text:
    Illinois Commercial Men’s Association v. Mary M. Perrin.
    Gen. No. 4,840.
    1. Corporations—when directors’ meeting valid and regular. When all directors are present and participate in a meeting, sufficient notice will he presumed in the absence of evidence to the contrary.
    2. Fraternal benefit societies—what essential to valid assessment. Where the power to make an assessment is permitted upon an existing necessity therefor, it is incumbent upon the society, in order to establish the validity and propriety of the assessment, to show by affirmative evidence that the necessity existed.
    3. Practice—lohen ruling erroneous for reason assigned, will not be sustained notwithstanding existence of valid reason therefor. An erroneous ruling to a specific objection will not be sustained even though the ruling is correct for another and unassigned reason if the party against whom the ruling was made would be prejudiced by the sustaining on review of the ruling because of the unassigned reason.
    4. Instructions—error to refuse, which tell jury that they must not disregard law given by court. It is error to refuse an instruction which tells the jury that the instructions given by the court are the law and that they have no right to disregard any of them.
    5. Instructions—when, upon credibility of witnesses, properly refused. An instruction upon the credibility of witnesses is properly refused where it employs the phrase, “circumstances appearing on the trial,” instead of the clause, “circumstances appearing in evidence.”
    6. Instructions—when upon preponderance of evidence properly refused. An instruction upon the question of the preponderance of the evidence is properly refused which omits from the matters to be considered by the jury “the number of witnesses testifying to any particular fact or state of facts.”
    Assumpsit. Appeal from the Circuit Court of Lake County; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    James Mahee, for appellant.
    Ohables B. Obebmeyeb, for appellee.
   Mr. Justice Thompson

delivered the opinion, of the court.

The appellant is a mutual accident insurance company doing business on the assessment plan, and is engaged in insuring commercial travelers against accident. On November 7, 1903, appellant received Frank E. Perrin as a member, and issued to him a policy of insurance or benefit certificate, providing that in consideration of the payment of certain annual dues and also upon the payment of all assessments made and assessed against him as a member of said' association, within the time provided ,for the payment thereof, there shall be paid to said member certain benefits in case of accidental injury, and in case of accidental death of said member, there shall be paid to Mary M. Perrin, mother of said member, the sum of $5,000 subject to the provisions of the by-laws of said association and all amendments thereto. On the night of July 16, 1904, Frank E. Perrin, in attempting to get on a moving freight train at Lake Bluff, received such injuries that he died three days later. Mary M. Perrin, the beneficiary named in the policy, brought this suit against the insurance association and recovered a verdict for $5,000 on which judgment was rendered against it. The association appeals from this judgment.

The declaration contains two counts based upon the benefit certificate. The defendant filed the general issue and two special pleas. No replications were filed to the special pleas, but the appellant states and the appellee conceded that it ivas agreed (although this agreement appears to have been omitted from the record), that the special pleas might be disregarded, and that all proper defenses might be made, and all competent and proper evidence introduced under the general issue with the same effect as if special pleas had been filed.

Appellant contends that there is error in the following particulars: (1) That it made an assessment of $2 on each, member of the association on April 30, 1904, called June 1, and due July 1, 1904, and that this assessment was not paid, and that the certificate had lapsed at the time Perrin received the injury, and that the court erred in sustaining objections to and excluding evidence regarding this assessment, and also in sustaining objections to evidence offered to show the mailing of a notice of that assessment to Prank E. Perrin; (2) that the membership was void because the applicant stated in his application for membership that he had been a commercial traveler for one year preceding the application, whereas he had not been a commercial traveler that length of time; (3) that appellee cannot recover, for failure to give the association written notice of the death within fifteen days thereafter, and to present proof of death within thirty days, as required by the by-laws; (4) that appellee cannot recover, because the deceased was not exercising due care for his self-protection as required by the bylaws at the time he met the accident which caused his death; (o) that appellee cannot recover, because at the time deceased was injured he was violating a law of the State, and under the by-laws that invalidated the certificate; (6) that there was error in giving and refusing instructions.

Section 1 of article III of the by-laws of the association provides: “The officers of the association shall he a president, a vice-president, a secretary and treasurer, and a board of directors consisting of ten members.” Section 1 of article VI of the by-laws provides: “The hoard of directors may order -an assessment of not to exceed two dollars upon each member of this association when needed.” Section 4 of article X provides: “The hoard of directors shall hold a regular meeting at such time in each month as they may select, to consider such business as may come before them, and they shall hold such special meetings as the interests of the association may require, such meetings to he called by the president, or in his absence by the vice-president. The secretary shall mail to each member of the board of directors, not less than three days before every regular and special meeting of such hoard of directors, a notice of the time and place of such meeting.”

Oral proof was made that for thirteen years the hoard of directors had met regularly on the last Saturday of every month. On the hack of the application for membership signed by Frank E. Perrin is printed the following: “The regular board meetings are held the last Saturday of each month at the office of the association in Chicago, Ill.” The appellant offered in evidence the record of a meeting of the board of directors held on Saturday, April 30, 1904, as follows: “April 30, 1904. The regular meeting of the board of directors was called to order by President Geo. W. Smith, at 8.20 p. m. The following members answered to roll call: president, George W. Smith; vice-president, L. A. Tyler; B. F. Carr, C. C. Fitzmaurice, R. G. Murdock, F. W. Seyfaith, F. A. Warren, R. M. Sweitzer, W. W. Kinkley, J. W. Stoll, S. S. Blum, and F. F. Joyce.”

“The minutes of the regular meeting of March 26, 1904, were read and approved-.” * * * “ Moved by Mr. Blum, seconded by Mr. Carr, that assessment No. 41, $2.00 from each member, be called June 1st, due July 1, 1904. Carried.” * * “Approved May 28, 1904. R. A. Cavenaugh, Sec’y & Treas.” * *

The minutes of the meeting of May 28th, showing a full board present and the approval of the record of April 30th, were also offered in evidence. One of the duties of the secretary as provided in the by-laws is, “to prepare and send all notices of meetings of the association and of the board of directors.” The secretary, Cavenaugh, testified that about seven days before April 30th, he wrote ten letters, one to each member of the board of directors, and sent one by mail to each director at his address, but was not permitted to give the contents of the letters for the reason it was not shown that the originals could not be produced or that he did not have a copy thereof.

The appellee objected to the record of the meeting at which the assessment was made for the reason it was not proved that the meeting was regularly called and that it was not proved that the secretary had sent out the notice required by the by-laws. The court remarked, “There is nothing here to show it was called legally or properly in accordance with the by-laws, unless it was so done it is my impression that it would not be a regular meeting that would be binding’ on any outsider,” and sustained the objection. After the objection had been sustained the further objection was made that there was no showing* that there was any necessity for the assessment. Counsel for appellant stated that the board of directors did not need to show their reasons for those things, and the court remarked that that was a matter within their discretion. The court sustained the objection to the record because of the first reason assigned. The record itself shows that every director and all the officers were present at the meeting* of April 30th. When all the directors are present and participate in the meeting sufficient notice will be presumed, in the absence of evidence to the contrary. Sargent v. Webster, 13 Met. (Mass.), 497; Chase v. Tuttle, 55 Conn., 455; Minneapolis Times Co. v. Nimocks, 53 Minn., 386. The court erred in excluding the evidence because of the failure to prove the mailing of notice of the meeting by the secretary. Had the court sustained the objection because of failure to prove the necessity of the assessment alone we are of the opinion the ruling would have been correct, but the intimation was that that was not necessary. The by-laws providing that “The board of directors may order an assessment of not to exceed two dollars upon each member of this association when needed,” the necessity of the assessment was a prerequisite to making it.The resolution not showing within itself that necessity, it devolved upon the association to show that fact by direct and affirmative testimony before the resolution could be admitted. Bagley v. Grand Lodge of A. O. U. W., 131 Ill., 498; Northwestern T. M. Assn. v. Schauss, 148 Ill., 304; Supreme Council Am. Leg. of Honor v. Haas, 116 Ill. App., 587; Mutual Aid Assn. v. Hogan, 124 Ill. App., 447. Had it not been intimated that proof of the necessity of the assessment was not a prerequisite, and the objection to the record had been sustained because of such failure of proof alone, the appellant might have made that proof. The court having sustained the objection for a particular reason urged by appellee, he should not now be permitted to urge an entirely different reason.

Instruction No. 2 asked by appellant and refused said that the instructions given by the court are the law and that the jury had no right to disregard any of them. We hold that this announced a correct proposition of law. In criminal cases juries are the judges of the law, and some of the jurors may have sat in such cases and know that state of the law, and it was proper to advise them that they were not at liberty to disregard the instructions of the court. Instruction five on the credibility of witnesses was properly refused because it used the phrase, “circumstances appearing on the trial” instead of “circumstances appearing in evidence.” Instruction No. 6 upon the preponderance of the evidence, omitted from the matters to be considered by the jury “the number of witnesses testifying to any particular fact or set of facts.” E., J. & E. Ry. Co. v. Lawlor, 229 Ill., 621. Some of the other refused instructions were contained in the instructions given, and others were properly refused as calling attention to and thereby emphasizing particular facts.

We do not think it proper on the present appeal to express any opinion concerning other questions presented, as the proof upon them upon another trial may be different or more complete. The judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Ida L. Pasquay, Appellee, v. Arthur Keithley, Appellant.
    Gen. No. 4,932.
    1. Statute of frauds—when oral contract for sale of land valid. An oral contract for the sale of land may be as obligatory upon the parties to it as a written contract, where such parties do not raise the objection that it is not in writing.
    2. Statute of frauds—when cannot he availed of in equity. In equity a defendant cannot avail himself of the Statute of Frauds unless he pleads it.
    3. Statute of Frauds—who cannot plead defense of. The defense of the Statute of Frauds is personal and cannot be made by persons who are neither parties nor privies thereto; creditors are not privies to contracts of their debtors and cannot interpose the Statute of Frauds.
    4. Notice—effect of possession as. Possession of real estate is notice of a claim of equitable right therein.
    5. Attachment—extent of rights acquired hy. A creditor by attachment obtains no greater right than his debtor had.
    Bill in chancery. Appéal from the Circuit Court of Peoria County; the Hon. L. D. Puterbaugh, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Statement by the Court, Ida L. Pasquay, appellee, filed her bill in chancery against Ernest A. Pasquay, Rudolph Pasquay, Albert Pasquay and Arthur Keithley, together with Rudolph Pasquay, Ernest A. Pasquay and Albert Pasquay, as administrators with the will annexed of the estate of Emilie Pasquay, deceased, praying for certain relief therein. The'bill was afterwards amended.
    The bill as amended alleges in substance that Emilie Pasquay died testate in February, 1903, leaving Albert, Rudolph and Ernest Pasquay with complainant as her only heirs, all of whom were of full age at the time of their mother’s death; that she died seized of the south half of lot six in block sixty-four in Monson and Sanford’s addition to the city of Peoria, wdiieh was of the fair cash value of $4,500; that said will was admitted to probate; that the executors and trustees named in said will declined to qualify, and her three sons were appointed administrators; and the will is made a part of the bill. The provisions of the will involved in this case arc:
    “Second. It is my will that my executors shall divide all my estate (except the sum of $4,500 of which I will dispose in the next clause) in equal shares among my children.
    “Third. I give and bequeath to my daughter, in addition to her one-fourth share of my estate, $4,500, which sum I give to my executors and to the survivors and survivor of them.
    “In trust for the purpose of paying my said daughter, Ida, the income and interest of the same in semi-annual installments for her sole personal use; and if such income or interest should not be necessary for my said daughter’s use or support, the same to be reinvested the same as the principal and whatever sum shall remain or have accumulated at the death of my daughter, Ida, shall be divided among her brothers, their heirs, or assigns, it being my will that said interest or income from said $4,500 shall be paid to my daughter, Ida, during the term of her natural life.
    “Fifth. It is my will that any money advanced by me to any of my children, and notes and mortgages given as security for such money with interest remaining unpaid thereon, should be kept out and deducted from the share or shares of such child or children at the division of my estate, unless I should otherwise hereafter dispose.
    “Sixth. I wish to have my executors arrange a sale of my personal property and real estate that I may possess at the time of my death, giving my children the preference as purchasers at such sale.
    “Seventh. I give to my said executors, their successors and successor, full power to execute all necessary deeds and conveyances in the disposition of my estate and to carry this will into effect.”
    It is alleged that the estate of Emilie Pasquay consisted largely of personal property, part of which was an indebtedness due from Ernest Pasquay of $3,025, from Rudolph of $900, and from Albert of $625, for moneys advanced by the deceased; that said administrators took possession of all said personal estate inventoried at $16,129.57, and held the same without making any account; that the debts against the estate amounted to only $429.31; that complainant became one of the bondsmen of said administrators; that the will directed the executors to sell all the personal and real estate owned by the deceased and divide the proceeds, one-fourth to each of the children of deceased, withholding $4,500 for the benefit of complainant; that in March, 1903, prior to tlieir appointment as administrators, complainant and her three brothers entered into a verbal agreement that instead of said real estate above described being sold and converted into money, the same should be conveyed to complainant in lieu of the $1,500 bequeathed to her by the will of her mother, and that at the time of said agreement the said Ernest, Rudolph and Albert Pasquay delivered to complainant the exclusive possession of said described estate, and she entered into possession of the same and has been ever since in possession of the same in pursuance of said agreement and of conveyances hereinafter mentioned; that no deed of said property to this complainant was made by Ernest, Rudolph and Albert at the time of the delivery of possession to her, but they held the said $4,500 bequest to her as well as all the balance of said estate except a note and mortgage for the sum of $1,200; that afterwards by virtue of said agreement, and in consummation thereof, on August 1, 1904, Albert conveyed by quit-claim deed the said real estate to Rudolph, and on August 12th Rudolph conveyed in like manner to complainant, and on August 17, 1904, Ernest in like manner conveyed to complainant.
    The bill further alleges that on July 2, 1904, Arthur Keithley sued out of the Circuit Court of Peoria county a writ of attachment against Albert Pasquay, and the sheriff of said county under said writ levied on said real estate, and upon the interest of Albert Pasquay; that afterwards, on January 3, 1905, a judgment was obtained in said attachment against Albert Pasquay, both on the attachment and in assumpsit, for $1,228.14, and afterwards the said property was sold on a special execution issued on said attachment, and said Keithley purchased said interest of said Albert Pasquay for $750, and now claims to be the owner of an undivided fourth interest therein; that at the time of the issuing and levying of said writ of attachment complainant was in full and exclusive possession of said real estate and that said Albert Pasquay had received all his rights, credits and shares in said real estate before the issuing of said writ; that by reason of the premises aforesaid the said Albert, Ernest and Rudolph by joining with complainant “had the right to convert said real estate into real estate instead of into the proceeds” as directed by said will in favor of their sister, and did exercise the said right with the consent of complainant, and said Albert had no right against the protest of complainant, either voluntarily or by the action of creditors, to make such conversion or to part with his interest, and further alleges that complainant neither gave consent nor authorized said levy, but repudiated the same and alleges that said levy and proceedings thereunder are void and a cloud upon complainant’s title; that at the death of Emilie Pasquay, complainant and said Albert lived on said premises, and complainant continued to make said premises her home until the making of the deeds aforesaid; that in addition to said $1,200 which have been turned over to" complainant as a credit upon her undivided fourth interest in said estate, and after allowing the full value of said real estate, there is still due several thousand dollars, which is a first and prior lien under the provisions of said will as against said Keithley, and in case said real estate conveyed to complainant were to be sold and complainant were given her rights there would be more coming to her than the full amount of proceeds of said real estate, and in the event that said real estate be sold by a trustee appointed to make such sale, that the rights and equities of complainant should be ascertained and decreed to her as against all' parties hereto. The bill prays that on a hearing the rights of the parties be ascertained; that the said attachment proceedings, including the levy and sale and the deed of conveyance thereunder by and between the said Arthur Keithley and Albert Pasquay, be declared null and void as against the rights and equities of complainant and a cloud upon her title, and that "the title to said premises be confirmed and decreed in complainant free from all rights of said Albert Pasquay and Arthur Keithley, or in the event that said premises should be sold under said will, that a trustee be appointed and that the complainant be declared entitled to the proceeds thereof.
    The defendant Keithley filed a general demurrer to the bill as amended. The other defendants entered their appearance and were defaulted for failure to answer. The demurrer of Keithley was overruled, and he abiding by his demurrer, a decree was entered finding and decreeing that Albert Pasquay had no interest in said premises at the time of the levy of the attachment, and that said proceedings by said Keithley were null and void so far as they affected the title of complainant to said real estate, and further decreeing that the title to said real estate be vested in complainant. The defendant Keithley appeals.
    Arthur Keithley, for appellant.
    Sheen & Miller, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

The will of Emilie Pasquay directed that her real estate should be by her executors converted into money and divided amongst the children in equal shares, except that $4,500 was to be set apart and the income paid semi-annually to Ida Pasquay, appellee, and at her death the principal divided among her brothers, their heirs or assigns.

The bill alleges that before the will was probated' in March, 1903, the complainant and her three brothers, who were all of age and were the only persons interested in "the estate, made an agreement that the real estate in controversy should not be converted into money for the purpose of distribution, as directed by the will, but that it should be conveyed to complainant in lieu of the $4,500 bequeathed to her by her mother, and that at that time Ernest, Rudolph, and Albert delivered to complainant exclusive possession of said real estate and she then entered into possession, and has remained in possession ever since. This contract, while not in writing, was one that the parties thereto had the right to make and carry out.

An oral contract for the sale of lands may be as obligatory on the parties to it as a written contract where they make no objections themselves that it is not in writing; and in equity a defendant cannot avail himself of the Statute of Frauds unless he pleads it. School Trustees v. Wright, 12 Ill., 432; Kelly v. Kendall, 118 Ill., 650; Wilson v. Mason, 158 Ill., 304. But the defense of the Statute of Frauds is personal, and cannot be made by persons who are neither parties nor privies thereto. It does not lie in the mouth of a third person to object for the parties to a contract that they are not bound by its terms because it is verbal. Creditors are not privies to contracts of their debtors and cannot interpose the Statute of Frauds. Singer, Nimick & Co. v. Carpenter, 125 Ill., 117. The parties to the contract neither claim the benefit of the Statute of Frauds nor defend, but by their default admit its validity, and appellant not being in privity with any of the parties cannot be heard to say it is not-a valid and binding contract. The general demurrer of appellant admits the truth of the allegations well pleaded, amongst which are that the interest of Albert Pasquay was sold to appellee in March, 1903, more than a year before the attachment was sued out, that appellee at that time took the exclusive possession of said property and has remained therein continuously ever since, and that she took the same as payment of $4,500, part of her share of the estate. By that contract Ida Pasquay became the equitable owner of the property for a valuable consideration, and being in possession of it, appellant could not by his attachment obtain any greater right than Albert Pasquay had at the time of the attachment.

Appellee’s possession of the real estate was notice to appellant of her equitable rights. Maghee v. Robinson, 98 Ill., 458; Boyer v. Chandler, 160 Ill., 394. The equitable rights of a purchaser of real estate who has paid the consideration and is in possession will he protected in equity, and possession is notice of all his rights. Gallagher v. Northrup, 215 Ill., 563; Simonton v. Godsey, 174 Ill., 28; Moore v. Flynn, 135 Ill., 74.

The parol sale by three of the legatees to the remaining legatee was not void. “The parties to a parol contract for the sale of land might surely consummate it at any timo, and unless one of them chose to interpose the statute as a legal defense to an action for refusal to consummate such an agreement, it would evidently he obligatory.” Whitney v. Cochran, 1 Scam., 209. “Practically all the writers on equity jurisprudence are agreed that contracts not under seal, and even contracts not in writing affecting or concerning an interest in land, are recognized in equity if they have been so far performed that to permit a party to repudiate them would of itself be a fraud,—and this court is committed to this doctrine.” Ashelford v. Willis, 194 Ill., 492. When the contract between appellee and her brother was made in March, 1903, and appellee placed in the exclusive possession of the lot in controversy, Albert Pasquay had no equitable interest in the lot whatever, and appellant could not by levying an attachment obtain any greater right than his debtor had. The equities of appellant as a subsequent attaching creditor were not of equal right -with those of appellee, and the demurrer was properly overruled.

The bill does not allege that Keithley had obtained a deed under his certificate of purchase, and therefore no freehold is involved. Helton v. Elledge, 199 Ill., 95.

The decree is affirmed.

Affirmed.


author: Mr. Justice Thompson Willis, P. J.,

text:
    Daniel Conlon, Appellee, v. Chicago Great Western Railway Company, Appellant.
    Gen. No. 4,945.
    1. Instructions—when error to refuse, upon credibility of witnesses. Where some of the witnesses testifying in a cause have made conflicting statements, it is error to refuse an instruction telling the jury in substance that if they believe that any witnesses wilfully and knowingly swore falsely to any fact material to the issues in the cause, then they are at liberty to disregard the entire testimony of such witnesses except insofar as it might have been corroborated by other credible evidence or by facts or circumstances proven on the trial.

      2. Instbuctions—when upon measure of dam,ages erroneous. An instruction as to the measure of damages is erroneous where it does not confine the compensation to he awarded to such injuries as were the proximate result of the accident.
    3. Instructions—should not refer to amount of ad damnum. It is improper in an instruction to call the attention of the jury to the amount claimed in the declaration; but such impropriety is not in itself ground for reversal.
    4. Appeals and errors—what question will not he raised hy the court of its own motion. A serious defect in the bill of exceptions, consisting in the lack of an exception to the overruling of a motion for a new trial, will not he raised by the court sua sponta.

    Willis, P. J., dissenting.
    Action in case for personal. injuries. Appeal from the Circuit Court of Kane County; the Hon. Linus C. Ruth, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    J. B. Stephens, for appellant; A. G1. Bbiggs, of counsel.
    Russell & Eagan, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

On January 21, 1903, the Chicago Great Western Railway Company, appellant, operated a railroad running almost due east and west that crossed a public highway known as the “county line road” running north and south about four miles cast of the city of Sycamore, Illinois. On the night of that day, or early morning of the next, Daniel Conlon, appellee, while driving a one-horse buggy over this crossing was struck by a freight train of appellant and suffered serious injury. This suit was brought against the railway company to recover damages resulting from that injury. He recovered a verdict for $12,000, a remittitur was entered for $8,000 and judgment rendered in his favor for $4,000. The Chicago Great Western Railway Company prosecutes this appeal from that judgment.

The declaration contains four counts alleging severally, general negligence, failure to ring a bell or sound a whistle, excessive speed of the train and a failure to provide a suitable headlight for the locomotive.

The evidence shows that at the place wdiere the appellee was injured the country is level prairie and the railroad is graded up from six to eight feet above the level of the prairie; that the appellee and a companion, Edward OAIalley, had been drinking during the preceding evening and night, and that while driving south in a covered buggy with the side curtains down on the “county line road” shortly after midnight, when the thermometer registered ten degrees below7 zero and the ground v'as covered with-snow, the rig v7as struck on this crossing by a freight train going east; that the train Avas running down grade and going slow preparatory to going upon a siding at Bichardson, near this crossing. The right leg of appellee was broken about the middle third of the femur. The appellee was taken to a hospital at Sycamore, where his leg was set by Dr. Brown, who attended him there about ninety days. He then went home. The evidence is conflicting as to vdietlier the appellee did not, against the instructions of his attending surgeon, after going home, remove the splints and bandages from the broken limb and use it before bony union had taken place. The leg became bent, and appellee went to a hospital at Aurora, where the leg was opened by a surgeon, rebroken and reset. From the Aurora hospital he went to a hospital in Chicago, where the leg Avas amputated because of its condition. The appellant did not claim that the bell was rung or the whistle bloAvn. The defense Avas that the appellee Avas so intoxicated that he Avas incapable of and did not exercise ordinary care for his oaa'u safety. The appellee claims that there Avere obstructions on the Avest side of the highvray that interfered with his seeing the train, AA'liile the appellant claims there Avere no obstructions except some scattering wíIIoav bushes that at that season of the year did not interfere Avith travelers, in the exercise of ordinary care, seeing trains. It Avas also a disputed question of fact whether the serious results that folloAved after the appellee left the first hospital Avere not due to his own negligence and to his disobedience of the orders of his surgeon. The evidence was in very sharp conflict on these questions.

With the evidence in such conflict, and some of the statements of some of the witnesses on the direct and cross-examinations not being consistent and harmonious with each other, the appellant requested the court to give a stock instruction, that if any witness had wilfully and knowingly sworn falsely to any fact material to the issues in the case, then the jury were at liberty to disregard the entire testimony of such witness, except in so far as it may have been corroborated by other credible evidence or by facts and circumstances proven on the trial. This instruction was refused. Ho instruction "was given on that subject. Appellant had the right to have the jury instructed to that effect and if such an instruction had been given, the jury might have arrived at a different verdict. The judge who tried this case died before the hill of exceptions was signed. Had the hill of exceptions been settled before him there might have been something appearing in the record concerning the refusal of this instruction, but we must assume that the record is complete.

The instruction on the measure of damages in case the jury found for plaintiff should have confined the compensation to damages for such injuries as were the proximate result of the accident. If the appellant was liable for damages resulting from the accident, yet if appellee by his own negligence or want of ordinary care thereafter increased the injury, the appellant would not be liable for the damages caused by such subsequent negligence, if any, of appellee. The instruction also concludes with the phrase, “not exceeding the amount claimed in the declaration”; this is an unnecessary statement, and subjects it to criticism, although not reversible error. The motion by appellant for a new trial included as a ground therefor the refusal of the instruction above discussed, and the point was thus presented to the trial court. There is a serious defect in the bill of exceptions as to an exception to' the overruling of the motion for a new trial. But the point is not raised in appellee’s brief and argument, and it may well he it could have been cured by amendment if it had been so raised. The majority of the court conclude the court should not raise the point of its own motion. As the case must he remanded for a new trial we express no- opinion concerning the merits of the case.

For the error in refusing the instruction asked by appellant, the judgment is reversed and the cause remanded.

Reversed and remanded.

Willis, P. J.,

dissenting.

The bill of exceptions does not show an exception by appellant to the action of the trial court in overruling its motion for a new trial. For that reason I am of opinion that the questions discussed in the opinion of the majority of the court are not presented for our determination. I am therefore of opinion that the judgment should he affirmed.


author: He. Justice Thompson

text:
    Otto Olson, Appellant, v. Louisa Brundage, Appellee.
    Gen. No. 4,946.
    1. Verdict—when not disturbed. A verdict will not be set aside on review if it compensates the plaintiff for the actual damages shown by the evidence merely in order that he may have another opportunity to seek the allowance of exemplary damages.
    2. Practice—when motion to suppress depositions comes too late. A motion to suppress depositions comes too late when first made during the trial if the objections were such as could be cured by the retaking of the depositions.
    3. Evidence—when self-serving statements become competent. Where one party introduces evidence as to a particular conversation, the entire conversation becomes competent even though it may contain self-serving declarations otherwise incompetent.
    4. Appeals and errors—what question waived on review. Questions not pointed out in the written motion for a new trial specifying grounds therefor, are deemed to have been waived and will not be considered on review.

      Action in case for personal injuries. Appeal from the Circuit Court of Winnebago County; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    B. A. Knight and Johnson & Johnson, for appellant.
    Fisher & Forth, for appellee.
   He. Justice Thompson

delivered the opinion of the court.

Otto Olson, appellant, brought this action in case against Louisa Brundage, appellee, to recover damages for personal injuries, and recovered a verdict for $75 on which judgment was rendered. Olson appeals and insists that the judgment is inadequate and thát he should have been allowed exemplary damages.

The evidence shows that the appellee is a widow living-on a farm south of the city of Rockford, and at the time of the injury for which this suit is brought appellee’s daughters and their sons were visiting her. The boys had a 22-calibre target rifle, and bad been shooting- at a mark twenty-one feet distant. The boys laid the gun down and went to the fields, leaving appellee with her two daughters and a little grandson sitting on the porch. One of the daughters asked, “How does this thing shoot?” The other daughter said, “I can show you,” and the appellee said, “I don’t know, I can’t load it.” Thereupon the grandson took the gun to the appellee, and the party after some time and trouble got the gun loaded. The appellee said, “Where shall I shoot?” and pointed the gun towards some chickens in the yard nearby. One of the daughters said, “Don’t shoot there, ma, or you may kill a chicken.” Appellee again asked, “Where shall I shoot?” and looking towards her neighbor Carlson’s farmhouse across the road from her residence saw appellant one hundred and nineteen yards distant in the lane driving a team and wagon toward the public highway, and without taking aim, said, “There comes Otto. I wonder if I could hit him,” and fired the gun, hitting appellant in the fleshy part of the arm, the bullet lodging under the skin. The appellant shouted, “What did you shoot me for ?” and jumped behind the wagon, and appellee called out, “Otto, did I kill you?” and he said, “Yes, you have.” Appellee did not know she had shot the appellant and supposed he was jesting, but later learned from Carlson of the accuracy of her aim and the carrying power of the gun. As a result of the wound appellant claims to have lost his wages from July 25th to September 6th. He was receiving $30 per month, with his board and washing. He also visited a doctor three times, and suffered some pain. The evidence shows that three days after the injury he was playing an accordion with both hands, and three weeks after the injury was driving teams and doing other work. At that time he rolled up his sleeve and showed that his arm was healed. The jury who heard the evidence and saw the witnesses fixed the amount of the damages at $75. While we would not have disturbed the judgment had it been for a larger sum we would not be justified in setting aside a judgment that compensates for all actual damages, simply that appellant might make a second effort to obtain exemplary damages.

Appellant contends that error was committed in overruling a motion to suppress a deposition, made because of an alleged informality in the official certificate. The motion was not made until after the appellant had closed his evidence and appellee had offered the deposition in evidence. It was then too late to make a motion to suppress the deposition. Objections to the form of a deposition that can he cured by a retaking of the deposition, should be made and disposed of before the trial, so that the party may have an opportunity to remedy the defects. T., W. & W. R. R. Co. v. Baddeley, 54 Ill., 19; Merchants Desp. Transp. Co. v. Leysor, 89 Ill., 43. By not making the motion to suppress before beginning the trial, appellant waived any defect or irregularity in the mode by which the deposition was taken, and is precluded from taking advantage of such defect, if any, on the trial. The motion to suppress was properly overruled, without regard to the fact that thq deposition was taken upon a stipulation signed by the parties.

Appellant testified to conversations that occurred between himself and appellee, and, amongst other things, said he went to Brundage’s to settle with her, and she said she would not settle, and “she would go to court with it.” It is now insisted that there was error in permitting the appellee to offer evidence concerning these same conversations, explaining some statements and denying others. The only obj ect of appellant in offering such conversations apparently was to try to show that appellee was destitute of sympathy and oppressive toward appellant. Appellant having offered evidence of conversations between himself and appellee subsequent to the accident, other parts of the same conversations which are favorable to appellee, and, which qualify, explain or contradict what has been proved were competent in her behalf, although the matter offered by her would, if offered independently, be incompetent on the ground that the statements were self-serving. 1 Encyc. of Ev., 385-387; Morris v. Jamieson, 205 Ill., 87; Bailey v. Pardridge, 35 Ill. App., 121. So much of the conversation as relates to the subject-matter of the action may be brought out where a part of such conversations has been proved by the opposite party. There was no error in permitting appellee' to testify to conversations that appellant had testified concerning.

Appellant states that the court erred in refusing three instructions requested by him, but makes no argument thereon and does not point out in what the error consisted, or wherein the jury were not fully instructed.

The motion for a new trial pointed out certain instructions the refusal of which was complained of; error is assigned on part of those pointed out in the motion for a new trial, and on some not enumerated in the motion for a new trial. Error cannot be assigned on instructions upon which no question was raised in the trial court. The only plea was not guilty, and the burden was on the appellant to prove his case. The instructions, of the refusal of which complaint is made, were all substantially given in the appellant’s given instructions, and their refusal was harmless error, as they concerned the right of appellant to recover, and the verdict was for appellant.

Error is assigned on some instructions given for the appellee. The instructions conceded appellant’s right to recover, and permitted a recovery of exemplary damages if the evidence warranted it. The jury by their verdict gave compensatory damages, which includes pay for pain, loss of time and expense, and might have allowed larger damages for the freakish act of appellee done evidently in ignorance of the power of modern firearms and without any intention of injuring appellant. Several instructions concerning “exemplary or punitive damages” were given at the request of appellee. Such damages are never recoverable as a matter of right, but always rest in the discretion of the jury. It is not a legal duty of a jury to award exemplary damages, but they may award such damages where the evidence warrants them. A verdict should not be set aside because of the failure of a jury to allow more than compensatory damages. That was the jury’s privilege. Finding no error, the judgment is affirmed.

Affirmed.


text:
    Lizzie F. Kempton et al., Appellants, v. People, for the use of Frank Kempton et al., Appellees.
    Gen. No. 4,949.
    1. Witnesses—when incompetent by virtue of interest. Where the adverse party defends in a representative capacity, the other party is incompetent by virtue of interest as to everything which occurred prior to the death of the deceased.
    2. Partnership—what essential to charge, with liability upon individual note of member. Where a partnership conducts business in the name of one partner a paper signed by such partner is equivocal, and prima facie it is the individual obligation of the signer; but it may be proved to have been given in a partnership transaction.
    3. Partnership—extent of partner's right to set-off. A partner who has paid an obligation of his firm is not entitled to a preference over other creditors but should be compelled to pro rate with them.
    4. Administration of estates—upon what administrator not entitled to commissions. An administrator is not entitled to an allowance of commissions upon assets which he has charged to himself under protest.
    5. Interest—when delay in payment does not authorize allowance. Delay in payment in order to justify allowance of interest, must be both unreasonable and vexatious.
    Objections to administrator’s report. Appeal from the Circuit Court of Livingston County; the Hon. Thomas M. Harris, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed in part, reversed in part, and remanded, with directions.
    Opinion filed March 11, 1908.
    Statement by the Court. Parker S. Kempton began manufacturing drain tile and brick in February, 1892, and continued the business until December, 1893, in the name of P. S. Kempton. In December, 1893, John Funk became a silent or dormant partner with Kempton under a written contract, the business being continued under the name of P. S. Kempton as before until the death of Kempton on February 27, 1899. Lizzie F. Kempton, the widow of the deceased, was appointed administratrix of the estate and subsequently at her request, John Funk, her father, was appointed co-administrator. On October 23, 1901, these administrators filed what is termed a final report in the estate. At the April term, 1903, of the Probate Court, Funk filed a partnership report which showed that Kempton owed the partnership $4,502.96 and that Funk had assets of the partnership in his possession amounting to $3,732.53, leaving a balance due Funk of $770.43. Objections were filed to both reports by creditors of Kempton. Appeals to the Circuit Court were taken by Funk from the orders made in the Probate Court in the partnership matter, and by the administrators in the matter of the estate. The Circuit Court in the partnership matter found there was a partnership, but disallowed some claims Funk asserted that he was entitled to, on the ground that they were barred by the Statute of Limitations. From the judgment of the Circuit Court in that matter, an appeal was taken to this court, where the judgment of the Circuit Court was reversed in so far as the judgment of the Circuit Court determined that the claim of Funk was barred by the Statute of Limitations, and was affirmed in all other respects. The cause was remanded for further proceedings not inconsistent with the views expressed in the opinion. Funk v. Kempton, 123 Ill. App., 100. The case was appealed to the Supreme Court, where the appeal was dismissed for the reason that the judgment of the Appellate Court was not final. Funk v. Kempton, 221 Ill., 436. That case is now pending in this court on a second appeal as No. 4938. In the matter of the estate, on October 23, 1901, the Probate Court found that there was no partnership between Kempton and Funk and ordered the administrators to “charge themselves with $1,866.26, one-half of the sum total of the accounts and property so treated as partnership property, one-lialf of which amounts to the sum of $1,866.26.” The administrators on the same day filed an account under protest complying with the order of that court. In the appeal from that judgment taken to the Circuit Court the bond shows that the only matter appealed from was the order compelling the administrators to charge themselves with the sum of $1,866.26. On April 16, 1907, the administrators filed a new account in the Circuit Court on their own appeal with reference to the order concerning the sum of $1,866.26 in which they charge themselves with:
    “To the amount charged in first
    report ...................... $2042.18
    To amount received from the co-partnership of Funk & Kempton carried to this account under protest from John Funk, the surviving partner, by the order and mandate of the appellate court to which reference is made and made a part hereof,”............... 3613.69
    Total .................. 5655.87.”

      The account also contains various items of credits claimed as shown and allowed in first report hut not appealed from................ $1649.81
    Also the following items:
    By amount due on widow’s award. . 939.75
    By interest at 5% on same 6 years. 281.92
    By com. on balance, $1989.17, 6% . 119.35
    Total .................... 2990.80
    By balance due estate............ 2665.07
    $5655.87 ' 5655.87
    To balance..................... 2665.07
    By paid note, $500 and interest, ’$129.80 ..................... 593.51
    By int. at 5% on same 4 yrs., 4 mo., "23 d......................... 130.38
    By paid, $1500 note and interest, $67.08 ........................ 1567.08
    By int. on same at 5%, 7 yrs., 10 mo., 10 d................ 578.91
    $2869.88
    This account shows the administrators have paid out more than they received from the estate and leaves nothing for the creditors whose claims allowed amount to $1,156.30.
    To this report objections were filed and at the May term of the Livingston county Circuit Court a trial was had on the report and the objections, and a judgment rendered that “there is due said estate from the co-partnership of John Funk, surviving partner of the late firm of Funk and Kempton, the sum of $3,613.69, upon which amount said Funk was ordered to charge himself with interest at 5 per cent thereon, as found by an order entered in the ease of John Funk, surviving co-partner of the late firm of Funk and Kempton, now pending in this court, amounting to $739.78, making a total of $4,353.47”; also finding that credits for $164.48 and $119.33 for commissions are improper, and that credits amounting to the sum of $2,869.88 which Funk claims he was compelled to pay as security for Parker S. Kempton after his death, are improper and ought not to be allowed, and that $281.92 credit as interest on widow’s award is an improper charge and in lieu thereof the widow will be allowed interest at 5 per cent on the balance of her award which she elected to take in money from the time of the judgment thereon to October 23, 1901. From that order the present appeal is prosecuted.
    Chase Fowler, for appellant.
    White & Tuesburg and A. C. ¡Norton, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

The only question appealed from the Probate Court to the Circuit Court was the question whether there was a partnership between Funk and Kempton, and if there was, what was the proper charge arising out of such business and against whom should it be made? The Probate Court ordered the administrators to charge themselves with $1,866.26, one-half of the total sum of the account of the property claimed to be partnership property. The Circuit Court found there was a partnership and ordered John Funk as administrator to charge himself with all the property claimed to be partnership property. In the former judgment which was appealed to this court by Funk, the surviving partner, the question involved was whether the partnership property should not first be applied to the settlement of the partnership debts and the private accounts between the partners and the partnership. This court held that the dormant or secret partner, “Funk, had no rights growing out of his relation as a dormant partner which can be set up to defeat, obstruct or hinder the bona fide creditors in the collection of their debts out of the property of which Kempton in his lifetime was the apparent owner,” and that the claim of Funk against the partnership was not entitled to any priority over the creditors of the deceased partner. There also appears to have been involved in that appeal the question of the right of the surviving partner to pay himself out of the partnership assets, for notes which he claims that he paid as surety for Kempton, his deceased partner. The Circuit Court in the matter that was heretofore appealed to this court held that the Statute of Limitations was a bar to the surviving partner presenting the notes against the partnership. • This court held that the Statute of Limitations is a personal defense and could not be urged by the creditors against the claims of Funk, and said, “It does not follow, however, that appellant (Funk) may not stand on an equal footing with appellees (the creditors) with respect to all or some portion of his claim.” The question of the Statute of Limitations is not now involved in this appeal. Funk now seeks to have allowed against the estate the sum of $2,869.88, being the amount he paid on a note of $500 and on a note of $1,500 with interest at 5 per cent on the amount paid from the time he paid the respective notes. The notes were signed by Parker S. Kempton and John Funk. The only evidence offered concerning these notes as to the relations. of the makers was that of Funk, the claimant. This was objected to on the ground that he was an incompetent witness. This objection should have been sustained as to everything occurring before the death of Kempton. As far as anything appears in the record these notes may have been the personal notes of Funk, and Kempton may have been the surety. Where a partnership conducts business in the name of one partner, a paper signed by such partner is equivocal, and prima facie it is the individual obligation of the signer. But it may be proved to have been or represented to have been given in a partnership transaction. 4 Am. & Eng. Eycyc. of Law (2d ed.), 180.

Funk paid these notes after his co-partner’s death. In such case if the estate is insolvent he was not entitled to have the money paid for them set-off in full, but only to the extent of his pro rata share, taking the same as other creditors, if they had been presented and proved as claims against the estate. Mack v. Woodruff, 87 Ill., 570. The court properly, sustained the objections to the allowance of any part of the claims for payments made on them by Funk. The burden was on him to prove his claim against the estate of Kempton. There is no competent evidence in the record that the notes were given for any partnership business, or that Funk was a surety or that .they were given for Kempton’s debts.

It is next contended that there was error in sustaining objections to two items of $164.48 and $119.33, for commissions allowed by the Probate Court. It is stated that the item of $164.48 is made up of two items allowed by the Probate Court. We do not find any items allowed by that court that will make up the sum of $164.48 but we assume it is intended to be made up of the items of $111.98 and $55.50, the only items of commissions in the account in that court. The sum of $111.98 is involved in the appeal for the reason it is commission on the $1,866.26 concerning which the appeal was taken from the Probate Court. We hold that commission on an item is involved as much as interest and it has been held that interest on an item is involved in an appeal from such item. Marshall v. Coleman, 187 Ill., 556. The item of $55.50 commission, if that is included in the sum of $164.48, was not involved in the appeal and the Circuit Court had no jurisdiction over it. The item of $119.33 was never before the Probate Court so far as anything appears in the record. That is commission claimed by the administrator on an additional sum they charged themselves with “under protest,” they say by order of the Appellate Court, but all the court said was that the property was to be considered as belonging to the Kempton estate so far as necessary to pay the creditors of that estate. What the court did say is, “If the appellant loaned money to Kempton as an individual or the partnership, or became surety for and was afterwards compelled to pay the debt, or sold property to him or the firm, we perceive no reason why he would not and should not stand on an equality with appellees in the collection of his debt; while his relation as a dormant partner does not in any way render his position better with respect to any claim he may have, still we see no reason why it should render it worse. Any portion of a partner’s claim against the firm which is based on his claim to dividends or profits, earnings, or investments, and all like claims, cannot be placed on an equal footing with creditors, but in cases where he loans money or sells property in good faith and for an adequate consideration had against the firm, there is no reason why he should not share with the other creditors in a distribution of the assets of the firm * * * hut in no view of the case could appellant claim a preference over the exceptors.”

The administrators contending that they should not charge themselves with the partnership assets, there was no error in disallowing a claim for commission upon such partnership property. In probate matters the court is an equitable court and it would not be equitable to allow the administrators a commission on what they claimed belonged to one of them and not to the estate, and the collection or payment of which they resisted.

The court found that John Funk, surviving partner, had on hand of partnership assets $3,613.69, and ordered that he charge himself with the interest thereon at 5 per cent per annum, amounting to $739.78, making a total of $4,353.47, and that the administrators file a report in accordance with this finding. This did not order that Mrs. Kempton, the co-administrator, charge herself with that amount but only that Funk charge himself with that sum. Mrs. Kempton never had possession of the property of this secret partnership so far as appears from the record. It was proper that as administrator Funk should be charged with the property of the dormant or secret partnership in his possession so far as the same is necessary to pay the widow’s award, the debts properly chargeable against the estate of Kempton and costs, the balance, if any, to be disbursed in the settlement of the partnership matter as is by law required. If the partnership statement made by Funk is correct then after the payment of the award, debts, and costs the remainder would go properly to him as surviving partner.

Funk appears to have made the claim in good faith, that he was entitled to apply the partnership property in the settlement of the partnership matters, and he was entitled to litigate the question involved. Delay of payment in order to justify a recovery of interest must be both unreasonable and vexatious. Devine v. Edwards, 101 Ill., 138; Maynard v. Richards, 166 Ill., 466. We cannot see that there was unreasonable and vexatious delays here on the part of Funk. We hold that he should not be charged with the item of $739.78 interest charged against him.

It is assigned for error that the Circuit Court erred in refusing to allow the widow interest on her award. The only matter appealed was in reference to the partnership, namely the order directing the administrators to charge themselves with $1,866.26, the propriety of this charge and what naturally arises out of it; what sum if any they should be charged with and should the charge be made against both the administrators or only the one who was the surviving partner of Kempton. These are the only matters of which the Circuit-Court had jurisdiction. The record does not show that the Probate Court made any order regarding interest on the award, nor was there any appeal in that matter, hence the order of the Circuit Court in that regard was without jurisdiction, and must be reversed.

The judgment of the Circuit Court is affirmed as to the disallowance of the notes paid by Funk, as to the disallowance of commissions on property claimed to be partnership property and as to the charging of $3,613.69 against Funk as administrator, so far as the same is required for the payment of the widow’s award, the debts and the costs; and the judgment is reversed as to the order requiring Funic to be charged with the sum of $739.78 of interest, and as to that part of the judgment disallowing the sum of $55.50 commissions, and that part of the order allowing interest on the widow’s award to October 1,1901; and the cause is remanded with directions to render judgment in conformity with this opinion.

Affirmed in part, reversed in part and remanded with directions.


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    E. Emil Englund, Administrator, Appellee, v. Mississippi Valley Traction Company et al., Appellants.
    Gen. No. 4,950.
    1. Statute of Limitations—when declaration does not state new cause of action. In an action for death caused by alleged wrongful act, an amended declaration does not state a new cause of action where it adds the name of a next of kin not contained in the original declaration, which, however, averred that the deceased left next of kin.
    2. Franchise—when does not require equipment of cars with fenders. A franchise ordinance in part set forth in this opinion is construed and held not to require a traction company to equip its cars with fenders.
    3. Instructions—upon negligence in failing to use fenders approved. An instruction is approved which told the jury in substance, that if they believed from the evidence that it was negligence for the defendant to run its cars without fenders or lifeguards and that a child was killed because of such negligence and that the parents and custodians of such child were not guilty of negligence in permitting it to be in the street at the time it was killed and that the child left surviving next of kin, as alleged, then the jury should find the defendant guilty.
    4. Instructions—when upon exercise of care by parents misleading. An instruction is misleading which gives the jury to understand that the parents of the child which has been killed could ignore the street car company in permitting such child, which was less than two years of age, to play upon the streets.
    5. Arguments of counsel—when ground for reversal. An argument which is an appeal to sympathy, passion and prejudice is ground for reversal.
    6. Arguments of counsel—power of court to control. It is not only within the power of the court to control the arguments of counsel and keep them within due bounds, but it is the duty of the court so to do.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Rock Island County; the Hon. Wilmam H. Gest, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    Statement by the Court. Maurice Englund, a child under two years of age, was on June 27, 1905, killed by being struck by an electric car operated by the Mississippi Valley Traction Company over the tracks of the Moline, East Mo-line and Watertown Railway Company, interurban electric railways, on Fourth avenue about midway between Ttventyfourtli and Twenty-fifth streets in the city of Moline. E. Emil Englund, as administrator of his deceased child, brought this suit against both railways for the benefit of the next of kin. The suit was tried on four counts of the declaration, which allege negligence of the defendants, in that the car -was run at a dangerous rate of speed in a thickly settled portion of the city; that the car was not equipped with fenders; that an ordinance of the city provided that cars may be run at a maximum rate of speed not exceeding ten miles an hour, but that said car was run at a greater rate of speed; that under said ordinance the car was required to be “of such style and class as are used on the best approved railways in the United States,” that cars on the best approved railroads in the United States are equipped with fenders, and that the car that killed the deceased was not equipped with a fender. Each count alleges that Maurice Englund was of the age of two years, and was in the exercise of due care for one of his tender years, and that the parents and custodians of the deceased were in the exercise of due care wdth reference to his custody and his being upon {lie street. Each count averred that the deceased left surviving him E. Emil Englund, his father, Augusta E. Englund, his mother, Lauritz Englund, his brother, and Myrtle Englund and Elsie Englund, his sisters, as next of kin. On February 21, 1907, upon the trial, by leave of court, each count was amended by adding to the next of kin, “that at the time of the death of said intestate his mother was pregnant with a child which was born July 19, 1905, that is now living, named Arvid Englund.” A demurrer, raising the question that the amended declaration contained the name of Arvid Englund was not filed within the time limited by the statute for the bringing of such an action, was filed and overruled to each count as amended. Pleas of the general issue and of the Statute of Limitations were filed to the amended declaration. A demurrer was sustained to the plea of the Statute of Limitations. The plaintiff recovered a verdict and a judgment for $2,750 from which the defendants prosecute this appeal.
    Searle & Marshall and Cyrus E. Dietz, for appellants.
    J. T. and S. E. ILenworthy and J. B. & J. L. Oakleaf, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

It is insisted that the amendment to the declaration by inserting among the names of the next of kin the name of Arvid Englund set up a new cause of action, and that the court erred in sustaining the demurrer of appellee to appellant’s plea that “the said alleged cause of action set forth in said second amended declaration as amended and each count thereof is other and different from the cause of action set forth in the original declaration, and other and different from the cause of action set forth in the first amended declaration herein, and that said alleged cause of action in said second amended declaration as amended set forth did not accrue to the plaintiff as said administrator for the use and benefit of said Arvie Englund within one year next prior to the filing thereof.” Each count of the declaration alleged that the deceased left surviving him “E. Emil Englund, his father, * * * his next of kin who have sustained damage by the death of said Maurice E. Englund.” The amendment made more than a year after the accident inserted the name of Arvid Englund, the brother born after the death of Maurice F. Englund among the names of the next of kin.

Each count of the declaration as amended within one year of the accident stated a good cause of action against the defendants. The cause of action was in the administrator for the exclusive use of the next of kin. The declaration alleged that the deceased left surviving him next of kin and named some of them, but the name of Arvid was omitted from the list. If a cause of action had not been stated, then the plea of the statute would have been good. If the declaration had failed to state that the deceased left surviving next of kin, a cause of action would not have been stated, because the action is based on the statute, such an action being unknown to the common law. This act was passed in 1853 in substantially the same language that it now remains in the statute; and the question of the proper pleading of an action thereunder has been repeatedly before the courts, commencing with the City of Chicago v. Major, 18 Ill., 349. It has never been held in this State that, if the original declaration within the time mentioned for bringing the action, stated that the deceased left next of kin surviving, it could not be amended after the time had expired by inserting the names of the next of kin. If, however, it did not state that the deceased left next of kin surviving then a cause of action was not stated, and such a declaration could not be amended to avoid the effect of the lapse of the statutory time given for bringing an action. Chicago & R. I. R. R. Co. v. Morris, 26 Ill., 400; Foster v. St. Luke’s Hospital, 191 Ill., 95. In Quincy Coal Co. v. Hood, 77 Ill., 68, the declaration only alleged that the deceased left plaintiff, his father, surviving; the proof showed that there also survived a mother and five brothers and sisters-; the case was reversed with directions for the plaintiff to have leave to amend the declaration. In Chicago City Ry. Co. v. Hackendahl, 188 Ill., 300, the only averment in the declaration in the question in issue was “and the plaintiff avers that as the father and next of kin of said Robert Hackendahl and as administrator, etc., * * * a cause of action had accrued to the plaintiff and heirs of said Robert Hackendahl,” etc. More than two years after the cause of action accrued the declaration was amended by inserting the names of the mother, brother and Sisters. Pleas of not guilty and of the two years’ Statute of Limitations were filed, and to the latter plea the plaintiff demurred. The court sustained the demurrer and the defendant stood by its plea. The Supreme Court there said: “The original declaration did allege, though in an imperfect manner, that the deceased left next of kin surviving him and that the suit was brought for the benefit of such next of kin. It cannot be said that because the cause of action was defectively stated it was not stated at all, and that the amended declaration, filed after the lapse of two years, stated the cause of action for the first time.” The action of the Circuit Court was upheld. Amendments of like effect were held not to be pleading a new cause of action in Grace & Hyde Co. v. Strong, 224 Ill., 630, and in North Chicago St. R. R. Co. v. Aufmann, 221 Ill., 614. The demurrer was properly sustained to the plea of the Statute of Limitations.

It is insisted by the appellants that the trial court improperly admitted in evidence on the part of appellee, the following resolution of the city of Moline: “Alderman Gustafson moved that the Mississippi Valley Traction Company be notified to equip all the street cars with proper fenders, the equipment to be complete within sixty days from date. Carried,” and that the court improperly refused to admit in evidence a resolution thereafter passed suspending the foregoing resolution, and proof of certain negotiations pending between the city and appellants during the time of such suspension. An ordinance of a city can only be passed by the affirmative vote of a majority of the aldermen elect. A resolution may be passed by a majority of the aldermen present. The, resolution of the city council was not proper evidence, for the reason that an ordinance cannot be suspended or modified by anything except- an ordinance. Galt v. City of Chicago, 174 Ill., 605. A city can only legislate by the passage of ordinances in the manner provided by law. The negotiations between the city and appellants with reference to widening the street were not competent evidence in a suit to which the city ivas not a party. People v. Mount, Mayor, 186 Ill., 560; Elgin, Aurora & Southern Traction Co. v. Hench, 132 Ill. App., 535. The objection to the resolution offered in evidence by appellee should have been sustained, but there was no error in sustaining the objection to the resolution and the record of the negotiations offered in evidence by appellants.

The contention of appellee is that section 5 of the ordinance granting a license to appellants to maintain and operate a street railway on certain streets of the city requires that the cars of appellants shall be equipped with fenders. The section is as follows: “Section 5. The cars used upon said railway shall be new and of such style and class as are used upon the best approved street railways in the. United States, and gates and guards shall be placed upon the front platform of all motor cars, so as to prevent passengers from using the same in getting on or off said car. Said motors and cars may be run at a maximum rate of speed not exceeding ten (10) miles per hour in said city.” There is nothing in the ordinance containing any reference to fenders. The ordinance did not add anything to the recognized duty of a street railway in equipping its cars with appliances for the safety of pedestrians. “A street railway company is under a duty to use reasonable care to see that its cars are in proper condition, so that they may be operated without undue damage to the public and to equip its cars with such safety appliances as men of average prudence would use under the circumstances.” 27 Am. & Eng. Encyc. of Law (2d ed.), 61.

Appellants contend that the first, third and fourth instructions given for appellee were erroneous. The first instruction stated that if the jury believe from the evidence that it was negligence for appellants to run its car without fenders or life guards, and that the child was killed because of such negligence, and that the parents and custodians of said child were not guilty of negligence in permitting the child to be in the street at the time it was killed, and that the child left surviving next of kin as alleged, then the jury should find the defendants guilty. This instruction is an accurate statement of the law. The third instruction was an abstract proposition of law and should have been refused. The fourth instruction stated the law to be that the deceased “had an equal right to the use of the avenue that defendants had,” and “the parents of the deceased had the right to allow him to play in the street, subject to the duty resting on them to use such care for his personal safety as an ordinary prudent person would use.” The instruction is misleading in that it gave the jury to understand that the parents could ignore the street car company in permitting this child less than two years of age to play upon -the street. The rights of a street car company and the general traveling public cannot be ignored and practically destroyed by making a street car track a playground for children of the age of the deceased. The only question to be tried by the jury was, were the parents in the exercise of reasonable care for the safety of the child, and was the child killed by the negligence of appellants. North Chicago Electric Ry. Co. v. Peuser, 190 Ill., 67; Chicago Union Traction Co. v. Jacobson, 217 Ill., 404. It was a question for the jury whether the fact of permitting a child of that age to play in a street with a street car track on it was not negligence, and the instruction told the jury the parents had the right- to let it play in such a street. There is a difference between a case where a child of such tender years is injured and sues in its own name, where it cannot be charged with negligence, and a case where the suit is for the benefit of the next of kin who have a duty to care for it, and may be charged with negligence. 7 Ill. Cyc. Dig., 609, and cases cited.

It is also assigned for error that the verdict is excessive, and that counsel for appellee in his closing argument made improper and inflammatory remarks to the jury. The following is a part of the closing address: “Have you got any heart in you? Have you got any blood in you? Are any of you fathers ? Don’t your hearts leap and the blood come to your cheeks with indignation when you hear these two railroad companies, from the mouth of their counsel, charge these parents with being the cause of the death of this child ? * * * I say it is cruel, cruel! If you have got any blood, if you have got any feeling, or any other man within the sound of my voice has got any feeling, his blood will rise in indignation against such a charge. * * You have the same right in this street as the railroad companies. * * * What occasion was there to harrow up her feelings ? What occasion was there to wring her heart and assert that she was the cause of the death of her child ? * * * It does not become this corporation. * * * The day has not come in this country when we have surrendered the exclusive use of the public highways to the railroad companies. * * If it is, why, we had better not have any children,” etc.

Counsel for appellants repeatedly objected to the language used by counsel for appellee, and the court upon one objection being made remarked to counsel to proceed with the argument, and in response to another objection said that the court could not control the language used, and at another, “I would proceed with a discussion of the evidence.” Exceptions were noted to the rulings or refusal to rule of the court. Counsel for appellee continuing, stated to the jury that such objections were one of the tricks of the trade. Counsel for appellee say in reply to this assignment of error that the record does not contain objectionable remarks made, by counsel for appellants. We must pass on the record as we find it. The language in the record is improper, inflammatory and calculated to inflame the passions and prejudice of the jury. It is not an appeal to the reason and unbiased judgment of the jury sitting as a tribunal to consider the evidence and do justice between the parties, but a demand for an indignant and sympathetic vindication in damages, for the injured feelings and sufferings of the bereaved family. While appellants’ counsel did not object to every remark that was inflammatory, he should not be blamed for failing to interpose more objections, when the court ruled that it could not control the language. The rulings of the court were calculated to impress the jury with the feeling that the court considered the language proper, and gave judicial sanction and additional weight to the prejudicial and improper remarks. It is the duty of the court to control counsel within reasonable bounds and to restrict the argument to the evidence in the case. The size of the verdict when it is considered that the child was less than two years of age, an age at which in place of contributing to the support of the family, it would be a burden for its support, maintenance and education for many years upon the next of kin, shows the effect of the improper argument of counsel. Had there been no other error in the case, the improper language used in the argument would be sufficient cause for reversal. For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.