author: Mr. Justice Mack Mr. Presiding Justice Chytraus

text:
    John F. Devine, Administrator, Appellee, v. Kelly-Atkinson Construction Company, Appellant.
    Gen. No. 15,032.
    1. Master and servant—when doctrine of assumed rislc does not apply. If an accident is due to the foreman’s negligence in giving a wrong signal, the doctrine of assumed risk cannot he invoked, inasmuch as the risk of negligence on the part of the master personally, or of his representative, the foreman, not a fellow-servant, is not assumed.
    2. Verdicts—when not excessive. Held, in an action for death caused by wrongful act that a judgment of $3,500 in favor of the mother, brothers and sisters of deceased (a young unmarried man) even if prior thereto he had not supported them but only occasionally sent his mother five or ten dollars, will not be held by a reviewing court to be excessive.
    3. Instructions—when undue emphasis not given to question of damages. Held, that there was no improper reiteration or undue emphasis indulged in by the court in its instructions to the jury upon the question of damages.
    4. Instructions—when refusal as to order of consideration of issues will not reverse. Held, that it was not error in view of the other instructions given in this case, for the court to refuse to give an instruction as follows:
    “The jury are instructed that if under the instructions of the court they find from the evidence in this case that the plaintiff is not entitled -to recover, then they will not have occasion to consider at all the character or amount of the plaintiff’s damages.”
    Chytraus, P. J. dissenting.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed July 15, 1910.
    Dissenting opinion filed July 26, 1910, by Mr. Presiding Justice Chytraus.

      Certiorari denied by Supreme Court (making opinion final).
    Kbemeb & Gbebneield, for appellant.
    Jacob O. LeBosky, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

The deceased was in the employ of defendant as a structural iron worker at the time of his death, assisting in the erection of the iron work used in connection with the track elevation at Fifty-first street. Light beams and cross beams resting on posts were strung across the street. A he'avier facial girder was to be put in position at the extreme east end of the structure; it was lying across the beams and the deceased and a co-worker were on the structure on either side of the girder adjusting the “dogs” which were in the nature of a pair of ice-tongs, to the middle of the girder. The method of putting it in position was to raise if, by the pulley suspended from the tip of the boom, the movable arm of the derrick which itself was on a flat car some twenty feet to the south of the south wall of Fifty-first street, from a" gondola car standing in front of the derrick car, and if for any reason it had to be dropped elsewhere than at its ultimate position, then to take it up again and by swinging the boom to put it in position. The boom was thirty-five to forty feet long. The engine had two drums, operated by steam, from one of which a wire cable to a block in the end of the boom enabled the boom to be raised or lowered at will, independently of the load, and from the other of which a cable running through a pulley in the end of the boopi caused the load to be raised or lowered. While this could be done independently of the boom, both could also be raised or lowered together. As the girder in question was lifted from the gondola car and swung east, the blocking under the car, which prevents listing or upsetting, was seen to be insufficient and for that reason the girder was lowered before it reached its ultimate position, to the panel of open steel structure that was being constructed, and was placed across the beams by the deceased and others. The boom was then swung west to enable the blocking to be readjusted and in doing this, to escape wires, the tip of it was lowered so that when it was swung back to the point above the girder its tip projected north five or six feet. During this time the “dogs” remained attached to the girder and were held in place by the deceased and another man. In order properly to pick up the girder, with the load cable from the tip of the boom to the girder, at plumb and not at an angle from a point five or six feet north of the center of the girder, it was necessary to raise the boom again. Unless this were done, the load would at once swing out on being lifted. Instead of raising the boom, however, the engineer raised the load; the girder swung out; the deceased, in the hope of saving himself from being struck, jumped upon it as is customary, but girder and man slipped to the ground and death ensued. If the engineer, carelessly mistaking the signal given him by the foreman, operated the wrong drum, his negligence, being that of a fellow servant, would be no ground for recovery; if the foreman, however, gave the wrong signal, his negligence would render the defendant liable.

The jury necessarily found that a wrong signal was given. The evidence was in conflict and unless we can say that the evidence clearly does not preponderate in favor of the plaintiff, we should not be justified in reversing the judgment on this ground.

On behalf of plaintiff, one Kiplinger, a railroad switch-man, who at the time was employed by the railroad, handling, the iron and looking after the derrick in question, testified on direct examination that standing northeast of the derrick he saw the men attaching the dogs to the girder and saw the foreman, whose back was toward the men, give a signal to raise the load. He testified further, “That was the signal (illustrating). I had seen those signals given before in that kind of work and when I saw that, the load was raised from where it was standing.” On cross examination he testified that he had never been engaged in or worked at or been around that kind of work prior to the present job; that at the time he was a switchman; his engine was there to handle the derrick and gondola cars and that he had been doing this for something over a month; that the foreman “gave a signal like that (illustrating).”

“Q. Just one hand? A. He didn’t give a signal like that (illustrating) ; just like that (illustrating).

Q. Shook his fist like this? A. Yes.

Q. That is, twisting it? A. Yes, sir.

Q. How many signals are there that they give in work of that kind ? A. I have seen three.

Q. What are they? A. They gave a signal like that (illustrating) to raise the load. If they wanted the boom raised, they gave a signal like that (illustrating). If they wanted to stop, they gave a signal like that (illustrating).

Q. Did you see any other signals given besides those three at any time ? A. Hot this day.

Q. Well, had you at any time while they were engaged there on this work ? A. Only motioning for men, they would motion to each other for help.

Q. Were there any other signals that you observed while you were there which were directions to the engineer ? A. Ho, sir.

Q. Those three are the only ones ? A. Yes.

Q. When did you learn those signals ? A. When I first went to work on the job.

Q. When you first went to work on the job? A. Yes sir.

Q. How did you come to learn them? A. Well, sir, I learned that from watching the men work.

Q. Did you have any particular occasion to know what those signals were? Did you need to know that? A. I could not say that I did, for my part.”

On re-direct he testified that it was half a minute from the time he saw the foreman give the signal that the deceased fell. A second witness, Whitman, who was ten feet away from the place of the accident working in the gondola car, stated that just as the girder started to pick up he heard the superintendent holler and saw the deceased jump for the iron and fall with it. It took less than half a minute. He did not see the signal given. He further testified:

“Q. What is the signal to go ahead with the load, Mr. Whitman? A. Like this (illustrating).

Q. Did you see the signal—

Mr. Greenfield: Can’t we get that signal described and get it in the record ?

Mr. LeBosky: Q. Mr. Whitman, did you see the signal that Mr. Kelplinger gave while he was on the witness stand ?

I did.

Q. In describing the signal Hr. Fornwall gave. A. I did, yes.

Q. How long have you been a structural iron worker? A. About thirteen years.

Q. Are you acquainted with the signals given to the engineers in derrick cars ? A. Yes. *****

Mr. LeBosky: Q. Hów, you just show the signal to go ahead with the load. A. Like this (illustrating).

Mr. Greenfield: I would like that to be described in the record, your Honor, with the fist and thumb up, raising his fist and thumb up and down—

A. Going ahead is like this (illustrating). If a man gives a boom up signal, it is like this (illustrating). You give a twist of your hand. There is a great many men give different signals.

Mr. LeBosky: Q. Well, is the thumb in the air at the time ? A. It is not necessary. His thumb might stick up a little bit.

Q. Is the hand folded at the time ? A. It is not supposed to be.

Q. It can be that way, can it? A. Yes. I seen lots of men give signals that way.

Mr. LeBosky: All right. You may take the witness.

Mr. Greenfield: Q. This motion you give for going ahead with the load is a sort of up and down movement, of the hand, isn’t it ? A. Ho, sir, it is not supposed to be.

Q. This motion you gave, wasn’t it? A. It doesn’t look that way to me; that doesn’t look like an up and down motion by any means (illustrating). If I was giving that up and down motion, it would be this way (illustrating).

Q. The motion you give is not merely a twisting of the wrist ? A. It would be hard to give a signal at that distance for an engineer to understand by twisting the wrist.”

On behalf of defendant, the foreman Fornwall testified:

“Mr. Greenfield: Q. Tell what you did.

A. I gave the signal to boom up, top up his boom,

Q. By top up the boom, what do you mean by that f

A. liaise the end of the boom that is up. t % * * +

Q. Dow, the signal that yon gave to the engineer means what, in yonr code 1 A. It means to raise the boom.

Q. Does it mean anything else ? A. Do, sir.

Q. Dow, what other signals did yon have for raising the load? A. We had this signal for raising the load (illustrating).

Q. A sort of a twist of the wrist? A. Yes; sometimes you get in a position where you can’t give it that way and you go up further here and sometimes you just crack it to him that way (illustrating), if you are in a hurry.

Q. Do you have in your business a regular code of signals that all structural iron men understand ? A. Yes, sir.

Q. Dow, did you, after this boom came around to the east side, ready to be raised in position, again give any signals to the engineer to lift that load ?

Mr. LeBoskey: .1 object to that; it is leading.

The Court: He may answer the question.

The Witness: Do. sir. *****

Q. What does the signal stand for which you gave the engineer that morning to top up that boom? A. That was to raise the boom.

Q. That was to raise the boom? A. Yes; just to raise the boom.”

Burtscher, the superintendent, testified:

“Q. State what you saw ? A. I saw him giving a signal to raise the boom.

Q. Describe the signal to the jury. A. This way, he had his thumb up this way (illustrating).

Q. And that signal means in your code—

A. To raise the boom.

Q. Was it to raise the boom ? A. Yes.

Q. Anything else? Does it mean to do anything else except to raise the boom? A. Dothing else at all.”

On cross examination he testified:

“Q. Dow, if that boom had been raised and the slack had been let fall and that signal had been given there would not have been any danger, would there. A- It aint necessary to give—^

Q. Well, would there have been ? Yes or no.

A. ¡No, there wouldn’t have been any danger.”

This is the entire testimony on the question of signals.

To summarize this evidence: an entirely disinterested witness who in the course of a month, by observation of three signals, had learned their meaning, asserts that he saw the foreman signal: “shook his fist like this, twisting it.” He illustrated each of three signals—one to raise the boom, the other the load and the third to stop, but in the absence of a description of them in the record it is impossible to say just what was done. Any doubt arising from the incompleteness of a bill of exceptions must be resolved against the appellant. The second disinterested and expert witness described the signal to raise the load, according to counsel’s statement of it, as “fist and thumb up, raising his fist and thumb up and down.” A boom up signal, he said involves a twist of the hand, the thumb not necessarily being in the air. The motion to raise the load is not an up and down motion, though it is not merely a twisting of the wrist.

The foreman who, if he gave the wrong signal would be responsible for the death, asserted positively that he gave the signal to raise the boom, not the load, but he agreed with Kiplinger that a twist of the wrist is the signal for raising the load, whilst the superintendent says that he saw him give the signal to raise the boom; “that he had his thumb up” (illustrating).

While Kiplinger’s testimony as to the meaning of each signal would not be as realiable as that of an expert, his testimony as to his own observations of what was actually done would be none the less credible, because he was not fully acquainted with or had failed to observe signals in use other than the three.

On this testimony, or rather on so much of it as is preserved in this record, which contains no description of many of the illustrations, a reviewing court would not, in the judgment of the majority of this court, be justified in finding, contrary to the verdict of the jury confirmed by the trial judge, that the evidence of the foreman and superintendent, positive though it was, preponderated as against that of the switchman, inasmuch as the credibility of these several witnesses was as important an element as their knowledge of signals and powers of observation. Without discussing the evidence thereon in detail, the jury were justified, in our opinion, in finding that the deceased was not guilty of contributory negligence.

If the accident was due to the foreman’s negligence in giving the wrong signal, then the doctrine of assumed risk cannot be invoked, inasmuch as the risk of negligence on the part of the master personally or of his representative, the foreman, not a fellow servant, is not assumed.

During the examination of the superintendent the court sustained an objection to tbe question: “How many different signals are used in this business ?”

The only relevancy of the question would be that stated by counsel, to show that Kiplinger, who had observed only three signals, was deficient in his powers of observation. The question, however, as framed is not directed to the number of signals that were actually used at that time in that particular work, but to the structural iron business generally. We do not, however, deem the ruling such serious error as to justify a reversal, even if the inquiry referred to the signals actually used at that work. The jury knew full well that Kiplinger was not an expert; that he had learned only certain signals; that he did not know how many others were used; but his testimony was clear and positive as to the actual signal given at the time which was entirely different from the one that should have been and that, according to the foreman and superintendent, was in fact given.

Complaint is made of the instruction on the question of damages because of reiteration and also of the amount of the judgment because of an alleged lack of sufficient direct evidence as to pecuniary loss. Judgment of $3,500 in favor of a mother, brothers and sisters, in a death case, even if prior thereto the deceased, a young unmarried man, had not supported them but had only occasionally sent his mother $5 or $10, will not be held by a reviewing court to be excessive. There was, in our judgment, no undue emphasis laid on the subject of the damages.

Though the trial court might well have given defendant’s instruction reading:

“The jury are instructed that if under the instructions of the court they find from the evidence in this case that the plaintiff is not entitled to recover, then they will not have oc- ' casion to consider at all the character or amount of the plaintiff’s damages,”

yet the refusal so to do does not constitute error. The court had carefully and fully charged as to the prerequisites to any recovery and had directed a verdict of not guilty if any one of them was not supported by a preponderance of the evidence ; the jury could not, therefore, have been in any manner misled by the refusal to state that unless there was liability the question of damages need not be considered.

An instruction in one place referred to care exercised by plaintiff instead of the deceased. This was clearly a clerical error and of no importance in the case.

Inasmuch as the count charging negligence in the selection of servants was withdrawn, instructions bearing on the duty in that respect were properly refused.

Finding no reversible error, the judgment is affirmed.

Affirmed.

Mr. Presiding Justice Chytraus

dissenting.

TTnles the foreman gave the wrong signal, the judgment of the trial court is unjust, contrary to law and unwarranted. The crucial question in this case is, therefore, whether the foreman gave the right signal or a wrong one. The foreman gave the engineer the signal either to raise the boom without the load, which signal it was his purpose to give for carrying out the work being done, and, therefore, that may be termed the right signal, or to raise the load, which signal it was not his purpose to give and the giving of which would therefore have been a mistake and a wrong signal under ail the circumstances—not wrong for any reason especially pertaining to or connected with the decedent. Plaintiff’s intestate was at the place he stood, when struck, to prepare the facial beam to be raised and, in that connection, to watch the boom and cable whereby the beam was to be raised. It required but a moment to step over the beam and place himself in absolute safety. The raising of a heavy beam by a boom and cable is not an instantaneous act. Some portion of time is required even before the beam begins to rise.

The question which signal was given is one of fact and the burden of proving that the foreman gave a wrong signal rested upon the plaintiff in the trial court, as it rests upon the plaintiff in this court. Does the evidence on that question preponderate in favor of the plaintiff ? If it does not so preponderate, the judgment of the trial court should be reversed because the trial court overruled the motion for a new trial and, in that respect, erred and because the evidence fails to sustain the judgment.

Notwithstanding what may be thought of the policy of the law upon this subject, it is, under the law of this state, as now existing, the duty of this court and, consequently, of every member thereof, to examine and weigh the evidence upon every material controverted question of fact in a case brought here, where the errors assigned are such as those here assigned. It is our duty, independently of the conclusions of fact arrived at by the jury and the trial judge, to arrive at a conclusion and to determine for ourselves upon such questions of fact, according to the individual judgment and understanding of each of us, upon the evidence adduced, after duly considering and weighing such evidence. Where, upon the evidence, we find that there is fairly room for difference of opinion, we are, of course, not obliged to and should not disregard the fact that there has been a verdict by a jury and a judgment thereupon by a trial judge. In forming a judgment and arriving at conclusions upon questions of fact, it is true the jury and the trial judge have the advantage of seeing the witnesses and observing their conduct and demeanor. We, however, are not without advantages not possessed by the jurors. We have the opportunity of carefully reading the testimony of witnesses, of weighing precisely what they have said and of more deliberately considering the precise meaning of their statements unaffected by the hurry and bustle of the trial and the confusion, frequently occurring in trials, of several persons talking practically at the same time in critical moments.

As to our being required to exercise our independent judgment, the Supreme Court laid down the rule in that respect in Chicago City Railway Company v. Mead, 206 Ill. 174, 181. With reference to the duty entrusted to this court, where error is assigned upon the overruling of a motion for a new trial, it is there said that in considering and deciding upon error so assigned this court must discharge its duty not according to the judgment of others but according to its own judgment. It is further said: “The law commits to the sound judgment of the Appellate Court the question whether the trial court erred in overruling a motion for a new trial on the ground that the verdict is against the weight of the evidence,” and that: “If a verdict and judgment are clearly against the weight of the evidence, a new trial should be awarded by the Appellate Court and the issues submitted to another jury.” In Donelson v. East St. Louis Ry. Co., 235 Ill. 625, 628, it is held that: “If a verdict is manifestly against the weight of the evidence, it is not necessary that it should further -appear that it was not the result of the impartial and honest judgment of the jury, nor that it resulted from prejudice, passion or some improper motive or condition,” and that: “It is not the rule that an appellate court will not reverse the judgment of a trial court where the evidence of- the successful party, when .considered by itself, is clearly sufficient to sustain the verdict.” In Borg v. C., R. I & P. Ry Co., 162 Ill. 348, 355, it was held that the statute conferring power upon the appellate courts in respect to questions of fact “is designed to confer upon the Appellate Court more extended powers than are possessed by the judge of the trial court, and to give to the former court the power, upon a consideration of the facts, to find them different from the finding of the court from which the case is brought.” So much for the power of this court and the duty which flows from the investment of the court with this power.

After as careful a weighing of the evidence as I am capable of making, it appears to me not only that the plaintiff has failed to establish by a preponderance of the evidence that the foreman gave the wrong signal but that the preponderance of the evidence is with the defendant. As stated, the right signal called for the raising of the boom without the load; the wrong signal called for the raising of the boom with the load.

The evidence of the witness Whitman, clearly, does not make for or against either side of the controversy in this respect. There were but three witnesses who testified on the subject whether the foreman gave the right or the wrong signal. The testimony of one of these three, Kiplinger, is to the effect that the foreman gave the wrong signal; this is favorable to the sustaining of the judgment. The testimony of the other two, Fornwall and Burtscher, is to the effect that the foreman gave the right signal; this is against the sustaining of the judgment. A very close consideration of the three witnesses and their testimony, their knowledge of and familiarity with the signals involved, the possibility of their being interested, their intelligence and opportunity of observation and the possibility of mistake or of deliberate falsifying on the one side or the other, is necessary, particularly when, as here, in order to sustain the judgment of the trial court, it must be found that truth lies with the one witness and falsity on the side in favor of which the two witnesses have testified. Everything else being equal, it is unquestionably the duty of a court to find with the greater number. Has the rule that the preponderance lies with the greater number been in anywise overcome here % If so, the means whereby it has been done have escaped me in a close inspection of the record, and the manner in which it has been overcome has in nowise been pointed out. The reason why a judgment should be rendered against the defendant for $3,500, upon such a state of the evidence as that appearing by this record, does not specifically appear, unless it be on the single ground that the jury found that a wrong signal was given.

The witness Eiplinger testified that he was a painter by trade but had been a railroad employe for twenty-three years and that during the last twelve of these twenty-three years he had been a switchman; that he had never worked in the structural iron business and had never been around work of that kind before switching at the place in question; that at the time of the accident he was employed as a railroad switch-man by the Western Indiana Railroad and was one of the switching crew engaged with a locomotive in handling the derrick car and in bringing in car loads of structural iron for the track elevation being done at the place in question and that he had been engaged at that work for something over a month; that while there engaged he observed only three different signals which were given as so many different directions to the engineer and these signals he learned when he “first went to work on the job” by watching the men on the work, not, however, because he had any “particular occasion” to know the signals; that when the accident occurred he stqod northeast of the derrick and saw Colley, the deceased, standing outside of the facial beam or girder which was to be put into position and that on the other side thereof there were two men; that he saw the foreman give the signal to raise the load and he saw the cable tighten gradually “and the minute the load was raised it swung over and knocked this man [Colley] off;” that “some men hollered ‘hang onto the load’ and he grabbed at the iron” and “he kind of hung onto it” “and the hook [somewhat like an ice tong] slipped from the center, or near the center,” of the girder and both the girder and he went into the street; and that when Colley was knocked off he stood back about eight feet from the brink or edge, wherefrom he fell into the street. The witness Whitman, called on behalf of plaintiff, testified that he was about ten feet from where the accident occurred; that he did not see the signal given by the foreman; that the first he observed was the boom raising and the iron start up and then he heard Burtscher calling; and that the width of the space outside of the girder or beam, where Colley stood, was not over a foot or eighteen inches. This witness, as well as other witnesses, contradicted Kiplinger in various respects which, while they did not go to indicate which of the signals was given, tended materially to impeach either his memory or his power of observation, at all events the reliability of his testimony. This witness corroborated Burtscher’s testimony to the effect that he, the latter, had come where he could see the signal given and that he called to Colley. Defendant, in order to contradict and discredit Kiplinger, who testified that he saw but three signals used, both as to his truthfulness and his power of observation, sought to introduce evidence of the number of signals used. This evidence the trial judge excluded. Technically, the ruling in that respect may have been accurate because the precise purport of the question put was as to how many signals were used m the business. The question was too broad and comprehensive. However, in this particular instance it appears to me the interests of justice may have been better subserved by permitting the question put to have been answered or to have informed the examining attorney of the mistake in the question. Answering would undoubtedly have resulted in bringing out the number of signals used during the period Kiplinger had the opportunity of observation.

Kiplinger is in nowise corroborated. My brethren point out in the opinion herein that the foreman agreed with Kip-linger that a twist of the wrist is the signal for raising the load and add: “whilst the superintendent says that he saw him give the signal to raise the boom: ‘that he had his thumb up.’ ” There is no dispute as to what the signals were nor as to their being correctly given by all the witnesses and I see no corroboration of Kiplinger in the fact that the foreman agreed with him as to what the signal for raising the load was, nor do I see the slightest inconsistency between what the superintendent said and what Kiplinger and the foreman had said. When the hand is closed it may be so closed that the thumb is held up and not enclosed by the fingers, and as I understand, by so closing the hand and then twisting the wrist is the way the signal to raise the Loom without the load was given—not by twisting the wrist with the hand open or the fingers enclosing the thumb. In this connection it may be added, as the record shows, that the question put and the actual answer of the superintendent was: “Q. Describe the signal to the jury. A. This way; he had his thumb up this way (illustrating).”

Why, in view of the facts and circumstances of this case, any stress should be laid upon the failure to preserve in the record any description of the illustrations of the signals, as if that circumstance operated, to any extent, to prevent this court finding contrary to the verdict of the jury, I confess I fail totally to comprehend.

Kiplinger’s testimony, all there is in the record to sustain the judgment of the trial court upon any view of this case, I have adverted to. On the other hand, against that evidence and in opposition to sustaining the judgment, I find: The witnesses Eornwall, who was the foreman, and Burtscher, who was the superintendent for the defendant of the work being done, both testified that the right signal was given. Eornwall, whokgave the signal, of course knew whether the right signal was given. Burtscher, who had just come from a different part of the work then being done, testified that he saw Eornwall give the signal to raise the boom and that the signal given meant to raise the boom and nothing else. Burtscher testified also, that when he saw the signal given he called out to Colley to get away from in front of the beam and that he called two or three times. In this he is corroborated by other witnesses and contradicted by none. These witnesses, Fornwall and Burtscher, experienced in the business and familiar with the signs, were not mistaken. They either told the truth or deliberately testified falsely. There is nothing in the record tending to impeach their credibility, unless it be the fact of their being in the employ of the defendant and, as to Eornwall, the further fact that he gave the order to the engineer and that, consequently, as the fault lies either with him or with the engineer, he might want to shift the blame to the engineer. But, on the other hand, is no credit to be given to men who have attained such positions as these men then held ? Will not the slight interest of retaining their employment, as an inducement to commit perjury, be offset by their positions ? While it may not be said that there has been any such successful discrediting or impeachment as to eliminate the testimony of any witness, yet in so far as there has been any discrediting, to any extent, it appears to me to tend to weaken the testimony of the one witness, not the two. It is a question in my mind whether Colley did not fail to exercise reasonable care for his own safety and, furthermore, I fail to see wherein, upon this record, the plaintiff has established his case by a preponderance of the evidence and I am therefore of the opinion that this judgment should be reversed.


source: Caselaw Access Project

author: Mr. Justice Mack

license: Public Domain

text:
    John B. Vesey, Appellant, v. City of Chicago, Appellee.
    Gen. No. 15,038.
    1. Negligence—duty of city with respect to streets. The duty of a city is only to exercise ordinary care to keep its streets and crossings in a reasonably safe condition.
    2. Instructions—when upon obligation of city with respect to its streets erroneous. An instruction upon this subject as follows, is erroneous as in effect acquitting the defendant of negligence charged:
    “The court instructs the jury that the city of Chicago, under the law, is not bound to build its sidewalks or crosswalks or streets of the same height or uniformly level, and if a jury believe from a preponderance of the evidence in this case that the accident in question was caused by the plaintiff stumbling against the rail, and if you further find from a preponderance of the evidence that the street and crosswalk was not defective, as alleged, at the time and place in question, then you should find the defendant not guilty.”
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed July 15, 1910.
    Rehearing denied July 26, 1910.
    Castle, Williams, Long & Castle, for appellant.

      Edward J. Brundage and John R. Caverly, for appellee; Edward C. Fitch, of counsel.
   Mr. Justice Mack

delivered the opinion of the court.

On February 2, 1897, between 7 and 8 P. M. plaintiff, walking south on the east side of Stony Island avenue across Seventy-first street, struck the north rail of the Illinois Central tracks which run on Seventy-first street, fell and received severe injuries. One judgment recovered by him against the city was reversed in this court, 105 Ill. App. 191. The verdict of a second jury against him was set aside; od the verdict of the third jury against him judgment was entered. The case is now before us on an appeal from that judgment.

The facts as stated in 105 Ill. App. 191, and as they appear again in this record are as follows:

“ * * * Stony Island avenue crosses Seventy-first street. At the point of crossing this avenue is 200 feet wide, and runs north and south; Seventy-first street extends east and west. The Illinois Central Railroad, with double tracks, occupies Seventy-first street at this crossing. On the west side of the avenue there was a good walk made of brick, across Seventy-first street from the north to the south edge of Seventy-first street, except between the north and south rails of the Illinois Central tracks, between which there was a good plank sidewalk, practically level with the rails of the track.

On the east side of Stony Island avenue, north of Seventy-first street, was a twelve-foot plank sidewalk to the north side of Seventy-first street, and from this walk two or three planks had been laid on the ground extending into Seventy-first street toward the rails of the Illinois Central tracks. At the time of the accident the north ends of these planks, that is, the ends next to the sidewalk, were two or three inches below the plank sidewalk, and could barely be seen. The rest of the planks, that is, the portion extending south, where teams going along Seventy-first street, close to the Illinois Central tracks, crossed the planks, were covered with sand and dirt, and lower than at the ends next the plank sidewalk. The north ends of the ties of the Illinois Central were not covered, and projected up above the ground several inches, and the rail on these ties, being about four inches high, made an obstruction to a person passing along on Stony Island avenue, across Seventy-first street, several inches high. Between the railroad tracks were cinder paths. The nearest light at the time of the accident was the electric light 200 feet across the street, of the Illinois Central platform. There was no other light except a street light a block or more away. Mr. Vesey stumbled over the north rail of the Illinois Central track, plunged forward, and fell, striking his knee on the edge of the other rail.”

The main questions in the case are: 1st, Was the city guilty of negligence in knowingly permitting the street at this crossing to be in its then condition, specifically in permitting the ties to project several inches above the ground and the rails four inches more above the ties, thus forming an obstruction. 2nd, Was the plaintiff guilty of contributory negligence. If the first question is answered in the negative or the second in the affirmative, there can be no recovery.

We are unable to say that the evidence preponderates so clearly in favor of the defendant on either of these questions or in favor of the plaintiff on both of them as to justify this court either in reversing without remanding or in affirming, notwithstanding errors in instructions.

The duty of the city is only to exercise ordinary care to keep the streets and crossings in a reasonably safe condition and therefore there was no error in refusing an instruction that omitted the clause “to exercise ordinary care.” Whether under all of the circumstances such care was exercised was essentially a question for the jury, under clear and proper instructions.

Appellant complains particularly of the fifth instruction as follows:

“The court instructs the jury that the City of Chicago, under the law, is not bound to build its sidewalks or crosswalks or streets of the same height or uniformly level, and if the jury believe from a preponderance of the evidence in this case that the accident in question was caused by the plaintiff stumbling against the rail, and if you further find from the preponderance of the evidence that the street and crosswalk was not defective, as alleged, at the time and place in question, then you should find the defendant, City of Chicago, not guilty.”

The court had already instructed the jury that “the city is not bound to pave 71st street and the mere fact that it was not paved should not be considered as an act of negligence.”

The first part of this fifth instruction is, in our judgment, extremely misleading as applied to this case.' It states a correct principle of law, but, coupled with the second part, its natural meaning was that the city could permit the ties and rails to be in their then position because crosswalks need not be uniformly level. Under this interpretation, the court itself acquitted the defendant of any negligence in this respect.

Moreover, the question was not primarily whether the street and crosswalk were “defective,” but whether they were in a reasonably safe condition. An obstruction may justify finding that they were not in such a condition, but it would not be, strictly speaking, a “defect,” and it clearly would not be a defect in construction. As the first part of this instruction referred to the city’s duty in building a street or crosswalk, the use of the word “defective” in the last part would fairly mean “defective in construction;” otherwise the two parts would have no relation to one another. Under this interpretation the jury were directed to return a verdict for defendant, if they found that the-crosswalk had not been defectively constructed, or perhaps if in addition the construction had not been allowed to become defective. Such a direction omitting a vital element in the case, the obstruction, was clearly erroneous.

After two verdicts against him, following a reversal of the one verdict obtained by him, a reviewing court should hesitate again to reverse the judgment because of errors in the instructions. The plaintiff, however, has suffered severe injuries; he is justly entitled to have his case presented to a jury, free from material error; in our judgment this right has been denied to him and the judgment must therefore he reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Smith

text:
    Herman Lauterjung, Executor, v. Chicago Title and Trustee Company, Trustee et al., on Appeal of Grace C. Touhy et al., Appellants, v. Chicago Title and Trust Company, Trustee, et al., Appellees.
    Gen. No. 15,105.
    1. Foreclosure—when averments of bill sufficient to confer jurisdiction. If a stipulation' in a mortgage or trust deed provides that the whole indebtedness secured may be declared due by the mortgagee or legal holder of the notes upon default in payment of interest or taxes, the stipulation or provision is valid and the filing of a bill to foreclose upon such default is an election to declare the whole indebtedness due, and no notice of such election or other evidence thereof is necessary, in the absence of any provision in the mortgage or trust deed requiring such notice. Held, that the facts alleged in the bill in this case and shown by the evidence, show appellee’s right to declare the principal sum due.
    2. Amendments and jeofails—preswmption as to compliance with rules of court. The rule or rules of the Circuit Court requiring notice to be given of a motion for leave to amend a bill or other pleading not having been introduced in evidence, or incorporated in the certificate of evidence, the Appellate Court cannot take notice of them and must presume that the same were complied with and that the proceedings were regular,
    3. Masters in chancery-—effect of failing to file objections. If no objection or exception to a master’s report is made upon which to base an assignment of error, the point covered by such an assignment of error is deemed waived.
    4. Masters in chancery—when allowance of solicitor’s fees mil not be disturbed. Notwithstanding the Appellate Court may consider an allowance for solicitor’s fees in a foreclosure suit liberal, it will not set aside the same unless it appears to have been manifestly against the evidence.
    Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed July 15, 1910.
    Statement by the Court. On February 27, 1906, appellant, Grace C. Touhy, executed and delivered her promissory note for the principal sum of $4,000, payable to the order of herself five years after date, with interest until maturity at the rate of six per cent, per annum, the interest payable semi-annually on February 27th and August 27th in. each year. The several instalments of interest were further evidenced by ten interest notes of the same date as the principal note, and each of the interest notes was signed by Grace O. Touhy and made payable to her order. All the notes were endorsed by Grace O. Touhy and were also endorsed before delivery by S. Rogers Touhy and provided for interest at the rate of seven per cent, after maturity. The notes were all made payable “at such banking house in the City of Chicago, in the State of Illinois, as the holder or holders of the principal note hereinafter mentioned may from time to time in writing appoint, and in default of such appointment, then at the office of William O. Fricke in said City of Chicago.” These notes were secured by a trust deed conveying premises in Cook county described in the bill of complaint filed October 9, 1907, by Herman Lauterjung, as executor of the last will of Johanna Knoke, deceased, appellee, against Grace C. Touhy, S. Rogers Touhy, appellants, and others to foreclose the trust deed.
    Johanna Knoke, in her lifetime, became the owner of the notes and trust deed. She died on or about June 10, 1907, testate, and by her will named the complainant, appellee, as executor. The complainant qualified as such executor, and was at the time of the filing of the bill the legal holder of the principal and interest notes.
    The interest note maturing August 27, 1907, fell due and was not paid. Appellee requested the payment of the note of S. Rogers Touhy, appellant, and at his request agreed to wait until October 1, 1907, and allow the note to remain in the office of E. R. Haase & Co., who had succeeded to the business of William C. Fricke. Appellants failed to pay the note on October 1 and it remained in the office of E. B. Haase & Co. until October 4, 1907, when appellee took the note from that office, and having upon investigation discovered that the taxes levied on the premises in question for the year 1905 had not been paid and the property had been sold therefor, and that the taxes for 1906 had not been paid, appellee redeemed the premises from the tax sale, and instructed his attorneys to foreclose the trust deed. Thereupon the bill in this case was filed.
    The Chicago Title & Trust Company, trustee, and Carl Steinhoff were made defendants in the bill and were defaulted for want of answer. Appellants filed a joint and several answer, and appellee replied thereto. The cause was referred to a master in chancery to take proofs and report the same with his opinion on the law and the evidence. The master took the evidence offered by the .parties, and upon consideration of the same reported it to the court, recommending a decree of foreclosure and sale of the property described in the trust deed. This appeal is prosecuted to reverse the decree.
    William B. Chamberlain, for appellants.
    Johnson & Molthrop, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

In the very elaborate brief and argument filed on behalf of appellants the fourteen errors assigned on the record are discussed under fifteen different heads or propositions. Manifestly we cannot discuss each proposition separately without extending this opinion beyond all reasonable bounds. We shall discuss only such of the propositions advanced as we deem necessary under the law and the evidence, and briefly state our conclusions upon the material points involved.

In our opinion the averments of the bill as amended are sufficient to give the court jurisdiction of the subject-matter involved. It has been held that when a stipulation in a mortgage or trust deed provides that the whole indebtedness secured may be declared due by the mortgagee or legal holder of the notes, upon default in payment of interest or taxes, the stipulation or provision is valid; and the filing of a bill to foreclose upon such default is an election to declare the whole indebtedness due, and no notice of such election or other evidence thereof is necessary, in the absence of any provision in the mortgage or trust deed requiring such notice. Brown v. McKay, 151 Ill. 315; Curran v. Houston, 201 id. 442; Holdroff v. Remlee, 105 Ill. App. 671. The facts alleged in the bill and shown by the evidence show, appellee’s right to declare the principal sum due.

The rule or rules of the Circuit Court requiring notice to be given of a motion for leave to amend a bill or other pleading not having been introduced in evidence, or incorporated in the certificate of evidence, this court cannot take notice of them and must presume that the rules of court were complied with and the proceedings regular. Grubb v. Crane, 4 Scam. 153; Bartling v. Thielman, 183 Ill. 88.

The preponderance of the evidence shows that appellee, after the maturity of the interest note falling due August 27, 1907, agreed to wait for payment thereof until October 1st following, at the request of appellant S. Rogers Touhy, and to leave the note at the office of E. R. Haase & Co. who had succeeded to the business of William C. Fricke, for payment until that date; and that appellee allowed the note to remain in the office of E. R. Haase & Co. until October 4, 1907, on which day, the note not having been paid, he took it from that office and finding that default had also been made in the payment of taxes levied upon the property, directed his solicitor to foreclose. Hpon these facts and under the provisions of the trust deed, appellee had a right to foreclose for the full amount of the principal no'te and interest thereon, and the tender made by appellants was insufficient, and although it was kept good by appellants, it did not amount to a satisfaction of the debt or preclude a declaration of forfeiture, or bar complainant’s right to foreclose, or relieve appellants from the costs. Fuller v. Brown, 167 Ill. 293; Sweetland v. Tuthill, 54 id. 215; Brand v. Kleinecke, 77 Ill. App. 269.

The decree provides that the defendants pay the amounts therein specified, being the amount due the complainant for the debt, with interest thereon from January 18, 1908, together with $400 solicitor’s fees, $89.25 stenographer’s fees, and $252.50 master’s fees, and that in default thereof the premises be sold, and that in case any deficiency is shown the complainant shall be entitled to execution against the defendants, S. Rogers Touhy and Grace C. Touhy, for the amount of the deficiency. The second assignment of error is: “The court below erred in further sustaining the fourth finding of the master in chancery, for the reason that no notice of the dishonor of the note offered in evidence was given to either the maker or endorser thereof.”

The fourth finding of the master is: “4th. I further find from the evidence that the interest note offered in evidence and marked ‘Complainant’s Exhibit C 1,1 and due August 27, 1907, being for the sum of $120, has not been paid; that the amount due on said interest note is $120, together with interest thereon to January 18, 1908, being for the sum of $3.26.”

Upon this assignment of error counsel for appellants argues that “in order to hold an endorser of a negotiable instrument personally liable, where the same is alleged to be endorsed by non-payment, notice of such alleged dishonor must be given said endorser except when such notice is waived either by him or by the instrument itself.” Counsel says in his brief that this legal proposition is based on the second assignment of error.

While we think the decree is erroneous in holding the appellant, S. Rogers Touhy, personally liable for the debt on the allegation of the bill and the proof, we do not think the question is properly raised on the assignment of error. The finding of the master is simply to the effect that the interest pote has not been paid and the amount due thereon. This does not involve the question of the personal liability of the endorser. ¡No objection or exception to the master’s report was made upon which to base the assignment of error, and the point is therefore waived. Dolese v. McDougall, 182 Ill. 486; Davis v. Upham & Stone, 191 id. 372; Whalen v. Stephens, 193 id. 121; St. Louis Natl. Stock Yards v. Himrod & Co., 88 id. 410; Shaffner v. Appleman, 170 id. 281; Cheltenham Imp. Co. v. Whitehead, 128 id. 279.

We think the allowance of $400 for solicitor’s fees is liberal, and while, as was said in Casler v. Byers, 129 Ill. 657, at page 670 of the opinion, “we might have been better satisfied with the decree if a smaller fee had been fixed therein, yet we cannot say that under the evidence the findings in that behalf were manifestly erroneous,” so as to justify a reversal on that ground.

Finding no reversible error in the record, the decree is affirmed.

Affirmed.


text:
    Pringle & Brodie Machinery Company, Appellee, v. Grand Trunk Western Railway Company, Appellant.
    Gen. No. 15,111.

      Vebdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifest; ly so.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. E. E. Newlin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed July 15, 1910.
    Gr. W. Kretzinger, Jr., for appellant.
    George W, Woodbury, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This action was brought before a justice of the peace for damages sustained by the plaintiff, appellee, by reason of the negligence of the servants of the defendant, appellant, in unloading a machine belonging to appellee from a wagon into a freight depot of appellant.

On appeal to the Circuit Court a jury was waived, and the cause was tried before the court, resulting in a finding and judgment in favor of the plaintiff for $83.68, to reverse which this appeal is prosecuted.

Uo propositions to be held as law were submitted to the court. The case seems to have been tried without much regard to the rules of evidence, and we find no assignment of error on the rulings of the court on evidence.

In our opinion the evidence tends to show that when goods were delivered to the defendant at its freight depot the servants of the defendant assisted the driver of the wagon in unloading the same into the depot of the defendant. The plaintiff sent a machine to the defendant’s depot weighing from 700 to 1200 pounds to be shipped over the defendant’s road. The machine was sent to defendant’s depot in an express wagon capable of carrying 4000 pounds. The wagon with the machine in it was backed up to defendant’s freight house, and the servants of the defendant, in endeavoring to pry up one side of the machine for the purpose of putting under it rollers in order to roll the machine off the wagon, tipped over the machine and it fell out of the wagon to the ground and was broken. The driver was standing in the front end of the wagon in his proper place ready to assist in pushing the machine off the wagon after the rollers had been placed under it. The evidence, we think, sustains the action and the right to recover against the defendant for the damages occasioned to the machine by the careless and improper handling by the defendant’s servants. The amount of damages found by the court, $83.68, is not excessive. The judgment is therefore affirmed.

Affirmed,


author: Mr. Presiding Justice Higbee

text:
    John Beaird, Jr., Appellee, v. New Jersey Plate Glass Company, Appellant.
    1. Insurance—what will not defeat recovery under burglary policy. While the manner of keeping accounts may be crude and informal, yet if the statements therein contained are accurate and will show the amount of money actually kept in a safe and from them a loss occasioned by burglary ascertained, a provision of the policy insuring against a loss by burglary is complied with which is to the effect that the company shall not be liable if the accounts of the assured are not so kept that the actual loss might be determined therefrom.
    2. Insurance—what not covered by burglary policy. A policy insuring against loss by burglary which covers money in current use in the business of the insured, does not by reasonable construction include or refer to money derived by the insured from gambling transactions.
    Assumpsit. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed August 5, 1910.
    Barclay, Fauntleroy & Cullen and D. J. Sullivan, for appellant.
    Wise, Keefe & Wheeler, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit brought by appellee to recover $2,000 on a casualty insurance policy issued by appellant, on account of the loss of certain moneys amounting to more than the sum named, alleged to have been feloniously abstracted from his safe in East St. Louis, Illinois, on January 2, 1909. There were two counts in the declaration. The first charged that on October 19, 1908, appellant issued a policy of burglary insurance to appellee, to indemnify him, to the amount of $2,000, for all loss of money, in current use, in consequence of the felonious abstraction of the same from a certain safe, located in the office or store room occupied by appellee, by entry therein by the use of tools or explosives directly thereon, for the term of one year; that afterwards entry was made into the safe by the use of tools or explosives directly thereon by some person or persons, who feloniously abstracted therefrom the sum of $2,582.25, which belonged to appellee and was in current use. The second count set out the policy in haec verbaincluding certain special agreements to a schedule attached thereto. These agreements provided, among other things, that appellant should not be liable for the loss of money unless it belonged solely to the assured nor unless such money should have been feloniously abstracted from the burglar proof part of the safe, after entry therein had been gained by the use of tools ór explosives, directly upon said burglar proof part as well as upon the fire proof part of said safe; that there could be no recovery if the accounts of the assured were not so kept that the actual loss might be determined therefrom; that the term burglar proof as applied in the policy to the safe or part of the safe, should be understood to mean such a safe or such part of the safe, as was constructed of steel and was designed by the safe manufacturers to furnish protection against burglars and by them styled “burglar proof.” In the schedule included in the policy the business carried on on the premises of appellee, is stated to be “saloon” and the insurance is said to attach in the amount of $2,000 to money, negotiable securities and uncanceled United States Government post office and revenue stamps in current use in burglar proof safe or in burglar proof part of fire and burglar proof safe.

Appellant filed a plea of the general issue and also a special plea, alleging- noncompliance on the part of appellee with that provision of the policy which provided that there could be no recovery if the accounts of the assured were not so kept that the actual loss might be accurately determined therefrom. Appellee replied double; the first replication stating that the omission to keep books was not done for the purpose of defrauding the defendant and the second that appellee’s business was a cash business which did not require any books to be kept; that what he received was paid him in cash daily and there was no necessity or object in keeping accounts and books.

The trial resulted in a verdict and judgment for $2000, the amount of the policy, for appellee.

The proof showed that appellee was a partner with Ales Smith in the saloon business, conducted in a room located on Broadway in East St. Louis. The business was carried on under the name of Alex Smith & Company, but appellee claimed that he guaranteed everything and saw that everything was paid and by some arrangement with Smith, he was entitled to all the income from the business. The safe in question stood in the front of the room occupied by the saloon, between two doors. In the back part of the room was a door leading into another room which was used by appellee as a gambling room, where he had in his employ two or more men engaged in conducting games of chance on a per cent. According to his testimony it appeared that the daily receipts of the saloon business were put in an envelope and then placed in the safe; that he and his partner kept a sheet of foolscap paper on which they marked down every day what the saloon received and this was also placed in the safe; that on the night before the burglary is claimed to have taken place, money amounting to something over $600 was put in an envelope and this sum, together with the memorandum on the foolscap paper, was taken from the safe;.that the amounts taken in at the gambling room on the same night were placed in two boxes, one of which contained $738.75 and the other $1089, these sums apparently representing the amounts taken in respectively by two different men in appellee’s employ. At about 2 o’clock the next morning Smith who with his family lived over the saloon, locked the saloon doors and went up stairs. He claims to have heard no sound in the saloon during the night, but in the morning when the saloon doors were opened, it was found that the safe had been broken into. The envelope in which the saloon money was kept was found on the saloon floor and its contents were gone. The tin boxes in which the gaming money was kept, were afterwards found across the street, empty. There was evidence tending to show that both safe doors had been forced open by violence, tools and probably explosives having been used.

Appellant contends that several of the conditions of the policy above referred to were broken or not complied with, and that, therefore, appellee was not entitled to recover, but the only claimed breach of condition sought to be taken advantage of by appellant by special pleas, is that which states that the company should not be liable if the accounts of the assured were not so kept that the actual loss might be determined therefrom. It appeal's that appellee and his partner kept a little book showing the amount of money received from the gambling room and contained in the boxes at the close of each day, and also a sheet of paper, upon which was marked down the amount of the saloon receipts for each day, which was placed in an envelope, both of which appear to have been in the safe and were lost at the time the money was taken.

While the manner of keeping the accounts was rather crude and informal, yet if the statements contained therein were accurate they would show the amounts actually in the safe and from them the loss might be correctly determined. We would not therefore feel justified in holding that there was such a failure to comply with that requirement of the policy as to justify us in setting aside the judgment on that account There is however a reason why this judgment should not be permitted to stand. The schedule included in the policy stated that appellee was in the saloon business. The policy only undertook to indemnify him for all loss of money in current use placed in the safe. In his declaration he states that by the terms of the policy appellant agreed that “it would indemnify the plaintiff for all loss of money in current use in consequence of the felonious abstraction of the same during the day or night, from the safe or safes, by the entry therein by use of tools,” etc. As appellee was described in the policy as being engaged in the saloon business, it must have been contemplated by both parties that the “money in current use” referred to, must have been money used in the saloon business. Had appellee been also engaged in the banking business, receiving the deposits of his customers, it cannot be contended that if such deposits were placed in the saloon safe and the safe was afterwards burglarized and such moneys taken therefrom, appellee could recover upon this policy of insurance. The greater portion of the money placed in the safe and claimed to have been lost by the burglary, was money derived by appellee from the profits of his gambling room. The gambling was carried on in a separate room and its transactions were wholly distinct from the operation of the saloon.

We are therefore of opinion that the money in current use referred to in the policy, means only the money in current use in appellee’s business as described in the policy, which was the saloon business and could not by any reasonable construction be said to include or refer to money derived by appellee from his gambling transactions.

The judgment of the court below was therefore erroneous and the same will be reversed and the cause remanded.

Reversed and remanded.


text:
    Anna Deppe, Administratrix, Appellee, v. Mobile & Ohio Railroad Company, Appellant.

      Verdicts—when set aside and finding of facts entered. If the evidence shows that no cause of action exists in favor of the plaintiff, the verdict will be set aside and finding of facts entered against the plaintiff.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Perry county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed.
    Opinion filed August 5, 1910.
    Lansden & Lansden and I. R. Spillman, for appellant.
    Webb & Webb and A. R. Dry, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

On October 2, 1908, Burbon Deppe, employed in loading coal, as a car trimmer, by the Willis Coal and Mining Company, was crushed between two coal cars on appellant’s railroad at Willisville ,in Perry county, Illinois, and injured so severely that death ensued. Appellee, his wife, was appointed administratrix of his estate, and brought this suit to recover damages alleging that the death of her husband was caused by the negligence of appellant.

The first trial resulted in a verdict for $2000 which was set aside by the court. On the second trial a verdict of $1J50 was sustained by the court and judgment for that amount entered against appellant.

The only question raised by appellant and presented to this court is, whether plaintiff is entitled to recover under the facts in the case. As it appears from the proofs, appellant’s road passed the mine of said mining company at Willis-ville in a northwesterly and southeasterly direction. At the tipple where the cars were loaded, there was a main track and east of it, three side tracks, the latter being numbered 1, 2 and 3, commencing with the one next to the main track. The side tracks were about 400 feet in length with a down grade from the south towards the north, so that the cars when started would move along’ them towards the north by gravity, and the tipple was located about midway between the ends thereof. The side tracks were connected with the main track and between tracks 1 and 2, there were cross-over tracks, one south and one north of the tipple. At the time of the injury a man named Green and deceased were working, and to some extent were associated, as top men at the tipple. It was the duty of Green, who was called a “car pincher,” to start the cars with a pinch bar from the south end of the side tracks and run them down to the chute where Deppe loaded and trimmed them and afterwards let them further down on the side tracks, from whence they were subsequently taken and hauled away by appellant. On the day in question, about four o’clock in the afternoon, which was near quitting time, Deppe moved a loaded car down track Ho. 1 and onto the cross-over leading to'Ho. 2. At a point just beyond the place where the cross-over left track Ho. 1 was a post called a clearance post, its purpose being to indicate that when cars were beyond it on the cross-over, track Ho. 1 was clear. When deceased set said car on the crossover the back end had not yet passed this post, although there was plenty of room on the cross-over to set it beyond and thus fully clear track Ho. 1. After this car was set in, deceased got on to another car and when it was loaded, started it down toward the car on the cross-over, which was about 130 feet from the tipple. The car was going about as fast as a person would ordinarily walk and Deppe was standing in the northeast corner of it, trying to work the brake which he was unable to do. As he could not set the brake the car proceeded on its way and the northeast corner of it, or the side of the car near that point, struck the southeast corner of the car on the cross-over and deceased was crushed between the two cars and killed.

There were two witnesses who saw the injury, one of whom thought Deppe jumped from the car he was on to the other car and attempted to set a brake there before he fell, while the other was sure he did not attempt to leave the car he was on. After the injury it was discovered that the brake on the car deceased was riding, was bent so that it would not work and that its condition was such as to be readily discovered by one examining the same.

The first declaration filed, charged that the defective brake was on the car standing on the cross-over and that as deceased came down on the other car it struck the car on the cross-over and started it; that he jumped from the car he was on to the' one on the cross-over to stop it and while attempting to use the brake, he was by reason of its defective condition, caught between the two cars and killed.

The amended declaration charged the defective brake as being on the other car, which was in accordance with the proof; that appellant had in its employ a car inspector, whose duty it was to inspect the braking apparatus, and attachments of cars furnished the mining company and that he negligently failed to make such examination and inspection of the car in question here, that deceased was using due care for his own safety while moving that car and was without any prior knowledge of the defective condition of the brake. There was evidence tending to show that the car on the cross-over belonged to appellant, and the one with the defective brake was a Warrior and Southern railroad car, and there was also evidence tending to show the position of the car was exactly the reverse.

The proof showed that it was not one of the duties of appellant’s car inspector to inspect the brakes of the cars but that it was his duty to see that cars were safe to load and to run on the main line; that he did not mark or indicate cars with defective brakes only; .that the coal company often received cars with defective brakes and that its top men had certain specific instructions and duties in reference to the same; that it was the duty of Green to examine the brakes and if he found them in bad condition to notify Deppe; that it was the duty of Deppe to see if cars loaded by him had defective brakes and if he found a defective brake he was to run the car' to which it was attached, down the track and stop it with blocks a couple of car lengths from the chute and wait until he had a car with a good brake to fasten it to, so that the two could be let down together. Green testified that he discovered the brake was defective and told Deppe of its condition, and that “he said it was near quitting 'time and it was only a short distance to the other car and if they did bump a little hard it wouldn’t hurt anything; he said I will ride it out and do what I can with it.” Another witness produced by appellee, however, testified that he heard Green make a statement while Deppe was being removed from between the cars, in conflict with that made by him on the trial as above stated and which tended to impeach Green’s testimony upon that subject. If the testimony of Green in that regard was true, Deppe of course was fully advised of the condition of the car when he started and took upon himself the risk of running it down. But whether the testimony of Green was. correct or not we do not consider of material importance in determining this case, as it was the duty of deceased himself to examine the brake and not to run the car down the track if he found it defective, and it appeared from the evidence that the defective condition of the brake would have been readily discovered had he examined it.

It further clearly appeared from the evidence that the deceased was negligent in not setting the first car far enough in on the cross-over track to be entirely clear of any car passing down track No. 1, as the second car was expected to do. The clearance post notified him where the line of safety was and there was nothing to prevent him from placing a car entirely beyond that post.

It is claimed by appellee, as a result of over loading, the corners of each car bulged out a distance of five or six inches and also that the side of the car on which Deppe was riding bulged out above the beam or bottom part and that this condition of the cars caused them to strike together. Even if this bulging condition of the beds of the cars were clearly shown it could not excuse deceased for taking the risk he did in leaving the first car so near track No. 1.

We conclude from such portions of the proof as were uncontradicted that deceased was guilty of negligence in starting car No. 2 down the track, either without examination of the brake which it was his duty to make, or with knowledge of the same; and also that he was guilty of further negligence in failing to place car Ho. 1 far enough on the cross-over track to be entirely clear of cars proceeding down track Ho. 1 and that these acts of negligence on the part of deceased, contributed to bring about the injuries which caused his death.

The judgment of the court below will accordingly be reversed.

Reversed.

Finding of acts to be incorporated in the judgment: We find that a1f the time Burbon Deppe, appellee’s intestate, received the injuries which resulted in his death, he was not in the exercise of due care for his own safety; and that he committed acts of negligence which materially contributed to causing his injuries and consequent death.


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    Dorris Lumber Company, Appellant, v. James Cummins et al., Appellees.
    1. Debtor and creditor—application of payments. “It is not necessary that the appropriation of the payment should be made by an express declaration of the debtor; for if his intention and purpose can be clearly gathered from the circumstances of the case, the creditor is bound by it.”
    2. Debtor and creditor—application of payments. If there aré circumstances which would render it unreasonable or unjust to the debtor to permit the creditor to apply the payment to whatever debt he pleases, the court will not permit it to be done.
    Mechanics lien. Appeal from the Circuit Court of Saline county; the Hon. W. W. Duncan, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed August 5, 1910.
    J. B. Lewis and W. F. Soott, for appellant.
    Whitley & Somers, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

In the summer of 1907, Josephine Cummins, as it appears from the proofs in this case, entered into a contract with appellee, W. M. Lane, by which the latter was to furnish the material and erect a house on premises owned by her in Saline county, Illinois. The price agreed upon was $1,625 which was to be paid as the work progressed. In pursuance of the contract Lane arranged with the Dorris Lumber Company, appellant, to furnish the material. Appellant’s bill for material so furnished, amounted to $878.98, upon which there was an agreed credit for money paid and material returned, of $219.56, leaving a balance claimed by appellant to be due, of 659.42. Of this amount $259.42 is admitted by appellees to be due, but it is claimed by them that the account should have been credited with the proceeds of a check for $400 given by Lane to Hugh Dorris, the manager of appellant, on July 16, 1907. Appellant, on December 21, 1907, served notice of its claim for lien and afterwards filed its petition in this suit against James Cummins and Josephine Cummins, to foreclose its lien as a subcontractor. Later an amended petition was filed which stated among other things, that Josephine Cummins had died since the commencement of the suit, but that before her death she had conveyed said real estate to her husband, said James Cummins, and making W. M. Lane a defendant to the petition.

James Cummins made a tender of the amount of $259.42, which he admitted to be due, and the only question between said James Cummins and appellant in the court helow, was whether or not the proceeds of the check for $400 above mentioned, should have been credited to the Cummins account. That court found that Cummins was entitled to the credit claimed by him and the correctness of such finding is challenged by appellant on appeal to -this court. Lane, who is a contractor and builder, appears to have had a number of building contracts on hand at the same time. He was bnying building material used in these contracts from appellant and a separate account was kept with him, for the material furnished, upon each job, so -that money paid and material returned, could be properly credited. The $400 in question when paid by Lane to appellant’s manager, was not credited upon the account of Cummins but wás distributed among certain other of the accounts which Lane was running with appellant.

It clearly appears from the evidence that Lane was enabled to make the payment in question to appellant, by reason of the fact that Cummins had just paid him $500 on his contract, but appellant claims the right to distribute the payment among the other accounts of Lane upon the ground that the latter, when he made the payment, gave no directions as to its application. The testimony on the part of appellees is to the effect, that on July 16, 1901, Cummins met Dorris, who asked concerning Lane’s financial affairs and the payment of money to him; that Cummins said he was going to pay Lane $500, as the latter wanted some money to pay appellant and finish paying the hands at work on the building; that shortly afterwards Cummins met Lane, went with him to the bank and gave him a check for $500; that when they came out they met Hugh Dorris, and Lane and Dorris went back into the hank together; that about a week afterwards Cummins again met Dorris and asked him how much Lane paid him and he said $400; that Cummins then said “How much does- that make on my lumber bill?” and Dorris replied, “Don’t know, I turned it over to • the bookkeeper;” that Lane had told Dorris he would get some money from Cummins and give it to him and when they were together in the bank, Lane told him that Cummins had paid him some and gave him $400. Dorris admitted getting the $400 check from Lane, but denied that he received it at the time and place claimed hy appellees and stated that, at the time he received it, no direction was given him whatever by Lane as to the application to be made of it; Dorris also testified that he told Cummins when the latter spoke to him about the $400 or $500 payment he had made to Lane, “that if he had not got all the credits he had made he would get them.” The money paid was turned over to Gas-kins the bookkeeper who appears to have, for some reason, credited two other accounts than that of Cummins. He testified, however, when he found that any one bad paid money on any of these Lane contracts, he would credit the account of the man who paid the money as soon as he found who did the paying; that it was his intention to give the man credit for all he had paid and all he returned, and that he gave such credits as soon as he learned of the payment of the money or- the return of the material. The injustice of allowing appellant to take this money paid by Cummins and appropriate it to the payment of other debts due it from Lane, when the evidence unquestionably shows that it must have been understood by all parties concerned that the payment was made by Lane on the Cummins account, is so evident that such application should not be permitted to stand as against Cummins, unless there is some inflexible rule of law which requires the court to sustain the application so made. There is, however, no such rule of law requiring the court to disregard the evident understanding of all the parties concerned in the transaction.

In 2 Parsons on Contracts (5th Ed.) 630 the rule is laid down that “it is not necessary that the appropriation of the payment should be made by an express declaration of the debtor; for if his intention and purpose can be clearly gathered from the circumstances of the case, the creditor is bound by it.” In this case the circumstances plainly show that it was the intention and the purpose of Lane that the money should be paid upon the Cummins contract.

In Koch v. Roth, 150 Ill. 212, it is said: “Where the debt- or pays generally or fails to make the application when he might do so, the creditor may apply the payment to whatever debt he pleases, unless there are circumstances which would render the exercise of such discretion by him, unreasonable and unjust to the debtor.” It thus appears that if there are circumstances which would render it unreasonable or unjust to the debtor, to permit the creditor to apply the payment to whatever debt he pleases, the court will not permit it to be done. This rule applies with peculiar force here where the real party whose interests are to be injuriously affected by the application made of the fund, is a third person, who made the payment under circumstances which show ■he had a right to expect that the amount paid by the builder to the material men out of the check given by him, would go to liquidate the bill for lumber used on his contract. The court below properly entered a decree which gave appellee Cummins credit for the $400 paid by him and the same will be affirmed.

Affirmed.


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    August Marschhoff et al., Appellees, v. William Wirth, Jr., Appellant.

      Verdicts—ichen set aside as against the evidence. A verdict will be set aside on review where the same is clearly and manifestly against the weight of the evidence.
    Action in case. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed August 5, 1910.
    Dill & Peingsten, for appellant.
    A. B. Davis and Barthel & Klingel, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit by appellees to recover damages by reason of the alleged wrongful action of defendant, in obstructing certain streams and watercourses, by putting rocks and other material into the same, by reason whereof, water which would have naturally flowed through said streams, was caused to back up and overflow certain premises of appellees, whereby their crops then growing upon said lands consisting of 16 acres of corn and two acres of hay, were greatly damaged and their leasehold interest in said premises also damaged and reduced in value. Appellees were farming the premises in question under a lease running five years from March 1, 1909. The farm contained 80 acres, mostly rough, hilly land, but there was a field of bottom land of from 10 to 15 acres. The yearly rent paid by them was $125 for the whole 80 acres. Appellant owned land adjoining the bottom tract on the north and had a wagon road running from his residence, on his own premises south along the west side of appellees’ bottom field to a public highway running east and west along the south end of said field. A stream known as Prairie Du Pont creek also runs from a point near the southwest corner of said tract across the west side thereof in a northerly direction to appellant’s land. Another and smaller stream enters Prairie" Du Pont creek from the east near the southwest corner of said tract, a short distance north of the public road and another and still smaller stream coming from the west, falls in to Prairie Du Pont creek, near the northwest corner of said tract of land. Appellant’s road, after leaving his own land, ran for a distance along the west side of Prairie Du Pont creek, crossing the smallest of the three creeks mentioned on a bridge. About the middle of the bottom tract the wagon road passed over Prairie Du Pont creek by a ford, continuing thence on the east side thereof, to the public highway and crossing the second of the creeks above mentioned on a bridge near the highway. Appellant’s right to use this road was admitted and is not in question here.

The evidence showed that in the spring of 1909, appellant piled rocks in the creeks at both the upper and lower bridges and put a log across and placed rock in the creek at the ford of Prairie Du Pont creek; that he afterwards built new bridges in place of the old ones, thereby narrowing the channels of the smaller creeks to a considerable extent; that by reason thereof water was diverted from the channel of the several creeks mentioned and appellees’ bottom field was partially overflowed; that about four tons of hay worth $20 a ton and about five acres of growing corn were destroyed.

The proof, wholly failed to show that appellees suffered damages to the amount of $600.80, the amount recovered by them. Appellees admit that the judgment is for more than the actual damages proven on the trial; but state that they should be entitled to recover the same, for the reason that appellant’s acts were oppressive and in utter disregard of appellees’ rights.

Appellees however bring suit only for the damages actually claimed to have been suffered by them, but even if they could be entitled under their plea to recover punitive damages, the proofs in this case were not such as to sustain the same. While there were some disputes between the parties, both appellant and appellees insisting upon what they claim to be their rights, yet the evidence does not show such acts on the part of appellant as to warrant a jury in giving punitive or exemplary damages. The judgment of the court below is therefore reversed and the cause remanded.

Reversed and remanded.


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    Edward L. Thomas, Appellant, v. L. D. Turner, Sr., et al., Appellees.
    1. Contracts—what competent to aid construction. If the meaning of a contract is uncertain, it is proper for the court to look to the interpretation which the parties themselves have placed thereon to ascertain its true meaning.
    2. Interest—when allowance under construction of contract as made by parties proper. If parties by their conduct have indicated that certain sums of money shall draw interest, an allowance by the court in accordance with such conduct will be sustained, the contract itself being uncertain in its terms.
    3. Accounting—when cross bill unnecessary. A complainant who has filed a bill for an accounting will be decreed to pay a balance found due by him to the defendant, even though such defendant has filed no cross bill.
    Bill in equity. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed August 5, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Fred B. Merrills, for appellant.
    B. D. W. Holder, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Prior to March, 1893, appellant, Edward L. Thomas, and Alpheus Boling were associated together in constructing a line of railroad for the St. Louis, Belleville and Southern Bailway Company. Just what the business relations between the two parties were, does not clearly appear, it being claimed by appellant, however, that they were partners. On or about March 23, 1893, Samuel H. Leathe acquired a controlling interest in the property of the railway company and soon afterwards Boling commenced suit in his own name, to establish a lien against the railway company for the amount due him for grading and construction. Appellant thought the suit of Boling was injuring both of them and persuaded him to dismiss it. Thereupon, on April 1, 1893, the business relations between appellant and Boling, whatever they may have been, were severed and the following memorandum in writing to that effect, and stating the account between them, was prepared and signed by appellant and assented to by Boling, to wit:

“Edward L. Thomas and Alpheus Boling, have this day settled their affairs as follows: Boling is to receive of moneys due from railway company, the sum of $6,000 which is to be in lieu of everything due up to April first, 1893, for grading and amounts still due for board, being about $500. All balance due for grading is to go to Thomas for money advanced by him and his portion of the profits. The property is to be put into a corporation and work is to be taken, and out of work done, the debts of the company are to be paid as follows: Amounts due Dinkelman, Ogle, Gutter-man, Dahm, Voellinger, Sahlender, Beutermann, Wolfert, Wohlgemuth and $150 borrowed to pay Dinkelman and due Wamser. The stock of the corporation is to be $4000, $2000 of which Thomas is to have, $1000 Boling is to have and $1000 Vogt is to have and is to be paid up by property, at cost price, now owned by Thomas and Boling. All debts contracted after April first are to be debts of the corporation and all work taken is to be for corporation. Boling is to get pay out of work for mule team bought of Ogle. The $6000 to be paid Boling is not to be paid until settlement with the railway company. Signed and dated April 1st, 1893. Edward L. Thomas.”

The corporation mentioned in the above memorandum was never formed and Thomas and Boling did no further ■grading together as a partnership, corporation or otherwise. The original contract for the grading of the road appears to have been entered into by the railway company with appellant and at the time last referred to, he claimed there was due to him on such contract for grading and construction, about $48,000 and later on February 12, 1894, he recovered a judgment against the company for $53,022.23, which included said amount and interest. Afterwards said Leathe, ■who had attempted to prevent appellant from obtaining such judgment, brought suit against appellant in St. Louis, Missouri, obtained a judgment against him and subsequently brought suit upon the Missouri judgment In the circuit court of St. Clair county. Appellant resisted this suit and set-off against his said judgment of $53,022.23.

The result of the litigation was a judgment against Leathe in favor of appellant, for $71,000. This judgment was appealed from but was sustained and after some years, on April 2, 1908, was paid. At that time the judgment, with accured interest on it, amouned to $93,168.81. In the meantime, as Boling was pressing appellant for money on account of the $6,000 mentioned in the above statement, they, on Hovember 16, 1895, had another accounting which was reduced to writing by appellant, agreed to by both parties but not signed by them. In this statement, appellant charged himself with the $6,000 provided to be paid to Boling by the memorandum of April 1, 1893, together with interest thereon from the date of that contract to the time of the second settlement at five per cent, per annum, .amounting to $787.50, a total of $6,787.50. He took credit for paying Boling’s half of the debts due the several parties mentioned in the former memorandum, less $39.50 paid by Boling, amounting to $689.76; also with the sum of $2046.25 for a mortgage debt paid off for Boling and $551.49 cash, showing a balance due Boling of $3500. On February 20, 1900, Boling for value received, indorsed a written assignment of his interest upon both statements to John D. Vogt and transferred them to him. On August 19, 1905, Vogt and appellant gave their note to L. D. Turner, trustee, for $4,000, and to secure the. same appellant executed a real estate mortgage to said Turner as trustee, and also assigned to him $7500 of his judgment against Leathe. Of the $4000 so obtained $1500 went to Thomas and $2500 to Vogt, to be credited on indebtedness of Thomas to him. Vogt paid the interest on the $4000 except a small amount which was due when the note was finally paid by Turner as trustee. After the Leathe judgment, amounting to $93,168.81 was paid, as aforesaid, $7500 of that amount was paid over by the party making the payment to Hr. Turner, as trustee. With this amount Hr. Turner paid said $4000 note and interest and paid the balance amounting to $3436.42 to Vogt, upon presentation to him by Vogt of certain notes and due bills given to him by appellant. On December 21, 1908, appellant filed his bill in the circuit court of St. Clair county against L. D. Turner, Sr., John D. Vogt and Alpheus Boling, asking for an accounting from them.

Appellees answered and the cause was referred to a special master in chancery, who heard the evidence, stated the account and reported his conclusions. In his statement of account the master charged appellant with the $3500 shown to be due Boling by the settlement of November 16, 1895, together with interest thereon at the rate of five per cent per annum, to April 4, 1908, amounting to $2165.04. He also charged appellant with certain other payments made for" him or on his account, concerning which there appears to be little if any dispute, the total charges amounting to $7237.98; and credited him with the $2500 paid out of the bank note to Vogt, $3426.42, paid by Turner out of the trust fund to Vogt, with an over charge made by appellant against himself of $258.83, caused by a mistake in figuring the interest due on the $6,000 with which he charged himself in the memorandum of November 16, 1895, and also $39.50 interest paid by appellant to a bank for Vogt, the total credits amounting to $6234.75, and found there was a balance due Vogt from appellant of $1003.23.

Exceptions were filed to the master’s report, which were overruled by him and later the court confirmed the report of the master and entered a decree in favor of Vogt and against Thomas, for $1003.23.

Appellant claims that the method used in stating the accounts was incorrect and that the decree is against the law and evidence. The master in chancery in his report, states that there seemed to be no difference between the parties, as to the facts, but that the point of contention appeared to be whether or not the contract between Thomas and Boling, referring to the memorandum of November 16, 1895, should bear interest or not. Appellant claims that a correct statement of the account, would show there was due him the sum of $1143.76. Tie states the account in two separate ways in his brief, one of which appears to show more due' him in fact than he actually claims as above set forth. Both of the statements of account made by him are based on a different theory from that adopted by the master in chancery and have to do among other things, with the securing of the judgment of appellant against Leathe and the expenses connected therewith. We are of opinion that the securing of that judgment and the expenses connected with the same are not matters with which this suit is concerned; that by the two statements of account and agreements made between appellant and Boling above referred to, Boling lost all of his interest in.the claim and subsequent judgment against Leathe and that as a matter of fact the real contention between the parties is, as stated by the master, whether the $3500 agreed to be due Boling on November 16, 1895, should or should not draw interest at the rate of five per cent per annum.

We are therefore called upon to determine whether it was the intention of the parties that the $3500 stated to be due Boling by the second contract, should or should not draw interest. It is a well known principle of law that, “In the construction of a contract, it is always allowable to look to the interpretation the contracting parties place upon it, either contemporaneously or in its performance, for aid in ascertaining its meaning.” Consolidated Coal Co. v. Schneider, 163 Ill. 393.

When appellant made up the statement of ¡November 16, 1895, he calculated interest at the rate of five per cent per annum, on the $6000 stated to be due Boling, by the memorandum of April 1, 1893. The allowance of this interest appears to have been accepted by both parties as proper in the statement of the account between them and it must therefore have been their understanding that the $6000 should draw interest at the rate of five per cent per annum. Such being the case, we conclude that the $3500 mentioned in the second statement, which was the amount of the $6000 less the payments which appellant had made in the meantime, should also draw interest at the same rate. If the $6000 was to draw interest, as was recognized by the parties, we find no good reason why the giving of credits which cut the amount due to Boling from $6000 to $3500, should stop the payment of such interest. We are therefore of opinion that the method adopted by the master in chancery in his statement of account between the parties, was the proper one and that the finding of the court below, that there was due appellee Vogt, the sum of $1,003.23, was correct.

It is claimed however, by appellant, that Vogt is not entitled in this suit to any decree granting him affirmative relief for the reason that he filed no cross bill asking for the same but relied entirely upon his answer. Appellant by his bill prayed for an accounting, claiming there was a balance due him, while Vogt, by his answer, claimed there was a balance due him from appellant. It is a universal rule that upon a bill in equity for an accounting, the party against whom the balance is found, will be decreed to pay it and that no cross bill is necessary. Acme Copying Co. v. McLure, 41 Ill. App. 397; Clinton v. Winnard, 135 id. 274; Atkinson v. Cash, 79 Ill. 53.

The decree of the court below is affirmed.

Affirmed,