schools and school districts, § 56

      —what is not valid approval of selection of high school in another district by directors. Under section 111 of the School Law (J. & A. j[ 10132), providing that no official business shall be transacted by school directors except at a regular or special meeting, there is no valid approval of the selection of a high school in another district by the directors of the home school district, where two of the three directors, not acting at a meeting of the board, separately sign a written approval of the high school.
    3. Appeal and error, § 1802

      —when cause not remanded. A cause will not be remanded, upon reversal, where no presumption arises that the facts will appear other or different on another trial.
    4. Schools and school districts, § 145

      —nonliability for costs. A judgment for costs against a school district is improper.
    Appeal from the County Court of Lake county; the Hon. Perrt L. Persons, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed with finding of facts.
    Opinion filed October 10, 1918.
    Howard P. Castle and Benjamin H. Miller, for appellant.

      Cooke, Pope & Pope, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Appellant, Board of Education, sued the appellee, School Directors, in assumpsit to recover tuition of $50 a year per pupil for two pupils from appellee’s district attending its high school in the school year 1915-16, and four pupils, including the first mentioned two, for the year 1916-17. The suit was brought under the Act of 1913 (Hurd’s Rev. St. “Schools,” sec. 470, J. & A. ¶ 10143). There is a provision in that act that the parent or guardian shall select the high school to be attended, subject to the approval of the school directors of the home district. The only controverted issue of fact presented by the pleadings is whether the attendance of said pupils was with the approval of appellee, directors of the home district. There was a trial by the court without a jury, and a judgment of $100 for the plaintiff, which is supported only on the theory that the attendance of one of the pupils, Henry Rieke, had the approval of the directors of his home district, and that the attendancé of the other three pupils did not have such approval. The plaintiff appeals, claiming that it is entitled to a judgment for the full amount, $300, because there is no evidence that the directors of the home district disapproved, and no reason why they should disapprove, and on the authority of People v. School Directors of Dist. No. 8, 267 Ill. 172, and People v. School Directors of Dist. No. 89, 200 Ill. App. 250, they might have been compelled by mandamus to approve. No other authority on that point is cited, and we do not reach that conclusion. A definite issue was made by the pleadings whether the directors of the home district did approve. It could not be affirmatively answered by evidence that they did not approve, but ought to have done so and probably would, had they been requested. Appellant does not claim, that there is any evidence of any action of the board of directors of the home district in the matter of the attendance of the three pupils whose tuition was not allowed by the court. Its counsel say that when the pupils were admitted for the 2 years in question, appellant did not suppose that the Act of 1913, requiring approval of the school directors, was in force, but supposed it was repealed by the Act of 1915 [Callaghan’s 1916 St. Supp. ¶ 10143(1)], admitting pupils without such approval, but that the Act of 1915 was declared unconstitutional in Board of Education v. Haworth, 274 Ill. 538; therefore the Act of 1913 was the governing statute during all the time in question. This furnishes a reason for no attempt to comply with the provisions of that act, but does not afford ground for a judgment based on its provisions in a case where there was no attempt to comply with them. We. conclude that the court did not err in rejecting that claim. Board of Education of Dist. No. 7 v. School Directors of Dist. No. 66, 201 Ill. App. 429

Appellee has assigned cross errors and urges that there is no evidence to support a finding that the directors of the home district approved the selection of appellant’s school for Henry Bieke, and therefore no basis for the judgment of $100. There is no conflict of evidence on this question. Henry Bieke’s father testified for the plaintiff that in 1913 he applied to two of the directors of his home district separately, and that they separately signed a written approval of his selection of appellant district, and that his son attended the appellant high school for 4 years thereafter. This is the only evidence of approval of the school directors of the home district on which the judgment of $100 is based. This condition suggests two questions, one whether approval of the directors of the home district in 1913 would be effective and applicable 2 and 3 years later. The writing was admitted in evidence and was entitled; “Non-resident Application for Admission to Barrington Public School.” The two home directors certified that Henry Bieke was a resident of their district “and is entitled to attend high school under the law effective July 1, 1913.” It is not dated, but is proven to have been signed in the summer or fall of 1913; therefore 2 full school years elapsed before the beginning of the period for which recovery is here sought. But it is unnecessary to discuss this question if, as a matter of law, the individual consent .of the two school directors of the home district, not acting at a meeting of the board, is of no force or effect. It is not claimed that any approval of the directors, as a board, is otherwise proven. In our School Act [Hurd’s Rev. St. subtitle “School Directors,” sec. 111 (J. & A. ¶ 10132)], after providing that school directors shall hold meetings, it is expressly provided that: “No official business shall be transacted by the directors except at a regular or special meeting.” If in the absence of that provision there might be a question whether school directors could perform official acts except at a meeting where all have an opportunity to be present, it would seem that the legislature intended to answer it. The question was before this court in Armstrong v. School Directors of Dist. No. 128,160 Ill. App. 430. In that ease two of the three directors, while together, had employed the plaintiff as a teacher, and he sued the district on that contract, which the trial court held did not bind the district, and this court affirmed the judgment of the trial court because it held that under said section 111 of the School Law (J. & A. ¶ 10132) no official business could be transacted by the directors except at a regular or special meeting; that a conversation with two directors at a casual meeting was of no avail. It appeared that the third director was temporarily out of the State at that time, but the court said that did not dispense with the requirement that a meeting should be called. School Directors v. Jennings, 10 Ill. App. 643, was cited in support of that holding. That was an opinion by Justice Bailey sitting in the First District. He quotes the provision above referred to as to the transaction of business by school directors, and says it is found in the Laws of 1879 and not in previous revisions of the School Law, and must be regarded as placing further limitations upon the powers of school directors to perform official acts. It is further said that the mere fact that two of the directors were together did not constitute an official meeting of the board; that because no meeting of the board was called, whatever was said or done by the directors present was unofficial, and not binding upon the board. In L. R. A. 1915 F. 1047, there is a note with citations of many authorities in support of the proposition that when several persons are authorized to perform a public service, or to do an act of a public nature, as an organized body which requires deliberation, they should be convened in a body that they may have the counsel and advice of every member. The note is interesting, discussing many questions of when and under what circumstances such public officers miay be considered as acting at a meeting, but there seems to be no doubt that such individual acting as we are here considering of two school directors is void, and of no binding force or effect. We conclude that the evidence fails to show the approval of the directors of the home district; that the issue on that question, presented by a plea and replication in the case, should have been found for the defendant.

In Board of Education of Dist. No. 7 v. School Directors of Dist. No. 66, supra, the court considered the same question that arises here in appellant’s assignment of error. There had been no effort to get the approval of the directors of the home district in that case, and it was held that under the Act of 1913 the home district was not liable. The judgment must be reversed, and, because there is no presumption that the facts will appear other or different on another trial, the canse is not remanded. There should in no event have been a judgment for costs (Board of Education of Dist. No. 7 v. School Directors of Dist. No. 66, supra), and none will he entered for costs in this court.

.Reversed with finding of facts.

Finding of facts. We find that there was no approval of the School Directors of District No. 90, County of Lake and State of Illinois, of the selection of appellant’s high school for the attendance of any or either of the four pupils for whom tuition is charged in this action.