author: Mr. Presiding Justice Niehaus

text:
    Matilda C. Hudson, Appellee, v. William H. Hudson, Administrator, et al., Appellants.
    Gen. No. 6,764.
    1. Assumpsit, § 67

      —when services are presumed gratuitous. The general rule is that where persons live together as members of one family, the law does not imply a contract on the part of one of them to pay for nursing and care, but such services are presumed to have been gratuitous.
    2. Assumpsit, § 67*—when compensation for services may be recovered. Compensation for services rendered by one member of a family to another may be recovered if a reasonable inference arises from the evidence that an understanding existed between them by which the claimant was to receive pay for the services.
    3. Assumpsit, § 67*—how contract for services may be established. A contract on the part of one member of a family to pay for services rendered by another member may be established by facts and circumstances in evidence which show that when the services were rendered, both expected them to be paid for by the recipient.
    4. Executors and administrators, § 270*—when evidence establishes claim for services. On a claim against the estate of a deceased person for nursing and care given deceased, evidence showing repeated expressions by deceased of his appreciation of the value of the nursing, care and attention which claimant, a member ef the same family, had given him and that he expected to pay claimant for such services, some of such expressions being made in the latter’s hearing and under circumstances indicating that deceased had an understanding with the latter about the matter of payment, warrants the jury in inferring that claimant would fulfil his promise and pay her for her services.
    5. Husband and wife, § 127

      —When wife may recover for services rendered in family. On a claim against the estate of a deceased person for nursing, care and attention rendered by claimant for deceased while living as a member of claimant’s family, claimant, though a married woman, is entitled to recover for such services in her own right as her separate earnings, even though the services were rendered in connection with household duties performed by her to assist her husband, where the services were distinctive and not a part of her household duties, though performed with her husband’s assent.
    6. Bxeoutobs and administrators, § 236*—how time for filing claims is computed. Semble,, that where, after the issuance of letters testamentary to one as executor and after he had published a notice fixing the day for adjusting claims against the estate, letters of administration de bonis non were issued to him as administrator, pursuant to an adjudication that the decedent died intestate, and the administrator' fixed another adjustment day, in ascertaining "whether a claim against the estate is barred,- the time to be deducted should be from the day of the death of intestate to tbe adjustment day fixed by the administrator, not- to the day fixed by the executor.
    7. Appeal and error, § 490*—when objection as to amount of recovery cannot be raised on appeal. On appeal from a judgment entered on a verdict after denial of a motion for a new trial, appellant cannot raise any question as to the amount of the verdict where he did not, in his motion for a new trial, assign as a reason therefor that the verdict was excessive, as he thereby waived any right to question the amount.
    8. Bxeoutobs and administbators, § 233*—lohen claim against estate is not barred. A claim against an administrator de bonis non for services rendered the intestate is not barred as to property of the estate not inventoried or accounted for by the executor in the first administration, even though not presented within one year from the date of the letters testamentary issued under the first administration.

      Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 21, 1920.
    Rehearing denied June 25, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    L. P. Day, for appellants; C. A. Reinwald, of counsel.
    Dyer & Dyer and C. Gr. Hirschi, 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 Niehaus

delivered the opinion of the court.

In this case the appellee, Matilda C. Hudson, filed a claim in the county court of Iroquois county against the estate of John Hudson, deceased, who died April 17, 1914. _ The claim is for' services rendered to the deceased, including personal care and attention, nursing and bathing, and keeping the person of the deceased clean; washing his clothes and bedding, mending, and keeping his clothes in good order; also preparing his meals for a period of 5 years prior to his death. It appears from the evidence that the deceased was the father of William H. Hudson, the claimant’s husband, and that he lived to be over 99 years of age. About 5 years prior to his death, he moved to the home of the claimant and her husband in Watseka, and resided there the remainder of his life. During the time that he lived at this home he was practically under the personal care of the claimant, and required such care almost continually. He was physically enfeebled, and became more and more so towards the latter end of his days. He was suffering from a number of ailments; had diarrheal trouble, which caused involuntary movements of the bowels. He was also troubled with involuntary emissions of urine, and had gangrene in one of his feet, which required constant dressing. The bowel trouble was especially annoying because his own garments and the bed clothes would frequently become soiled, and would get into an offensive condition which required frequent washing and cleaning and changes. The gangrenous condition of the foot emitted offensive odors and also required frequent attention and dressing. The evidence tends to show that the nursing and care which the claimant was required to bestow upon the deceased during the 5 years preceding his death were reasonably worth $20 per week. A trial jury was had in the county court which resulted in a verdict in favor of the claimant for $6,700. The case was then appealed to the circuit court, where on another trial a verdict was rendered for $6,500. The appellants thereupon made a motion for a new trial which was overruled, and the court rendered judgment on the verdict,, and from this judgment an appeal is now prosecuted.

Several reasons are urged for reversal of the judgment. It is contended that the claimant has no right to recover because all the parties lived together as members of one family, and that" where such a relation exists, the law does not imply a contract on the part of one to pay for the services of another, and there is a presumption arising from such relation that the services rendered are gratuitous, and that no express contract is shown by the evidence. While it is true that the general rule is as contended for by the appellants, it is equally well settled that compensation for such services may be recovered if a reasonable inference arises from the evidence that an understanding existed between the parties by which the claimant was to receive pay for her services. Faloon v. McIntyre, 118 Ill. 292; Collar v. Patterson, 137 Ill. 403; Finch v. Green, 225 Ill. 304; Smith v. Birdsall, 106 Ill. App. 264. A contract may be established by facts and circumstances in evidence which show that when the services were rendered, both parties expected them to be paid for, the one expecting to receive payment and the other to make payment for such services. Heffron v. Brown, 155 Ill. 332; Switzer v. Kee, 146 Ill. 577; Miller v. Miller, 16 Ill. 296. In this case the evidence clearly shows repeated expressions by the deceased which indicated his appreciation of the value of the services which the claimant rendered for him, and that he expected to pay her for them. Some of these expressions were made within the hearing of the claimant, and under circumstances that indicated that the deceased had an understanding with the claimant about the matter of payment. The intention of the deceased to pay her, having been brought to her attention, it is a reasonable inference from the evidence that the claimant expected that the deceased would carry out his intention and promise tó pay her, and that she therefore understood and expected such payment to be made, and the jury were warranted in drawing this inference from the evidence.

It is contended that the claimant’s services were rendered in the household of her husband, and therefore that the claimant has no independent right to recover. The evidence does show that the services were rendered in connection with household duties of the claimant which she performed to assist her husband, but it also shows that the services were not a part of such household duties, but distinctive services rendered for the deceased, with the assent of her husband, as nurse for the deceased, the payment for services as nurse to the deceased would be her separate earnings, which, under the statute, she would be entitled to recover for, in her own right.

It is also contended, by the appellants, that the 5-year period of limitation was not correctly applied in this case, and that the claimant was not entitled to recover for services rendered prior to February 20,1913. It appears from the evidence that there were two administrations in this estate^ The first one proceeded under the will of the deceased, which was admitted to probate on May ■ 16, 1914, and the letters testamentary which were issued in conjunction therewith to William H. Hudson and as executor he had fixed a claim day, giving due notice to that effect, for the July term of the county court in 1914. This administration did not settle the estate. Proceedings were had in the circuit court of Iroquois county to set aside the probate of the will, which finally resulted in an adjudication in April, 1918, that the deceased died intestate. Thereafter letters of administration de bonis non were taken out upon the estate, and William H. Hudson was appointed administrator. Under this administration of the estate an adjustment day for claims against the estate was also fixed and due notice published. The claim of the appellee was filed against the estate in the second administration of the estate. It is insisted, therefore, that in the application of the general rule with regard to the 5-year period of limitation, under which the claimant could only recover for 5 years next before presenting her claim, deducting the time that elapsed between the death of the intestate and the time fixed by the administrator for the adjustment of the estate, that the time to be deducted refers to the adjustment day fixed by the executor and not the one fixed by the administrator. While we do not agree with this contention of the appellants and are inclined to hold that the adjustment day referred to is the one in the administration of the estate at which the claim is presented, it is sufficient to say concerning this point that it concerns merely the amount which the claimant had a right to recover, and that appellants are not in position to raise any question concerning the amount of the verdict, because they did not, among the specified reasons set. up in their motion for a new trial, assign as a reason for a new trial that the amount recovered was too-large or excessive. Their right to raise any questions on appeal concerning the amount recovered was thereby waived. Yarber v. Chicago & A. Ry. Co., 235 Ill. 589. It is also insisted that appellee’s claim is barred because it was not presented within one year from the date of the letters testamentary issued under the first administration of the estate. Shephard v. Rhodes, 60 Ill. 301. . The limitation referred to does not bar the payment of appellee’s claim out .of any property of the estate of the deceased not inventoried or accounted for by the executor in the first administration of the estate. Paragraph 7, sec. 70, ch. 3, Hurd’s Rev. St. (J. & A. 119). And in the condition of the record, . this question concerns the payment of the claim in due course of administration, rather than the appellee’s right to recover a judgment.

We find no error in the rulings of the court in the admission or rejection of evidence. The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Heard

license: Public Domain

text:
    Adele Kanter, Administratrix, Appellee, v. St. Louis, Springfield & Peoria Railroad, Appellant.
    Gen. No. 6,747.
    1. Appeal and error, § 426

      —when error in sustaining demurrer cannot he urged on appeal. Where the action of the trial court in sustaining a demurrer to defendant’s plea is not assigned as error upon the record, such contention cannot be considered on appeal.
    2. Carriers, § 462*-—when doctrine of res ipsa loquitur applies to derailment. In an action against an electric interurban railway company to recover for the death of plaintiff’s intestate, the complaint alleging that while intestate was riding on defendant’s car as a passenger, in the exercise of due care, by reason of defendant’s negligence and 'recklessness in managing and operating the car and without warning to the intestate the car became derailed and wrecked and began to burn and by reason of the derail-meat intestate was caught in the wreckage and received injuries and burns resulting in his death, where the evidence showed that the car left the track at a point between stations at which the rail was 6 inches out of line, ran about 300 feet, partly on the ties and partly on the roadbed, breaking ties and also telegraph poles on each side of the track, breaking a 3-foot concrete bridge-abutment and finally landing on its side in a ravine below the track where it was burned by the fire from an overturned stove, causing the death of intestate who was pinned in the wreckage by trunks, it was held that the doctrine of res ipsa loquitur applied.
    3. Carriers, § 462

      —when prima facie case of negligence is established on derailment. In an action against an electric interurban railway company to recover for the death of plaintiff’s intestate, killed while' a passenger on defendant’s car, proof that the car left the track at a point between stations at which one of the rails was 6 inches out of line, ran about 300 feet partly on the ties and partly on the side of the roadbed, splintering the ties, breaking a telegraph pole on each side of the track, breaking off a 3-foot concrete bridge-abutment and finally landing on its side in a rayine below the track, where it was burned by fire from an overturned stove, causing the death of intestate who was pinned in the wreckage by trunks, establishes a prima facie case of negligence sufficient to justify a verdict against defendant, and places on the defendant the burden of overcoming the presumption by evidence.
    4. Carriers, § 346*—when carrier is liable for negligence causing injury. A carrier of passengers is liable for the death of a passenger in a derailment proximately caused by its negligence in the management, control and operation of its car combined with the intervening acts of unknown persons in tampering with the track.
    5. Carriers, § 278*—what duty carrier owes passenger. A carrier owes a passenger the duty of exercising the highest degree of care consistent with the practical operation of its road and the mode of conveyance adopted.
    6. Carriers, § 348*—when contributing negligence on derailment, is question for jury. In an action against an electric interurban railway company to recover for the death of plaintiff’s intestate, killed by the derailment and burning of defendant’s car in which he was riding, whether evidence introduced by defendant to show that the derailment was caused by the vandalism of unknown persons is sufficient to relieve defendant from the charge of negligence contributing to bring about the accident, held for the jury.

      7. Cabbiebs, § 377

      —when care in operation on derailment is question for jury. In an action against an interurban electric railway company to recover for the death of plaintiff’s intestate, killed as the result of a derailment of the car on which he was a passenger, caused by a rail being 6 inches out of alignment, it is for the jury to say whether or not a car equipped as this was with an electric headlight throwing a reflection 900 or 1,000 feet and having automatic brakes and so operated that the motorman did not see the rail until 25 feet from it, was operated with the highest degree of care consistent with the practical operation of the read and the mode of conveyance adopted.
    8. Cabbiebs, § 476*—when evidence establishes negligence resulting in derailment. In an action against an electric interurban railway company to recover for the death of plaintiff’s intestate, killed by the derailment and burning of the car on which he was riding as a passenger, evidence examined and held sufficient to justify a finding that defendant was negligent in the control and operation of the car, and that such negligence combined with the intervening acts of parties unknown constituted the proximate cause of the accident and of the resulting death of the intestate.
    Appeal from the Circuit Court of Peoria county; the Hon. Charles V. Miles, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 21, 1920.
    Rehearing denied June 25, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Hunter, Page & Kavanaugh and Burton & Hamilton, for appellant.
    Weil & Bartley, for appellee; M. E. Newell, 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.

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

   Mr. Justice Heard

delivered the opinion of the court.

This was an action of trespass on the case brought by Adele Kanter, as administratrix of the estate of Samuel C. Kanter, deceased, against the St. Louis, Springfield and Peoria Railroad, an electrically operated interurban railroad extending through Madison and other counties in Illinois. The suit was brought to recover damages for the death of Samuel C. Kanter, which occurred on October 26, 1916, following the derailment of a car of defendant a short distance north of Edwardsville about 10 o ’clock in the evening.

The declaration consisted of four counts. The first count averred that Samuel C. Kanter was a passenger on October 26, 1916, on the electric motor car of the defendant railroad extending through Springfield and beyond Staunton; that while riding upon the car, in the exercise of due care and caution, south of Staunton and near Edwardsville, by reason of the carelessness, negligence and recklessness of the defendant and without warning to the said Kanter, the car became derailed and wrecked and began to burn and by reason of said derailment the said Kanter became caught in said wreckage and was so injured and burned that he died.

The second count alleged that Kanter was a passenger on the car of the defendant and while riding, in the exercise of due care and caution, south of Staunton near Edwardsville, the defendant, by its servants, so carelessly, negligently and recklessly drove, operated and managed said car that it became derailed and wrecked, etc.

The third count was withdrawn by the plaintiff before trial.

The fourth count alleged' that he became a passenger on defendant’s car and that the defendant, a short distance south of Staunton and near Edwardsville, negligently and carelessly allowed and permitted the railroad and ties, rails, spikes and roadbed, composing said railroad, to be and become in an unsafe and dangerous condition so that the motor car was liable to become derailed and wrecked; that while Kanter was riding as a passenger for reward, in the exercise of due care and caution, said motor car because of the carelessness, negligence and mismanagement of said defendant became and was derailed and wrecked and that the said Kanter was so injured and burned that he died.

It was averred that he left surviving him his widow and Edward, Kobert and Jack Kanter, his children and next of kin.

To the foregoing declaration the defendant pleaded the general issue. It also filed a special plea setting out the Workmen’s Compensation Law of New York, and that the deceased, Samuel C. Kanter, was a traveling salesman employed by a New York Company and that he was within the terms of the act, which provided that where the employee entitled to compensation be injured or killed by reason of the negligence or wrong of an employee not in the same employ, such injured employee, or in case of his death, his next of kin, may elect whether to take compensation under the act or to pursue the remedy against such other. The plea averred that plaintiff had not at any time, prior to the commencement of the suit, elected either to take compensation under said statute or to pursue her alleged remedy against this defendant for the alleged negligence complained of in the declaration. A demurrer to this plea was sustained and the defendant elected to stand by its plea.

The trial resulted in a judgment for $10,000 in favor of appellee.

Appellant contends in its brief and argument that is was error to sustain the demurrer to this plea. The action of the court in that regard is not assigned as error upon the record and therefore this contention cannot be considered by us.

The only other assignment of error argued by appellant in its brief and argument is “that the verdict and judgment are contrary to the overwhelming preponderance of the evidence.”

We do not think there was any evidence tending to prove the fourth count of the declaration and the judgment must have been based upon the first and second counts, which are the counts where the charges of negligence were general, and the only question here is whether or not the evidence in the case is sufficient • to sustain a judgment on these counts.

- The evidence shows that deceased became a passenger on defendant’s car at Springfield, Illinois,, having purchased a ticket for St. Louis, Missouri. The train consisted of a single car in charge of a motorman and conductor.

The car left the track between Staunton and Edwardsville at a point where one of the rails was a half foot out of line; ran a distance of about 300 feet, part of the time upon the ties and part of the time on the side of the roadbed, tearing up and splintering ties, breaking two telegraph poles, one on the east and one on the west side of the track, striking and breaking off the 3-foot concrete abutment of a bridge and finally landing on its side in a ravine several feet below the level of the track, where it was burned by fire from an overturned stove.

Deceased at the time of the accident was riding in the front part of the car in the smoking compartment, which was separated by a partition from the main passenger compartment. He was in the exercise of ordinary care for his own safety. There were some trunks in the smoking compartment,

When the car was overturned deceased was pinned down by the trunks and before he could be extricated was burned to death.

Upon proof of these circumstances the question arises whether the doctrine of res ipsa loquitur applies.

In Feldman v. Chicago Rys. Co., 289 Ill., on page 34 [19 N. C. C. A. 292], it is said: “The doctrine of res ipsa loquitur may be stated thus: When a thing which has caused an injury is shown to be under the management of the party charged with negligence and the accident is such as in the ordinary course of things will not happen if those who have such management use proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the parties charged, that it arose from the want of proper care. (Chicago Union Traction Co. v. Giese, 229 Ill. 260.) In the case just cited the first and second counts of the declaration charged that the defendant, by its servants, carelessly, improperly- and negligently drove and managed a train consisting of two coaches so that the rear car struck the wagon of the plaintiff in which he was riding and thereby he received the injury complained of. In those two counts the charges of negligence were held to be general and it was held that the doctrine of res ipsa loquitur applied. The same rule is laid down in O’Callaghan v. Dellwood Park Co., 242 Ill. 336. The charges of negligence in the first-two counts in the case at bar are in substantially the same language as those in Chicago Union Traction Co. v. Giese, supra. It is charged by the first count that plaintiff, without fault or negligence on his part, was struck by and run into and over by defendants, who then and there so carelessly, negligently and improperly managed and operated said car that by reason thereof the car left the track and struck and collided with the plaintiff. The second count charges that the defendants so carelessly, negligently and improperly managed and operated the electric car that by reason thereof the car then and there collided, struck and ra.n against the plaintiff. The charges of negligence in these counts were general and the doctrine of res ipsa loquitur■ applies. The rule is that negligence is never presumed, but that the circumstances surrounding the case where the maxim of res ipsa loquitur applies amount to evidence from which the facts of negligence may be found; that is, in a case within the maxim of res ipsa loquitur, proof of the circumstances of such case and of the injury constitutes a prima facie case of negligence, and will justify a verdict unless such prima facie case is overcome by proof showing that the party charged is not at fault. (Chicago Union Traction Co. v. Giese, supra; Chicago Union Traction Co. v. Newmiller, 215 Ill. 383; Chicago City Ry. Co. v. Rood, 163 Ill. 477; New York, C. & St. L. R. Co. v. Blumenthal, 160 Ill. 40; Hart v. Washington Park Club, 157 Ill. 9.) The burden rested upon defendants in error to overcome the presumption of negligence arising from the circumstances in this case.”

In this case the charges of negligence in the first and second counts of the declaration were general. The cars, tracks and equipment were under the control and management of appellant and the accident was such as in the ordinary course of things would not happen if those who had such control and management used proper care, and hence under the evidence heretofore mentioned the doctrine of res ipsa loquitur applies.

Applying this doctrine to such evidence, a prima facie case of negligence sufficient to justify a verdict was made against appellant and the burden rested upon it to overcome this presumption by evidence. Appellant attempted to overcome this presumption and prove that the derailment and death of deceased was the result of acts of vandalism committed by persons unknown.

The evidence clearly shows that" at a point immediately north of the place of derailment, a curve, described by plaintiff’s witness Shaffer as a 35-minute curve and by defendant’s witness Martin as a 1-de-gree curve, began, which extended about. 300 feet down a slight grade to a bridge over a small creek or bottom. Plaintiff’s witness Shaffer, who surveyed the premises, describes the grade as a 7/10 of 1 per cent grade. Beginning at this curve, which at the northerly end was about 300 feet from the bridge, spikes were found, immediately after the accident, removed from the ties and rails for a distance of approximately 80 feet. In the first 40 feet the spikes were pulled by persons unknown from each side of the rail and in the 40 feet nearest to the bridge, the outside spike was pulled from the north rail from all of the ties. In all 45 spikes were found, which had been drawn, leaving straight, clean, vertical holes. The point where the car went off from the rails was about 40 feet from the be - ginning of the curve. North of the place where the marks of the car were first discerned on the track, at one place one spike had been driven under the rail from the inside, and a few ties further on from that place, two other spikes had been placed under the rail, one on top of the other, crosswise in position, and these had also been driven from the inside, that is, their heads were inside of the rail and the points forced under the rail. This caused that rail to be 6 inches out of alignment with the other rails, and a few feet from there was the place where the car left the track and went onto the right of way.

Proof of these facts was sufficient to overcome the prima facie case and require a verdict for appellant unless there was other evidence in the case showing negligence on the part of appellant in the control, management or operation of the car in question which, combined with the acts of vandalism of the persons unknown, constituted the proximate cause of the accident.

In Seith v. Commonwealth Electric Co., 241 Ill., on page 259, it is said: “The rules for determining whether a negligent act or omission is the proximate cause of an injury are well established and have been applied by different courts in numerous cases to different conditions of fact. There has been practically no difference of opinion as to what the rules are, and they may be briefly stated as follows: The negligent act or omission must be the cause which produces the injury, but it need not be the sole cause nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which, in combination with it, causes the injury, or if it sets in motion a chain of circumstances and operates on them in a continuous sequence, unbroken by any new or independent cause. The question is not determined by the existence or nonexistence of intervening events, but by their character and the natural connection between the original act or omission and the injurious consequences. To constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, but whén it occurs it must appear that it' was a natural and probable consequence of his negligence. ’ ’

In Waschow v. Kelly Coal Co., 245 Ill., on page 519, it is said: “When an injury proceeds from two causes operating together, the party putting in motion one of them , is liable the same as though it was the sole cause. (Bishop on Non-Contract Law, secs. 39, 450.) The negligent act or omission must be one of the essential causes producing the injury but need not be the sole cause nor the last or nearest cause. ‘It is sufficient if it concurs with the other cause acting at the same time, which in combination with it causes the injury.’ (Seith v. Commonwealth Electric Co., 241 Ill. 252, and cases cited; American Exp. Co. v. Risley, 179 Ill. 295; Miller v. Kelly Coal Co., 239 Ill. 626; Bishop on Non-Contract Law, sec. 455.) Furthermore, what is the proximate cause is ordinarily a question of fact, to be considered by the jury from all the attending circumstances. (Illinois Cent. R. Co. v. Siler, 229 Ill. 390; Pullman Palace Car Co. v. Laack, 143 Ill. 242; Bishop on Non-Contract Law, sec. 455.) ”

In Fisher v. Chicago, R. I. & P. R. Co., 290 Ill. 58, it is said:. “Where an injury proceeds from two causes operating together, the party putting in motion one of them is liable the same as though it were the sole cause. The negligent act or omission must be one of the essential causes producing the injury, but need not be the sole cause nor the last or nearest cause. ’ ’

In Sullivan v. William Ohlhaver Co., 291 Ill. 361, it is said: “It is contended by plaintiff in error that the negligent act of Feece turning into the street without warning constituted a separate, independent and intervening cause of the accident, and that there is no evidence showing the act of plaintiff in error to be the proximate cause of the injury. The evidence was sufficient to establish the conclusion of the fact that the injury was the result of the combined negligence of plaintiff in error and Feece. * * * The mere fact that the injury would not have happened but for the negligence of Feece is not sufficient to exonerate plaintiff in error, for if defendant in error was injured by the combined negligence of both parties he can maintain an action against either.”

' Edward L. Grass, who was the motorman in charge of the car, testified that as he approached the place of derailment he observed that a rail on the right-hand side 25 feet in front of him was half a foot out of line; that the car was equipped with an electric headlight which when set high enough cast a reflection for 900 or 1,000 feet, but that he could not see the rail further than 30 feet in front of him; that the light could be regulated by setting it higher or lower to reflect a greater or shorter distance ahead; that he as motorman had control of the regulation of the carbon; that he had it carrying high so that he could see a great distance ahead; that turning it up gives you a chance to see further ahead and turning it down gives you a chance to see the track closer to you; that when he saw the rail out of alignment he applied the automatic air brakes to the full extent, but was unable to stop the car before it landed down at the bottom of the grade at the bridge; that at Grraney Siding, a little over half a mile before reaching the place of derailment, he pnt off the power and did not pnt it on again. Witness was not interrogated and did not testify as to what he was doing, if anything, from the time he shut off the power at Gf-raney Siding until he saw the rail out of alignment. He was not interrogated and did not testify as to whether or not he was watching the track ahead.

A. Gr. Wilcoxon, who at the time of the accident was chief dispatcher for appellant, in answer to the question, “How far ahead could you see rails with that headlight?” testified, “A headlight will throw a distance—that headlight will throw possibly a distance of 900 or 1,000 feet on the rails; the rails will shine; it would have a glaring effect.” Of course if the motorman had sooner seen the defect in the track he would have sooner applied the brakes and so checked ■the speed of the car somewhat if not entirely before the derailment.

In New York, C. & St. L. R. Co. v. Blumenthal, 160 Ill., on page- 49, the court says: “Whether or not the defendant offered such explanation of the accident as to relieve itself from the charge of negligence and whether or not the plaintiff exercised due care for its own safety were questions of fact for the jury, and were submitted to them by the court under proper instructions.”

Appellant owed to deceased the duty of exercising the highest degree of care consistent with the practical operation of the road and the mode of conveyance adopted. Whether or not the evidence showed such an explanation of the accident as to relieve appellant from the charge of negligence contributing to bring about the accident was a question of fact for the jury. It was also a question of fact for the jury whether or not a car equipped as this car was and so operated that a rail 6 inches out of alignment was not seen by the motorman until within 25 feet of it was operated with the highest degree of care consistent with the practical operation, of the road and the mode of conveyance adopted. The jury have evidently found against appellant on these questions.

Under "the evidence the jury were justified in finding that appellant was negligent in the management, control and operation of the car in question and that such negligence, combined with the intervening acts of per-ties unknown, constituted the proximate cause of the accident and resultant death of deceased.

The judgment is affirmed.

Affirmed.

Niehaus, J., took no part.


author: Mr. Justice Niehaus

text:
    United Romanian Meat Market and Grocery Store, Appellee, v. Louis Abramson, Appellant.
    Gen. No. 6,780.
    1. Appeal and error, § 270

      —what order is interlocutory and not appealable. An order overruling a demurrer to a bill for an injunction and anr accounting is an interlocutory order and not subject to review on an appeal from an order granting a temporary injunction.
    2. Good will, § 1*—what constitutes. The good will of a business is the benefit which arises from its having been carried on for some time in a particular place, or by a particular person, or from the use of a particular trade-mark.
    3. Good will, § 1*—what is value of good will. The value of the good will of a business consists in the probability that the customers of the old firm will continue to be customers of the new.
    4. Good will, § 2*—when transferable. The good will of a business! may be transferred from one person to another as an entity distinct from the business.

      5. Good will, § 1

      —what is nature of good will. The good will of a business ordinarily passes as an incident of the business when the business is sold and transferred.
    6. Sales, § 1*—how existence of sale is determined. Whether the agreement of two persons with reference to a sale constituted the sale and transfer of the business of one to the other is to be determined from and controlled by the language of the written bill of sale containing their agreement.
    7. Sales, § 61*—how intention of parties is determined. The law looks to what the parties express in a contract of sale as their real intention.
    8. Evidence, § 319*—when contract cannot be- varied by parol evidence. A contract which has been reduced to writing cannot be added to or varied by parol or extrinsic evidence.
    9. Good will, § 2*—when good will is not transferred by sale of business. A written bill of sale whereby the owner of a business transfers to another all the personal property used in the operation of the business, no language being used to indicate the transfer of any business or good will, will not be construed as transferring the business and good will.
    10. Contracts, § 216*—how contract with restriction against engaging in business-is construed. A covenant not to engage in a certain business in a specified territory for a stated period is in restraint of trade and must be strictly construed with reference to any right claimed thereunder.
    11. Injunction, § 183*—when verification is necessary. To entitle one to a temporary injunction, all the material facts alleged in his bill, including those alleged in an amendment to the bill, must be properly verified by affidavit.
    Appeal from the Circuit Court of Kane county; the Hon. C. F. Irwin, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed.
    Opinion filed May 7, 1920.
    Rehearing denied June 25, 1920.
    Thaddeus J. Merrill and Alschuleb, Putnam: & Flannigen, for appellant.
    Peppers & Wing, 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 XT, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Niehaus

delivered the opinion of the court.

The United Romanian Meat Market and Grocery Store, a corporation, as complainant, filed a bill in equity in the circuit court of Kane county against the appellant, Louis Abramson, as defendant, praying for an injunction to restrain him from engaging in the meat business within five blocks of its place of business, namely No. 70 North Broadway, in Aurora; also praying for an accounting. Afterwards the appellee obtained leave to file an amendment to the bill, and an amendment was filed. The appellant thereupon demurred to tie bill as amended, and the demurrer was overruled, and then upon the motion of the appellee the court ordered a temporary injunction to issue in accordance with the prayer of the bill. From the order for the temporary injunction as well as the order overruling the demurrer, the appellant prosecutes this appeal. The order overruling the demurrer being an interlocutory order, is not subject to review on this appeal. We shall therefore confine our consideration of the case to the question raised concerning the appellee’s right to a temporary injunction, which is based upon the facts which appear on the face of the bill. It appears from the bill that on February 10, 1919, and for some time prior thereto, the appellant Abramson conducted a retail meat business at No. 70 North Broadway in the City of Aurora, and on that day made a bill of sale to Louis Kish and Griogor Mateiu by.which he sold and transferred to the parties named, certain goods and chattels which are specified in a bill of sale, including meats, canned goods, counters, shelves, meat blocks, scales, knives and other implements used in the meat business, and a heating stove, all located at 70 North Broadway. The bill of sale also contained the following covenant: “And in consideration of the purchase of the above described goods and chattels, said Louis Abramson agrees not to engage himself in the meat business within five blocks of said store for a period of five years,” The purchasers took immediate possession of the goods and chattels sold and transferred to them, also took possession of the store in which the chattels and goods were located, and conducted a meat business at the same place for about a month thereafter. Thereupon ’ Bash, one of the parties to whom the sale had been made, sold out his interest to his partner Mateiu, who continued in the business until July 19. On July 19, Mateiu made a bill of sale to the appellee, which is as follows:

“Know All Men by These Presents, That the Undersigned G-riogor Mateiu of the City of Aurora in the County of Kane and State of Illinois, party of the first part, for and in consideration of the sum of Two Thousand Four Hundred and Ninety-two Dollars, lawful money of the United States of America, to be paid, by the United Romanian Meat Market & Grocery Store, a corporation, of the second part, has granted, bargained, sold and delivered, and by these Presents does grant, bargain, sell and deliver, unto the sáid party of the second part, all the following Goods, Chattels, and Property, to-wit:

“4 counters (3 of them with glass covers) with marble tops; 2 counter-scales; one ice-box; 5 meat blocks; one slicing machine; one sausage stuffer; one platform scale; one lard press; one smoke house; four meat hangers; one lard kettle; six tin boxes; one Mc-Kaskey register system; one looking glass; one bench; one clock; one awning; two gas lamps; one step ladder; 2 back benches; 2 cleavers; 2 small knives; 2 large knives; 2 wash tubs; one grind-stone; one heating stove; one chicken coop; all shelving; also all meats, canned goods, groceries and merchandise, fixtures and all personal property owned in and by me used in the operation of my meat-market and grocery store at No. 70 N. Broadway, Aurora, Illinois.

“The consideration, $2,492.00, above mentioned, to be paid as follows: The sum of Six Hundred Ninety-two Dollars has been hereto paid; the said United Romanian Meat Market and Grocery Store hereby assumes and agrees to pay Four Hundred Dollars to Loui Hudei, and Four Hundred Dollars to Mike Codrina, and the balance, namely, One Thousand Dollars, to be paid by note with approved sureties.

“To Have and to Hold the said Goods, Chattels and Property unto the said party of" the second part, its heirs, executors, administrators and assigns, to and for its own proper use and behoof, forever.

“And the said party of the first part does vouch himself to be the true and lawful owner of the said goods, chattels and property, and have in his full power, good right and lawful authority, to dispose of the said goods, chattels and property, in manner as aforesaid; and he do for himself, his heirs, executors and administrators, covenant and agree to and with the said party of the second part, to warrant and defend the said goods, chattels and property to the said party of the second part, its executors, administrators, and assigns, against the lawful claims and demands of all and every person and persons whomsoever.

“In Witness Whereof, I have hereunto set my hand and seal the........day of July in the year One Thou-

sand and Nine Hundred and Nineteen (1919).

Signed Griogor Mateiu. (seal) ”

The appellee, upon the delivery of the bill of sale, took possession of the goods, chattels and property therein described, and continued in the meat business at the same place; and was in the conduct of such business at the time of the filing of the bill of complaint. In August, 1919, the appellant, Abramson, again opened and established a meat market at No. 48 North Broadway, which is within five blocks of the appellee’s place of business. •

The main question presented for determination on this appeal is whether the appellee is entitled to the benefit of the covenant, in the bill of sale to Kish and Mateiu, by which the appellant bound himself not to engage in the meat business within five blocks of the store where he had been conducting his business. The covenant in question has reference to the good will of the meat business which appellant had established and was conducting at the store referred to. The good will of a business has been defined to be the benefit which arises from it having been carried on for some time in a particular place, or by a particular person or from the use of a particular trade-mark, and its value consists in the probability that the customers of the old firm will continue to be customers to the new. Potter & Co. v. Wait, 15 Ky. L. Rep. (Abst.) 60. And it has been treated as a distinct entity, as a subject of transfer from one person to another; but it is also held that if a business is sold and transferred from one person to'another, the good will is transferred with the business as an incident to such business. Public Opinion Pub. Co. v. Ransom, 34 S. D. 381, 148 N. W. 838; Gompers v. Rochester, 56 Pa. 194; Didlake v. Roden Grocery Co., 160 Ala. 484.

It is insisted by the appellee that by means of the bill of sale to Kish & Mateiu, the business conducted by the appellant at No. 70 North Broadway was sold and transferred to Kish and Mateiu; and that by means of the bill of sale from Mateiu to the appellee it succeeded to the same business and the good will, the good will being incidental to and a part of the business so transferred; and that the appellee is therefore entitled to the benefit of said covenant, which was made to protect the value of the good will. It becomes important, for a proper determination of the appellee’s right, to ascertain whether the business of appellant was actually sold and transferred to the appellee. Inasmuch as the parties reduced their undertaking to writing by making the bills of sale, this question can be determined only from the instrument itself, and the language used therein must control. 9 Cyc. 577; Walker v. Tucker, 70 Ill. 527. It is clear from the terms and wording of the Mateiu bill of sale- that it does not purport to sell or transfer anything but the goods and chattels therein specified and-described; and there is no language which indicates the transfer of any business or good will from the vendor to the vendee. While it may be true that the parties had such intention, the intention cannot be reasonably drawn from the language or the terms of the instrument. It is well settled that the law looks to what the párties expressed in a contract of sale as their real intention. 9 Cyc. 578; Nichols v. Mercer, 44 Ill. 250; Benjamin v. McConnell, 9 Ill. 536. And a contract which has been reduced to writing cannot be added to or varied by parol or extrinsic evidence. Memory v. Niepert, 131 Ill. 623; Longfellow v. Moore, 102 Ill. 289; Kimball v. Custer, 73 Ill. 389; Moulding v. Prussing, 70 Ill. 151; Emery v. Mohler, 69 Ill. 221; Merchants’ Ins. Co. v. Morrison, 62 Ill. 242. The appellee contends that inasmuch as the bill of sale from Mateiu to the appellee transferred to it all the personal property used in the operation of his meat market and grocery store, that it is a matter of reasonable inference that Mateiu intended thereby also to sell and transfer his business and the good will. We cannot agree to this contention. Even if it is reasonable to draw the inference that the appellee bought the goods and chattels to use them in the meat business, this inference could not be drawn to the extent of assuming that he was thereby entitled to the trade established at the place where they were located. There is nothing in the Mateiu bill of sale which would prevent Mateiu from again establishing himself in the meat business, perhaps next door to appellee, and seek to regain Ms trade or customers; nor is there anything to indicate that appellee had the right even to take possession or continue in possession of the place where Mateiu had conducted the business. An intention on the part of Mateiu to sell the business and good will to the appellee with the goods and chattels sold, if such was his intention, could under these circumstances be established only by parol evidence; and parol evidence would not be admissible for that purpose. The covenant in question being one in restraint of trade, must be construed strictly with reference to any right claimed thereunder. Tarr v. Stearman, 264 Ill. 110; Wiggins Ferry Co. v. Ohio & M. Ry. Co., 72 Ill. 360; M. M. Mitchell Co. v. Mitchell, 134 Ill. App. 214.

For the reasons stated, we are of the opinion that the appellee was not entitled to the injunction ordered.

There is an additional reason, however, why the order granting the injunction cannot be sustained. The record discloses that the amendment to the bill contains matters material to the legal sufficiency of the bill and was not verified. It is indispensable to appellee’s right to a temporary injunction that all the material facts alleged in its bill be properly verified by affidavit. Christian Hospital v. People, 223 Ill. 244.

The order granting the temporary injunction is reversed.

Order reversed.


author: Mr. Presiding Justice Dibell

text:
    Wilson Grocery Company, Plaintiff in Error, v. National Surety Company, Defendant in Error.
    Gen. No. 6,595.
    1. Appeal and ebbor, § 824

      —what need not he included in hill of exceptions. Since the amendment of section 81 of the Practice Act in force July 1, 1911 (J. & A. 1f 8618), it is not necessary that formal exceptions to rulings of the court be embodied in the bill of exceptions to preserve the rulings of the court for review.
    2. Appeal and ebbor, § 1078*—when cross errors are necessary. On a writ of error, defendant in error, who did not assign cross error, cannot complain that the trial court erred in referring the case under section 68 of the Practice Act (J. & A. f 8605).'

      3. Reference, § 9

      —when exceptions to report warrant jury trial. Where exceptions are filed by defendant to the referee’s report in a case referred under section 68 of the Practice Act (J. & A. If 8605), the trial court properly grants a jury trial as to each item found against, even though the exceptions are vague and general and merely state that each item is incorrect.
    4. Reference, § 9*—what objections to evidence are proper. 'On a trial before the jury as to items excepted to in the referee’s report in a case referred under section 68 of the Practice Act (J. & A. 1f 8605), in which neither the motion nor the order directed the referee to report the evidence, an objection to the introduction of the referee’s report of the evidence heard before him is properly sustained.
    5. Reference, § 9*—how jury trial is conducted. The provision in section 68 of the Practice Act (J. & A. If 8605) that exceptions before the jury shall be tried “as other cases” means “as in other cases at law.”
    6. Reference, § 9*—what parties must show in trial before jury. On the trial of exceptions to a referee’s report in a case referred under section 68 of the Practice Act (J. & A. jf 8605), the parties must produce their witnesses and documentary evidence before the jury, if they desire such proof to be presented, except where depositions have been taken pursuant to the statute on that subject.
    7. Appeal and error, § 878*—when abstract of evidence' is required. On a writ of error to review a ruling sustaining an objection to the referee’s report of the evidence on the trial before the jury of the exceptions to the referee’s report in a case referred under section 68 of the Practice Act (J. & A. jf 8605), the court is not required to pass- upon the competency of such evidence where it is not abstracted.
    8. Trial, § 68*—when offer of evidence is improper. Objection to plaintiff’s offer of his own evidence while cross-examining defendant’s witness is properly sustained.
    9. Appeal and error, § 1498*—when exclusion of evidence is harmless. Any error in excluding evidence to show that a certain entry did not appear on a certain page in plaintiff’s cashbook, offered in evidence by plaintiff while cross-examining defendant’s witness, is harmless where such fact was admitted by the witness at another point in his cross-examination.
    10. Assumpsit, § 92*—when instruction is properly refused. An instruction asked by plaintiff in an action of assumpsit that defendant’s failure to produce a certain paper pursuant to plaintiff’s demand, defendant’s counsel stating that they did not have it, operated unfavorably to defendant, is properly refused where the evidence makes it probable that such paper was in the possession of a third person.
    11. Reference, § 9

      —what instructions to jury are properly refused. On the trial before the jury of the defendant’s exceptions to the referee’s report in a case referred under section 68 of the Practice Act (J. & A. 1f 8605), an instruction which places upon defendant the burden of overcoming the report by the greater weight of the evidence is properly refused.
    12. Reference, § 9*—when verdict for defendant is proper. On the trial before the jury of defendant’s exceptions to the referee’s report in a case referred under section 68 of the Practice Act (X & A. If 8605), if, after treating the report as prima facie proof of the facts therein found and reported, the jury find the evidence is evenly balanced upon plaintiff’s allegations, the verdict should be for the defendant.
    13. Indemnity, § 24*—when instruction as to evidence is properly refused. In an action of assumpsit on an indemnity bond securing plaintiff against loss by reason of the dishonesty, larceny, embezzlement by its cashier, an instruction that if funds were collected through the cashier’s department which were not accounted for to plaintiff, the legal presumption was that such cashier dishonestly appropriated the funds, is properly refused where the evidence shows that the cashier was frequently absent from his department and that at least seven other persons worked there at different times when he was absent.
    14. Indemnity, § 24*—what proof by defendant is required. In an action on a bond securing plaintiff from loss by the dishonesty, etc., of its cashier, defendant is not required to overcome plaintiff’s proof by the greater weight of the evidence.
    15. Instructions, § 67*—when assumption of facts is error. An instruction assuming as a'fact a matter concerning which the evidence is conflicting, is properly refused.
    16. Evidence, § 51*—what evidence is necessary to establish crime. When a crime is charged in a civil action, it must be proved beyond a reasonable doubt, except where the person accused is not a party to the suit, but is a stranger to the record.
    17. Indemnity, § 24*-—what evidence is required where crime is involved. In an action on an indemnity bond securing plaintiff against loss by the dishonesty, etc., of its cashier, the declaration in which practically charges the cashier with the crime of embezzlement, plaintiff is not required to prove by “a clear preponderance of the evidence” that the cashier, who, though originally a defendant, was dismissed from the suit before the amended declaration was filed, was guilty of embezzlement.

      18. Indemnity, § 24

      —when instruction as to preponderance of evidence is proper. Semble, that in an action on an indemnity bond securing plaintiff against loss by the dishonesty, etc., of its cashier, the declaration in which practically charges the cashier, who is not a party, with the crime of embezzlement, an instruction requiring plaintiff to prove its case by a preponderance of the evidence is proper.
    19. Reference, § 9*—what instruction as to evidence is erroneous. On a jury trial of the exceptions filed to the referee’s report in an action on an indemnity bond securing plaintiff against loss by the dishonesty of its cashier, an instruction that “plaintiff must prove by positive affirmative evidence that the defendant is liable to the plaintiff,” is erroneous.
    Error to the Circuit Court of Peoria county; the Hon. Clttde E. Stone, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed June 29, 1920.
    Stevens, Miller & Elliott, for plaintiff in error.
    Scholes & Pratt, for defendant in error.

      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, and Cumulative Quarterly, same topic and section number.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This is an action of assumpsit brought by the Wilson Grocery Company, hereinafter called plaintiff, against the National Surety Company, hereinafter called defendant, upon a contract of indemnity executed by defendant, to secure plaintiff against any act of personal dishonesty, forgery, theft, larceny, embezzlement, wrongful conversion or abstraction, by plaintiff’s cashier, William B. Bootz, after July 1, 1915, and before the termination of the contract. Plaintiff filed a declaration which charged Bootz with personal dishonesty, embezzlement, etc., while the contract was in force. Bootz was originally made a defendant, but plaintiff afterwards dismissed the suit as to him, and filed an amended declaration. Defendant filed the general issue and eight special pleas. Plaintiff replied to the special pleas. A statement of the defenses set up in the special pleas is unnecessary at the present time. The canse was sent to a referee under section 68 of the Practice Act (J. & A. ft 8605), the first sentence of which is as follows:

“All actions in which matters of account are in controversy, may, by the order of the court, be referred to some competent person or persons as a referee or referees to state and report an account between the parties, and the amount that may be due from either party to the other, which report, when confirmed by the court, shall be final and conclusive between the parties and judgment entered thereon and execution issued in the manner provided by law in cases of arbitration and award, but either party‘may, within ten days after notice of the filing of the report, file exceptions thereto and demand a trial, in which case the action shall be tried as other cases, and upon such trial the report of the referee or referees shall be prima facie evidence of all the facts therein found and reported; and no other exceptions shall be considered on the trial than those filed as above provided.”

The referee filed a detailed report, finding for plaintiff in various sums amounting to a total of $2,004.70, and with his report he filed a copy of the evidence he had heard upon the reference. Plaintiff moved for judgment on the award. Defendant moved to strike the report from the files. Defendant also filed exceptions to the report and demanded a jury trial. The court denied the motions and granted a jury trial. The jury found for defendant. Plaintiff moved for a* new trial and that motion was denied. Defendant had judgment. Plaintiff sued out a writ of error from this court to review said proceedings. We aErmed the judgment and afterwards granted a rehearing.

Defendant contends that most of the questions argued by plaintiff are not preserved for review because exceptions to the ruling of the court are not embodied in the bill of exceptions. Such exceptions are not required since amended section 81 of the Practice Act went into force on July 1, 1911 (J. & A. 8618). Miller v. Anderson, 269 Ill. 608, and later eases.

It is argued by defendant that this was not a proper ' case for a reference under section 68 of the Practice Act. Defendant has not assigned cross error. Hence it cannot complain of the reference. This question is not raised by the record.

Plaintiff moved to strike defendant’s exceptions from the files on the ground that they were too vague and general. Each of the first fourteen exceptions sets out that particular portion of the report by which the referee reached one particular item of the account, and excepts thereto. The defendant does not therein expressly state why he excepts to that part of the report, but we understand defendant to mean thereby that defendant claims that the' proof did not warrant that conclusion. The fifteenth exception states the amount of each item which the referee allowed against defendant, and a name to identify the item, and states as the ground of exception that said items are.each incorrect. The statute does not authorize the court to hear and pass upon these exceptions, but as to the items excepted to the court must submit them to a jury. No doubt in ordinary cases under this statute, there will be many items not excepted to and which therefore will stand as allowed, and in that way the inquiry may be limited to a few items. Whether it was wise for plaintiff to ask this reference is not for us to decide. We are of opinion the court properly granted a jury trial as-to each item which the report found against defendant.

On the trial before the jury plaintiff offered the referee’s report of the evidence heard before him. The court sustained an objection to the offer. The statute above quoted does not provide that the referee shall report the evidence to the court. The motion by plaintiff for a reference did not ask that the referee be directed to report the evidence which he might take. The order of the reference did not direct the referee to report the evidence. The statute does not provide that at the jury trial therein authorized the evidence taken by the referee shall be admissible before the jury. All it does provide is that the report of the referee shall be prima facie evidence of all the facts therein found and reported. If the legislature had intended that the evidence taken before the referee should also be competent as evidence at the later jury trial, we think it would have been so stated in- the Act. As it was not so stated we conclude it was not so intended. We approve the conclusion on this subject reached by the Appellate Court for the Third District in Hawkyard v. Suttle, 188 Ill. App. 168. It is provided in said statute that the trial before the jury shall be “as other cases,” which means “as in other cases at law.” We are of opinion that the parties were required to produce their witnesses and documentary evidence before the jury, if they desired the jury to hear that proof, except where depositions had been taken pursuant to the statute on that subject. Moreover, the evidence taken before the referee and so offered by plaintiff is not abstracted, and therefore we are not required tó -determine its competency. After the court rejected said offer by plaintiff, it permitted plaintiff to introduce further proof. If plaintiff did not wish to rest on the referee’s report, it was given leave to call such witnesses and offer such books and documents as it desired. Plaintiff availed itself of this opportunity to a very slight extent. We find no error in the rulings on this subject. When plaintiff’s counsel was cross-examining Bootz, plaintiff offered page 12 of its cashbook to show that a certain check of Jobst-Bethard Company for $647.09 did not appear on that page under date of August 12, 1914. The court sustained an objection to that offer. Plaintiff had no right to introduce its own evidence while cross-examining defendant’s witness, and the objection was properly sustained. Besides, Bootz admitted during said cross-examination that said page was in his handwriting and that said check did not appear on that page, so it was not important to plaintiff to have said page in evidence to establish the admitted fact.

The instructions are not numbered, and those of which complaint is made are too lengthy to warrant insertion in this opinion. We therefore must refer to them in a very general way. Before this suit was brought there was a meeting at which Bootz and representatives of plaintiff and of defendant were present, and figures concerning the financial matters relating to Bootz were set down on a piece of paper and that paper was carried away, either by Bootz or by the representative of defendant. At the trial plaintiff’s counsel demanded the paper and defendant’s counsel stated that they did not have it. The court refused an instruction requested by plaintiff that this operated unfavorably to defendant. The instruction was so framed as to make the court tell the jury as a fact that the paper was delivered to defendant. This the court had no right to do. The evidence makes it probable that Bootz carried away the paper. He Was not a party at the time of the trial. Defendant could not be compelled to produce a paper which Bootz had. Bootz should have been served with a subpoena to produce the paper. If he did not comply that could not give rise to any inference unfavorable to defendant. The court properly refused the instruction.

The court refused an instruction requested by plaintiff, which placed upon defendant the burden of overcoming the report by the greater weight of the evidence. In our opinion, if, after treating the referee’s report as prima facie proof of the facts therein found and reported, the jury find the evidence is evenly balanced upon the allegations made by plaintiff,-the verdict should be for defendant.

■ The court refused an instuetion requested by plaintiff that if funds were collected through the department of Bootz which were.not accounted for to plaintiff, the legal presumption was that Bootz dishonestly appropriated said funds, unless the greater weight of the evidence proved that Bootz did not receive the same. The plaintiff showed that Bootz was stationed in a department where he received cash and checks and disbursed cash and made entries in a cash book; but Bootz had other duties to perform in other parts of plaintiff’s store, and in the performance of those duties he was often absent from that department, and he was generally absent therefrom during the noon hour. The proof showed that at least seven other persons occupied and worked in that department at different times when Bootz was absent therefrom. Under this state of the proof there was no such presumption as the instruction stated, from the mere fact that funds were collected in that department which were not accounted for to plaintiff. Also, defendant was not required to overcome plaintiff’s proof by the greater weight of the evidence. This instruction was properly refused.

The court had refused to admit the report as to certain items, amounting to $299.98, and they were not otherwise proved, and the court amended an instruction requested by plaintiff so- as to give effect to that ruling, and also to eliminate the proposition that defendant was required to overcome the report by the greater weight of the evidence. We approven these rulings. But that proposition was incorrectly retained in at least one instruction given for plaintiff.

The contract sued on required plaintiff, within 90 days after any loss thereby secured, to produce for investigation all books, vouchers and evidence in plaintiff ’s possession. Plaintiff requested an instruo tion which, among other things, said that plaintiff had done all that the contract required of it in submitting books to the defendant. The court modified that instruction by striking out the statement about the books. The evidence was in conflict as to whether plaintiff had. complied with that provision, and that was a question for the jury which the court properly refused to take from them.

In some of the instructions given at the request of defendant the jury were told that plaintiff must prove its case by a preponderance of the evidence, but in two instructions given at the request of defendant the, jury were told that plaintiff must prove its case “by a preponderance of the evidence.” The amended declaration practically charged Bootz with the crime of embezzlement. The general rule is that crime when charged in a civil suit must be proved beyond a reasonable doubt. People ex rel. Deneen v. Sullivan, 218 Ill. 419. McInturff v. Insurance Co. of North America, 248 Ill. 92. If this rule is applicable here, several other instructions on each side are incorrect, for they only require plaintiff to prove its case by a preponderance of the evidence. But we regard this as qualified by Foster v. Graf, 287 Ill. 559, where it is held that this rule does not apply where the person accused of the crime in the pleadings and evidence is not a party to the suit but is a stranger to .the record. Bootz, though originally a defendant, was dismissed from the suit before the amended declaration was filed. There is a sense in which Bootz is not a stranger to the record, for the entire litigation centers around his conduct, and whether he was personally dishonest and embezzled or misappropriated his employer’s funds. But in Foster v. Graf, supra, Byan, a clerk of appellant, had indorsed the name of appellant on the back of the checks payable to the latter, which appellee had cashed, and the question was whether Byan had authority to indorse his employer’s name on the back of said checks, or whether he forged said signature. If he forged them he was guilty of a crime, and the case turned on the question whether, Ryan, a clerk of the payee of the checks, was guilty of forgery. The cases do not seem different in principle. If we are right in this, then it was error to give said two instructions for defendant which required plaintiff to prove its case by “a clear preponderance of the evidence.” Indeed, counsel for defendant only claim that plaintiff should prove its case by a preponderance of the evidence, and thereby practically concede that said instructions are erroneous. Crabtree v. Reed, 50 Ill. 206; McDeed v. McDeed, 67 Ill. 545; Lenning v. Lenning, 176 Ill. 180; Nelson v. Fehd, 203 Ill. 120; 38 Cyc. 1755.

In another instruction given at the request of defendant the jury were told that to enable plaintiff to recover damages against defendant, “plaintiff must prove by positive affirmative evidence that the defendant is liable to the plaintiff.” This was very injurious to plaintiff, for plaintiff’s case was not supported by “positive affirmative” evidence, and in the very nature of the case plaintiff could not produce such proof, but its evidence consisted of many facts and circumstances which it was claimed tended to incriminate Bootz as charged in the declaration. The jury would not be likely to consider the referee’s report as “positive affirmative evidence,” but quite the contrary.

As the judgment must be reversed and a new trial awarded for the errors indicated, we deem it not necessary or proper to discuss the evidence, which is likely to be much more complete at another trial.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Niehaus, J., took no part.


text:
    Claude Vaughn, Plaintiff in Error, v. Director General of Railroads, Defendant in Error.
    Gen. No. 6,778.
    1. Appeal and error, § 1797

      —when reversal with direction to enter verdict is proper. Semble, that in an action by an insured for the use of the insurer to recover damages for the destruction of the insured property by fire, in which there was a jury trial and a verdict for defendant, judgment for defendant is not in bar, and if the point is raised by counsel, the Appellate Court will reverse with directions to enter a proper judgment.
    2. New trial, § 86*—when grounds relied on are waived,by motion. One filing a written motion for a new trial specifying the points relied upon thereby waives all points not so specified.
    3. Appeal and error, § 607*—when grounds for new trial cannot be urged on appeal. When the findings of the jury on special interrogatories are not specified, in the grounds for a new trial stated in the written motion therefor, they cannot be assigned as error in the Appellate Court.
    4. Appeal and error, § 607*—what objections are insufficient. The statement in the written motion for a new trial that the verdict is against the law and the evidence is not sufficient to raise the point that the answers of the jury to special interrogatories were contrary to the evidence.
    5. Evidence, § 443*—when question to expert witness is improper. Semble, that in an action against a railroad company to recover for the loss of a barn alleged to have been set fire to by a spark from defendant’s engine, it is error to permit an expert, who had not been at the fire and had no knowledge of the velocity of the wind at the time, to answer, over proper objection, a hypothetical question as to how far a spark escaping from an engine would go, while retaining sufficient heat to communicate fire, when a strong wind was blowing from the direction of the engine towards the barn in question.
    6. Appeal and error, § 450*—when objection to evidence cannot be urged on appeal. A proper ground of objection to a hypothetical question cannot be first raised in the Appellate Court even though the question was objected to on other grounds below.
    7. Instructions, § 81*—when instruction is erroneous as unduly emphasizing evidence. In an action to recover damages for the destruction of a barn alleged to have been burned by a fire set by sparks from defendant’s locomotive, an instruction given at defendant’s request that in determining whether the fire was caused by defendant's engine, the jury may consider the size and condition of the appliances in the engine to prevent the escape of sparks and fire, the distance from defendant’s track to the barn, the velocity of the wind and the life of the spark, “and all the other facts and circumstances shown ‘by the evidence,” is objectionable as singling a few matters in evidence favorable to defendant and omitting other matters equally material, such as that the engine was drawing a heavy freight train up a steep. grade and laboring heavily; that it was on a grade 16 or 18 feet above the level of the ground and therefore nearer the roof of the barn; that the fire was discovered 20 or 30 minutes after the train passed; that the fire was then burning on the roof; that the animals in the barn were burned on their heads and backs and not underneath; that there had been no fire in the barn that day and no smoking there; and that no other source of the fire than the engine appeared.
    8. Instbuctions, § 81

      —when instruction is misleading. Instructions which set out a part only of the evidence on a material question are objectionable as tending to mislead the jury to suppose that the matters thus specially called- to their attention are those which are to be especially considered by them and are of controlling importance.
    9. Instructions, . § 81*—what is effect of instruction singling out facts. It is no answer to the objection to an instruction on the ground that it sets out only a part of the evidence on a material question that the other party might have drawn a similar instruction setting out the omitted matters.
    10. Railboads, § 941*—what instruction as to causing fire is erroneous. In an action to recover for the destruction of a barn burned by a fire alleged to have been set by a spark from defendant’s locomotive, it is error to instruct, at defendant’s request, that the mere fact that an engine passed the barn before the fire was discovered does not render defendant liable.
    Erro.r to the Circuit Court of Henderson county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed June 29, 1920.
    Scofield, Hartzell & Califf, for plaintiff in error.
    H. B. Safford, Sloane Turgeon and John B. Ong, for defendant in error; Homer W. Davis and Brown, Sanford, Graham & Soul®, 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 July 2, 1918, a barn and animals and other personal property therein, owned by Claude Vaughn, were destroyed by fire which also communicated to his residence and injured that. He was insured, and the insurance company paid the amount at which its liability was fixed. It claimed that the fire was, set by sparks from an engine of the Atchison, Topeka and Santa Pe Railway Company, under such circumstances that said railroad company was liable for the fire, and it brought this suit in the name of Vaughn for its use under the claim that it was subrogated to Vaughn’s right of action. Defendant here concedes the subrogation if Vaughn has a cause of action against the railway company. The declaration charged that the fire was set by sparks or hot cinders from defendant’s engine; that said engine did not have spark arresting appliances in a good state of repair; that said engine was operated negligently and imprudently, etc. Defendant pleaded not guilty. There was a jury trial and a verdict and a judgment for defendant, from which this writ of error is prosecuted.

The judgment was not in bar. Town of Magnolia v. Kays, 200 Ill. App. 122. If this point had been raised by counsel it would have been our duty to reverse with directions to enter a proper judgment.

At the request of defendant the court submitted to the jury four special interrogatories, which were answered to the effect (1) that the fire was not started by an engine of defendant; (2) that on the day of the fire defendant’s engines from which the fire could have been started were equipped with the best and most approved appliances to prevent the escape of sparks and fire; (3) that at said time said appliances were in good condition; (4) that they were then operated by careful, competent and skilful employees in a careful manner and- without negligence. Plaintiff filed a written motion for a new trial, specifying the points relied upon and thereby waived all points not so specified. Yarber v. Chicago & A. Ry. Co., 235 Ill. 589, on p. 603. Plaintiff’s written motion for a new trial declared the verdict to be against the law and the evidence. No point was made that the special verdicts were contrary to the evidence. It has been' held many times that that point does not apply to the answers to special interrogatories and that when the special findings are not mentioned as the ground for a new trial, they cannot be assigned as error in the Appellate Court and the judgment cannot on that ground be reversed. We so held in Kristel v. Michigan Cent. R. Co., 213 Ill. App. 518, and collected some of the authorities on page 528. It is therefore settled beyond dispute for the purposes of this hearing that the evidence warranted the special verdicts that on the day in question defendant’s engine, which plaintiff claims set out this fire, did not set the fire, and that it was equipped with the best approved appliances for arresting sparks, and that they were in good repair and operated by a competent employee. That leaves for determination only the question whether there were any errors adverse to plaintiff in rulings on evidence or instructions which may have aided to produce said special verdicts. ;

Defendant introduced an expert upon the subject of spark arresting devices and their practical operation, and, after qualifying him to a certain extent, put to him a hypothetical, question, asking how far under circumstances stated in the question a spark escaping from an engine would go while retaining sufficient heat to communicate fire. The answer was 65 feet, while the evidence showed this bam to be over 200 feet from the railroad track on which the engine supposed to have set the fire was proceeding. The hypothetical question included the proposition that a strong wind was blowing from the direction of the engine towards the building. The court overruled objections to the question. Our attention is not drawn to any case in this State discussing this question. In Hitchner Wall Paper Co. v. Pennsylvania R. Co., 158 Fed. 1011, a witness had been asked how far a spark on a windy day, going through a mesh of the size used in the Pennsylvania railroad would carry and be capable of setting fire. The trial court sustained an objection to the question. The reviewing .court said it was unable to see what aid the jury could have received from permitting the witness to answer so general and indefinite a question. The court said: “It would depend entirely upon how strong the wind was blowing. ‘A windy day’ is a very indefinite expression. A witness should state facts rather than conclusions, especially in matters of ordinary and general information, such as involved in the question objected to.”

On appeal to the circuit court of appeals the same view of said question about “a spark on a windy day” was approved in 168 Fed. 602, and in speaking of said question to said witness the court said': “The question as to how far a spark would carry on a windy day clearly did not relate to his knowledge as an expert locomotive builder, and as a matter of ordinary observation the elements of. the strength and character of the wind were too uncertain to make his opinion of use in determining any issue in the case.” In the case before us the expert witness had not been at the fire and had no knowledge of the velocity of the wind at the place in question at the time of the fire. The jury had no means of knowing whether, in answering the question which assumed that a strong wind was blowing, he meant a velocity of 10 miles per hour or 20 or 40. We think the question was improper so far as it involved that element. But plaintiff’s objections did not relate to what the question said about .the velocity of the wind. If that point had been raised the question might have been amended. For that reason this objection is not available to plaintiff here.

The seventh instruction given at the request of defendant told the jury that in determining whether the fire was caused by sparks from defendant’s engine, they had the right to consider the size and condition of the appliances in the engine to prevent the escape of sparks and fire, the distance from defendant’s track to the barn, the manner in which the engine was being operated, the velocity of the wind and the life of the spark, “and all the other facts and circumstances shown by the evidence.” This instruction singled out a few matters in evidence favorable to defendant and omitted other matters equally material in determining the question to which said instruction was directed. Among the items of evidence so omitted are proof that the engine in question was drawing a heavy freight train up a steep grade and laboring heavily; that it was on a grade 16 or 18 feet above the level of the ground and therefore that much nearer the roof of the bam; that the fire was discovered 20 or 3,0 minutes after said train went by; that the fire was then burning in the roof of the barn; that the animals in the barn were burned on their backs and the top of their heads and not underneath their bodies; that there had been no fire in the barn that day and had been no smoking there; and that no source of the fire appeared other than from defendant’s engine. Instructions of this character which set out a part only of the evidence upon a material question have been very often condemned. Chapman v. Cawrey, 50 Ill. 512; Drainage Com’rs v. Illinois Cent. R. Co., 158 Ill. 353, on pp. 358, 360; West Chicago St. Ry. Co. v. Petters, 196 Ill. 298; Weston v. Teufel, 213 Ill. 291; Chicago City Ry. Co. v. Lowitz, 218 Ill. 24; Stern v. Bradner Smith & Co., 225 Ill. 430, on p. 434; Healea v. Keenan, 244 Ill. 484; Geohegan v. Union El. Ry. Co., 266 Ill. 482, on p. 498. There are many Appellate Court decisions to the same effect. We so held in Sage v. Johnson, 205 Ill. App. 85. The objection to such an instruction is that it tends to mislead the jury and to lead them to suppose that the matters thus specially called to their attention are the ones to be specially considered by them and are the matters of controlling importance. We do not think it an adequate answer by defendant that plaintiff might have drawn a similar instruction setting out the omitted matters.

By the ninth instruction, given at the request of defendant, the jury were told that the mere fact that an engine passed the bam before the fire was discovered- does not render the defendant liable. That is objectionable upon the grounds already stated and is like the instruction condemned in West Chicago St. Ry. Co. v. Petters, supra, and like that condemned in Chicago City Ry. Co v. Lowitz, supra, and discussed on page 32 in that opinion. The tendency of the instruction was to cause the jury in considering the evidence to reject the fact that the engine passed the barn shortly before the fire was discovered. As these instructions were erroneous and bore directly upon the questions submitted to the jury by the special interrogatories, we are of opinion that a new trial should be awarded.

The judgment is therefore reversed and the cause remanded.

Beversed and remanded.