author: Mr. Justice S caul ah

text:
    John F. Devine, Administrator, Appellee, v. The Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 18,885.
    1. Commerce, § 3

      —what to he proved in action under Federal Employers’ Liability Act. In an action under the Federal Employers’ Liability Act for the wrongful death of an employe, it is necessary for plaintiff to show that deceased was killed while defendant was engaged in interstate commerce and while deceased was employed in such commerce.
    2. Commerce, § 4

      —what sufficient to show prima facie that decedent was engaged in interstate commerce. In an action for the wrongful death of a switchman caused by a fall from a train upon its being suddenly stopped, the evidence was held sufficient prima facie to bring the case within the Federal Employers’ Liability Act.
    3. Commerce, § 4

      —how fact that employe was engaged in interstate commerce may he proved. In an action under the Federal Employers’ Liability Act for the wrongful death of an employe, the fact that decedent was at the time of the accident engaged in interstate commerce may be established by direct or circumstantial evidence, and defendant cannot attack the weakness of plaintiff’s evidence by contending that records in its possession which plaintiff did not introduce in evidence would have shown the destination of the cars in the train inflicting the injury.
    4. Evidence, § 40

      —when failure to introduce evidence creates presumption against party. In an action under the Federal Employers’ Liability Act, the failure of defendant to introduce records in its possession which would have shown whether the train on which decedent was employed at the time of the accident, or any of the cars therein, was then engaged in interstate commerce creates a presumption against it.
    5. Master and servant, § 177

      —when evidence sufficient to show negligence of engineer to stopping train suddenly. In an action under the Federal Employers’ Liability Act for the wrongful death of a switchman, the evidence was held sufficient to sustain plaintiff’s contention that the accident was caused by the negligence of the engineer in stopping the train with great force and violence thereby throwing decedent to the ground.
    6. Master and servant, § 349

      —when negligence of fellow-servant not an assumed risk. In an action under the Federal Employers’ Liability Act for the wrongful death of a switchman caused by the negligence of the engineer in suddenly stopping the train with great force and violence, the doctrine of assumed risk is inapplicable.
    7. Master and servant, § 206

      —when fellow-servant doctrine inapplicable. In an action under the Federal Employers’ Liability Act, the fellow-servant doctrine is inapplicable.
    8. Master and servant, § 801

      —when instruction in language of statute not erroneous. In an action under the Federal Employers’ Liability Act, an instruction in the language of the section of the act upon which recovery was sought is not erroneous as permitting recovery on proof of negligence other than that charged, particularly where other instructions confined the jury to the negligence charged.
    9. Master and servant, § 801

      —when instruction in language of statute need not include entire act. In an action under the Federal Employers’ Liability Act for the wrongful death of a switchman, an instruction in the language of the section of the act upon which a recovery was sought is not erroneous because another section of the act upon which no reliance was placed was not included therein.
    10. Master and servant, § 98

      —effect of Federal Employers’ Liability Act. The Federal Employers’ Liability Act supersedes all State laws on the subject.
    11. Death, § 51

      —when statutory restrictions on amount of recovery inapplicable. Since the provisions of the Federal Employers’ Liability Act limiting the right of recovery in actions for wrongful death to the pecuniary damages actually sustained by the next of kin of decedent place no arbitrary limit upon the amount recoverable, recovery may be had for the full pecuniary damages actually sustained by the next of kin independently of restrictions imposed by State laws on the amount of the recovery in such cases.
    12. Death, § 67

      —when verdict not excessive. In an action under the Federal Employers’ Liability Act for the wrongful death of a switchman thirty-seven years of age at the time of his death, a verdict for $15,000 was held not to be excessive.
    Appeal from the Circuit Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 26, 1914.

      Certiorari granted by Supreme Court.

      Statement by the Court. This is an appeal brought by the appellant, The Chicago, Bock Island & Pacific Bailway Company, hereinafter referred to as the defendant, to reverse a judgment for $15,000 in an action on the case, entered in the Circuit Court of Cook county, Illinois, in favor of John F. Devine, administrator of the estate of William J. Mason, deceased, appellee, hereinafter referred to as the plaintiff. The suit was brought under the Federal Employers’ Liability Act of 1908. The declaration consisted of one count. In substance, it alleged that in the lifetime of the plaintiff’s intestate, prior to and on, to wit, the 20th day of June, 1910, the defendant owned, possessed and operated a certain railroad which extended, among other places, from Chicago, Cook county, Illinois, into and through a part of another State or States, and it was then and there a common carrier by railroad, and as such was then and there engaged upon, by and in connection with its said railroad in commerce between the several States; that the deceased was then and there, and at the time of his injuries and death hereinafter complained of, employed by the defendant in such commerce as a switchman, to work and switch with a certain engine and certain cars which it was then and there operating upon its said railroad in its said business; that at the time aforesaid, and at, to wit, in the vicinity of 105th and 106th streets in Chicago, in the county and State aforesaid, defendant was operating a certain switching train, being drawn by a certain locomotive upon and along one of the tracks of its said railroad, and the deceased, in the discharge of his duty as such switchman, was then and there standing on top of one of the cars of said train, and while deceased was so standing upon said car, and while he was exercising ordinary care and caution for Ms own safety, the defendant’s engineer, who was then and there in charge of the operation and management of said engine, then and there wrongfully and negligently caused said train to be stopped with great and unusual suddenness, force and violence, and as a direct result, and in consequence of said manner in which said train was so stopped, the deceased was thereby then and there thrown from the said car of said train upon which he was riding as aforesaid, to and upon the track there, and he thereby then and there sustained such serious bodily injuries that he died as a result thereof within a short time, to wit, within an hour after said accident, in the County and State aforesaid; that the deceased left him surviving his widow and a minor son, his only next of kin; to the damage of the plaintiff, as administrator aforesaid, of $20,000.
    William J.' Mason, deceased, was thirty-seven years of age at the time of the accident in question, and was working for the defendant as a head switchman in a crew consisting of an engineer, fireman, conductor, hind switchman and head switchman. It was the work of this crew to do miscellaneous switching in the yards of the defendant; it was also its duty to make deliveries of cars to various industrial plants and also to the yards of other railroad companies and to bring back from these industrial plants and from the yards of the other railroad companies cars to the yards of the defendant. It was stipulated between the parties to the suit that the defendant Company was a common carrier, engaged in both interstate and intrastate traffic at the time of the accident; that it was a railroad that extended through part of Illinois and through several of the western States; that the proportion of the mileage of the company in Illinois as compared with the mileage outside of Illinois is as one to five or six; that the defendant Company had about 6,000 or 7,000 miles of railroad altogether; that over that road it operated as a common carrier, hauling both freight and passenger cars; that some trains consist entirely of cars engaged in intrastate business and some entirely of cars engaged in interstate business; that some trains contain both intrastate cars and interstate cars; that it hauled its intrastate and interstate cars over the same tracks. On the morning of the accident the crew in question, with an engine, had proceeded northward from the defendant’s yards at Blue Island to 103rd street on the defendant’s railroad, a distance of about two miles. At this point (Washington Heights) the yards of the Pan Handle Bailroad Company are located,—a little north of 103rd street and just west of the defendant’s railroad. There is a lead track that connects the two roads. After the crew had performed certain switching duties in the neighborhood of 103rd street, it lined up two strings of cars in the yards of the Pan Handle Company to take back to the yards of the defendant at Blue Island. One string consisted of twenty-three cars and was standing in the Pan Handle yards on what was known as the middle track, and the other string, consisting of twenty-two cars, was lined up on the track just west of the middle track, this track being known as the lead track. The engine was coupled on to the twenty-three cars that were lined up on the middle track and the air brakes on all of these cars were connected up with the engine. The engine with the twenty-three cars attached then pulled south over a switch and then backed on to the lead track, where the twenty-two cars were standing; these cars were then coupled on to the train, but the air brakes were not “cut in” on them; the engine then pulled south with the train out of the Ban Handle yards and on to the defendant’s railroad. Just as the last car on the train had cleared the switch that admitted the train to the defendant’s railroad the train was stopped and the jar of the stop caused the deceased to be thrown from the top of the car upon which he was standing and he fell between two cars to the ground and was killed.

      M. L. Bell and A. B. Euoch, for appellant.
    James C. McShaue, for appellee.

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

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

   Mr. Justice S caul ah

delivered the opinion of the

court.

The defendant first contends that the Federal Employers’ Liability Act of 1908 is not applicable to the facts in this case. Section 1 of said act provides : “That every common carrier by railroad, while engaged in commerce between any of the several States * * * shall be liable in damages to any person suffering injury, while he is employed by such carrier in such commerce or in case of the death of such employee, to his or her personal representative for the benefit of the surviving widow or husband or child of such employee; * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier.” To bring the present case within the application of this act it was necessary for the plaintiff to show that the deceased was killed while the defendant Railroad Company was engaged in interstate commerce and while deceased was employed in such commerce. Pederson v. Delaware, L. & W. R. Co., 229 U. S. 146. "W e have carefully examined the evidence bearing upon this branch of the case, and we are satisfied that the plaintiff made a prima facie showing that the case was one that came within the provisions of the act in question. Defendant argues at length that the evidence of the plaintiff on this subject was of a very weak character and it complains that while there were records by which the origin and the destination of the cars in the train in question could be conclusively proven, the plaintiff did not see fit to introduce these in evidence. We know of no rule of law that required the plaintiff to introduce these records in evidence. The plaintiff had the right to prove this branch of his case, like any cither branch, by direct or circumstantial evidence. The records referred to by the defendant were in its possession, and the fact that it did not produce them in rebuttal of the evidence introduced by the plaintiff greatly strengthened the plaintiff’s proof on this branch of the case. “Weak evidence becomes strong by the neglect of .the party against whom it is put in, in not showing by means within the easy control of that party, that the conclusion drawn from such evidence is untrue. Great Western R. R. Co. v. Bacon, 30 Ill. 348; Germania Fire Ins. Co. v. Klewer, 129 Ill. 559 [599].” Pittsburgh, Ft. W. & C. Ry. Co. v. Callaghan, 50 Ill. App. 676. While the defendant hotly contested its liability in the ease, it saw fit not to introduce the records bearing on the question of the origin and the destination of the cars in the train in question. The presumption to be drawn from this fact is obvious.

The defendant next claims that “the court erred in holding that there were any facts in evidence from which the negligence of the engineer could be reasonably and legitimately inferred.” On the trial the defendant’s theory of the accident was that the train was moving slowly and that immediately prior to the stopping of the same the deceased had signalled for the train to stop, so that he or others of the train crew might “cut in the air” on the twenty-two cars that had just been coupled to the train; that the engineer, acting on the signal to stop, stopped the train in an ordinary and proper way; that the deceased knew that it was customary to stop the train at the place in question to permit him and other members of the train crew to “cut in the air” on cars not connected up with the air-brake system; that if there was jarring and bumping of any cars when the train was stopped, that caused the deceased to fall from the car on which he was standing, it was limited to the rear twenty-two cars that had not been “ cut in on the air ’ ’; and it was not caused by the manner in which the train was stopped by the engineer, but it was due entirely to the fact that no air had been “cut in” on these cars. The theory of the plaintiff was that the train (moving at the rate of five or six miles an hour) had just passed the switch that led from the Pan Handle yards to the track of the defendant Company; that the rear switchman was closing the said switch; that the deceased, standing on one of the cars, gave a signal to the engineer to shut off steam and to allow the train to drift along so that the rear switchman would have time to close the switch and to run after and catch the train; that it was not customary tp stop the train at the place in question for the purpose of “cutting in air” on the cars; that the stop was an unexpected one and it was made with most extraordinary and unusual force and violence. In our opinion, the weight of the evidence sustains the theory of the plaintiff. We certainly cannot hold, as defendant requests us to do in its present contention, that “the court erred in holding that there were any facts in evidence from which the negligence of the engineer could be reasonably and legitimately inferred.”

The defendant next contends that the accident was brought about “by one of the ordinary risks, hazards and dangers of the employment of the deceased. ’ ’ This contention is necessarily based upon the assumption that the negligence charged in the declaration was not proven. If our conclusion that the accident was caused by the negligence of the engineer is justified by the proof, it logically follows that there is no merit in the present contention. In a case like the one before us, the fellow-servant doctrine does not apply (Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1), and the defendant is chargeable with the negligence of the engineer. The deceased did not assume the risk or danger occasioned through the negligence of the engineer, and such risk or danger could not be termed one of the ordinary risks or dangers of the employment of the deceased.

The defendant next contends that the court erred in giving to the jury, on behalf of the plaintiff, the following instruction: ‘ ‘ The court instructs the jury that prior to and on the 20th day of June, 1910, there was a certain act of Congress in full force and effect, which provided, among other things, as follows: ‘That every common carrier by railroad, while engaged in commerce between any of the several States, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employe, to his or her personal representative for the benefit of the surviving widow or husband or children of such employe, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employes of such carrier.’ Said act also provides: ‘That any and all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employe, or where such injuries have resulted in his death, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe.’ ” The defendant contends that this instruction authorized the jury to find a verdict for the plaintiff if the jury found, from the evidence, that the death of the deceased resulted from any negligence of any officers, agents or employes of the defendant, whereas to warrant a verdict of guilty it was necessary for the plaintiff to prove that the defendant was guilty of the specific negligence charged in the declaration, viz., that the engineer caused the train to stop with great and unusual suddenness, force and violence. We do not think that there is any merit in this contention. The part of the instruction that is criticised does not direct a verdict,—it merely gives the law upon which the claim of the plaintiff is predicated. The Supreme Court of this State has frequently said that it is not error to lay down the law in the language of the law itself, unless there is something in the instruction calculated to mislead the jury in the application of the law to the particular case. People v. McIntosh, 242 Ill. 606; People v. Cotton, 250 Ill. 343. It is a common practice to give instructions of this character in cases of this kind, and whén all of the given instructions in this case are considered together, it is clear that the instruction complained of (one that does not direct a verdict) could not have prejudiced the defendant in this case. One of the instructions given to the jury contains the following language: 1 ‘ The instructions given to the jury are and constitute one connected body and series, and should be so regarded and treated by the jury; that is to say, they should apply them to the facts as a whole and not detach or separate any one instruction from any or either of the others.” The court gave to the jury, at the instance of the defendant, the following instruction: “The defendant is not liable for any negligence except that charged in the declaration.” Another instruction, given at the instance of the defendant, contains the following language: “Before the plaintiff can recover he must prove first that the defendant was guilty of the negligence charged against it in the declaration.” Still another of defendant’s instructions contains the following language: “The burden of proof is on the plaintiff to show what degree of care Mason was exercising for Ms own safety. If plaintiff proves that Mason was not negligent at all and that the negligence of the defendant charged in the declaration was the proximate cause of Mason’s injury, then you should award, etc.” The defendant claims that the jury might have understood from the instruction in question, as applied to the evidence in the case, that the law was, that if they believed from the evidence that any employe of the defendant was negligént in not coupling up the air in the entire train before it went out on the main line, or in not providing a means for coupling in the air before it started out, and that the deceased was killed by reason thereof, that then the defendant was liable. We find nothing in the record to warrant us in finding that the jury could have been so misled by the instruction. We find that the jury were given, at the instance of the defendant, the following instruction: “The court instructs you that under the evidence in this case the defendant was not required to have the air coupled up on the movement being made at the time Mason was injured.” The defendant contends that even if it was proper for the court to give an instruction in the language of the act, it was not proper to pick out particular portions of the act and to omit other portions. Defendant complains that the language in section 4 should have been added to the instruction. Section 4 of the act reads as follows: “Section 4. That in any action brought against any common carrier under or by virtue of any of the provisions of this act, to recover damages for injuries to, or the death of, any of its employes, such employe shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe.” The case of the plaintiff was not predicated upon section 4, and it would not have been proper to have added the said section to the instruction. Had section 4 been added to the instruction, the defendant might, with some warrant, have argued that the giving of the same was misleading and improper.

The defendant next contends that the court erred in entering judgment for $15,000. The position of the defendant seems to be that even if it be conceded that Congress had the power to fix the amount that might be recovered in a case of this character, that it has not done so, and that, therefore, the law of this State must govern on the question of damages, and that in no event could a larger amount be recovered in this case than $10,000, the maximum amount allowed in this State in a case of this character. 'There is no merit in this contention. The plaintiff’s action is predicated upon the Federal Employers’ Liability Act of 1908, and we have already held that the facts of the case bring it within the act. The provisions of this act supersede all State laws upon the subject. Mondou v. New York N. H. & H. R. Co., 223 U. S. 1; Missouri K. & T. Ry. Co. v. Wulf, 226 U. S. 570; Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59; St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156. The Federal Act in question limits the right of recovery in this case to the pecuniary damages actually sustained by the next of kin of the deceased (Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59), but it does not place any arbitrary limit on the amount that may be recovered. Plainly it would seem to be the intention of the act that recovery may be had for the full pecuniary damages actually sustained by the next of kin.

The defendant next contends that the damages awarded are excessive. We have carefully examined the evidence bearing upon this question, and we cannot say that the finding of the jury as to the amount of damages is manifestly against the weight of the evidence.

Finding no error in this record, the judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    William F. Jones, Appellee, v. Joseph Edward Williams, Appellant.
    Gen. No. 18,899.
    (Mot to he reported in full.)
    Appeal from the Superior Court of Cook county; in Hon. Chables A. McDonald, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 26, 1914.
    Rehearing denied April 9, 1914.

      Abstract of the Decision.
    1. Judgment, § 379

      —what constitutes a collateral attack, on judgment of Probate Court. On a bill by the holder of a judgment recovered in the Probate Court against the estate of defendant’s mother, to set aside as fraudulent a conveyance from decedent to defendant, an account filed in the Probate Court by decedent, as executrix of her husband’s estate, tending to show payment before the recovery of complainant’s judgment, is inadmissible as a collateral attack on the judgment.
    2. Equity, § 479

      -—when decree must conform to prayer. The decree must conform to the prayer of the bill.
    3. Fraudulent conveyances, § 300

      —when decree erroneous as not conforming to prayer of bill. Where in a suit to set aside a conveyance as fraudulent the prayer of the bill was that the conveyance be set aside “as to the orator,” a decree declaring the conveyance void in toto is erroneous.
    Statement of the Case.
    Bill in equity by William F. Jones against Joseph Edward Williams to set aside a conveyance to defendant as fraudulent. From a decree setting aside the conveyance in toto, defendant appeals.
    Edward H. Kubitz, for appellant.
    J. M. Camelon, for appellee.

      See lUinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    West Coast Timber Company, Appellee, v. Marvin Hughitt, Jr., et al., Appellants.
    Gen. No. 18,915.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 26, 1914.
    Rehearing denied April 9, 1914.

      Abstract of the Decision.
    1. Corporations, § 736

      —when foreign corporation not doing business in this State. A foreign corporation engaged in the lumber business in another State without a license to do business in this State, held not doing business in this State so as to deprive it of the right to maintain an action for lumber sold in this State, where the evidence shows that it had no place of business or office in this State; that it had solicitors in Chicago who solicited orders for it, which orders were sent to the office of the corporation without the State for approval and acceptance; that the lumber sold was shipped by it from its home State direct to the purchasers; and the corporation had certain letter heads containing the address of a “Branch Office” in Chicago,
    Statement of the Case.
    • Action in assumpsit by West Coast Timber Company against Marvin Hughitt, Jr., David K. Jeffris and Fred J. J effris to recover for fopr carloads of lumber shipped and delivered to the defendants by the plaintiff. The declaration contained the ordinary common counts only. With the declaration was filed an affidavit of claim that defendants were indebted to plaintiff in a certain sum. The defendant filed four pleas: First, the general issue; second, the five years’ statute of limitations; third, mil tiel corporation; and fourth, that plaintiff was a foreign corporation doing business in this State without a license. The defendants also filed an affidavit of defense. The case was tried before a court and jury and a verdict was returned finding the issues for the plaintiff and assessing its damages in the sum of $1,523. From a judgment entered upon the verdict, defendants appeal.
    Adams, Crews, Bobb & Wescott, for appellants.
    Allen Gr. Mills, for appellee.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Scanlan

delivered the opinion of the court.

2. Limitation of actions, § 21 —when statute begins to run on contracts constituting one transaction. In an action to recover the price of four carloads of lumber shipped and delivered to defendants at different times, evidence held sufficient to show that the several shipments were merely parts of one transaction and that the statute began to run from the date of the last delivery so that the claim for all the other shipments were saved from the bar.

3. Set-off and becoupment, § 28 —when defense of recoupment is waived. In an action on a contract where the defendant filed with their pleas an affidavit of merits which did not include a defense of recoupment for damages, held that the defense of recoupment was thereby waived.


author: Mr. Justice Soanlan

text:
    Charles E. Hamilton, Receiver, Appellee, v. Louis Eisendrath, Appellant.
    Gen. No. 18,938.
    1. Pleading, § 189

      —when duplicity in declaration is waived. Duplicity in a declaration is a defect in form only and must be taken advantage of by special demurrer, and where the defendant files no special demurrer thereto charging duplicity, the defect is waived.
    2. Cobpobations, § 227

      —right to enforce stockholder’s liability against real owner of stock held in name of another. The real owner of stock in a corporation, standing by his procurement in the name of another on the books of the company, may be charged in an action at law with statutory liability for the corporate debts, since he is in law a "shareholder” and as such liable in an action at law for an assessment made upon the insolvency of the corporation.
    3. Cobpobations, § 584

      —when receiver may sue to enforce stock liability. There is no difference in principle between an action brought by a receiver of a national bank, under the provisions of the National Bank Act, and an action brought by a receiver of an insolvent corporation under the provisions of a state constitution to enforce the individual liability of a stockholder.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 26, 1914.

      Statement by the Court. This is an action in assumpsit, brought in the Circuit Court of Cook county, Illinois, by appellee, Charles E. Hamilton, Receiver of Evans, Johnson, Sloan Company (hereinafter designated as the plaintiff), an insolvent Minnesota corporation, on behalf of, and as the statutory representative of, said corporation, against Louis Eisendrath, the appellant (hereinafter designated as the defendant). 'The defendant filed a demurrer (general and special) to the declaration of the plaintiff. The demurrer was overruled and the defendant was ordered to plead to the said declaration within ten days. The defendant having failed to plead within that time, a default was taken. A motion in arrest of judgment was overruled, and thereafter a judgment was entered against the defendant in the sum of $1,933.33. The defendant has prayed this appeal from the judgment.
    The declaration alleges that the Evans, Johnson, Sloan Company was a Minnesota corporation organized in 1902, with a capital stock of $250,000, divided into 2,500 shares of the par value of $100 each; that the business of the corporation was to buy, sell, manufacture and deal in all kinds of merchandise; that in 1905, the Hnited States District Court, District of Minnesota, made its order adjudging said corporation a bankrupt; that trustees of said corporation were appointed; that in said bankruptcy proceedings, claims to the amount of $250,000 were allowed; that a dividend of 20 45/100 per cent, was declared and said corporation was discharged as a bankrupt; that on May 28, 1906, Marshall Field & Co., a creditor of said corporation, commenced in the District Court of Ramsey county, Minnesota, an action under chapter 76, Gen. St. Minn. (Revised Laws 1905, sec. 3173), as amended and supplemented by chapter 272, Laws of 1899, to wind up said corporation and to sequestrate its stock and property and appoint a receiver therefor with authority to collect the constitutional liability of the stockholders, as provided by said chapter 272, Gen. Laws 1899 "(Revised Laws 1905, secs. 3184-3190); that the summons in said action was duly and personally served upon said Evans, Johnson, Sloan Company; that it appeared by its attorney in said action; that the court made its order and decree adjudging the corporation insolvent and appointing the plaintiff as receiver of said corporation; that creditors of said insolvent corporation have filed claims to the amount of $148,169.59; that said claims have been allowed; that all the property and assets which the insolvent corporation had, or acquired prior to the commencement of the action in which the present receiver was appointed, were taken possession of by the trustees in bankruptcy and converted into cash and distributed, and that no assets have come into the hands of this receiver excepting the right to sue the stockholders for the superadded liability for debts of the corporation; that section 3 of article 10 of the Constitution of Minnesota provides as follows:
    “Each stockholder in any corporation, excepting those organized for the purpose of carrying on any kind of manufacturing or mechanical business, shall be liable to the amount of stock held or owned by him. ’ ’ That on or about April 26, 1902, the defendant Eisendrath, in Hennepin county, Minnesota, subscribed for and became the owner of fifteen shares of the capital stock of said corporation of the par value of $1,500; that a certificate therefor was issued and delivered to defendant, and a record thereof made on the books of the corporation, and that said fifteen shares have ever since been and now are owned and held by said defendant; that on or about February 16, 1905, and after a large part of said indebtedness of said Minnesota corporation had arisen and been incurred, and when said corporation was insolvent and in failing circumstances, the defendant, with knowledge of the insolvent condition and failing circumstances of said corporation and for the purpose of avoiding his liability as the owner of said shares of "stock, made a pretended transfer thereof to Joseph Stronss, who was then in the employ of the defendant as a clerk, and who was a person without any property or means; that said pretended transfer was without any consideration, that it was made with the understanding between the defendant and Strouss that Strouss should not thereby acquire any beneficial interest in said stock but that the defendant should remain the owner of the entire beneficial interest therein, and that said pretended transfer was fraudulent and void as to the plaintiff and the creditors of the insolvent corporation; that more than $75,000 of the said indebtedness allowed in said sequestration action arose and was incurred prior to the date of said pretended transfer to Strouss, and that it was and is the law of Minnesota, as provided by section 2599, Gen. St. 1894, Rev. St. 1905, sec. 2864, as construed by the Supreme Court of Minnesota, that a stockholder cannot affect or avoid his liability for prior debts by any transfer of his stock. Chapter 272, General Laws of Minnesota for 1899, which provides for the enforcement of the liability of all stockholders •of a Minnesota corporation, is set forth in full in the declaration. The declaration sets forth the petition of the receiver for an assessment upon the capital stock and against all parties liable, the order for hearing thereon; that the proper notice of such hearing was duly given; that a copy of said order and notice of hearing was served on defendant by mail; that the matter was heard by the court; that evidence was introduced by said receiver, and the matter argued by counsel and considered by the court, and that thereafter and on Sept. 4, 1906, the District Court of Ramsey county made and entered its order of assessment in said action assessing the stock to the amount of the full par value thereof. The order of assessment is set forth in full. 'The order contains the following: “It is ordered, that an assessment equal to the par value of each share of the capital stock of said defendant, to wit: the sum of one hundred ($100.00) dollars on each and every share of the capital stock of said defendant, be and the same is hereby assessed upon and against each and every share of said capital stock and upon and against the person or parties liable as stockholders of said defendant for, upon or on account of such shares of stock; that each and every person or party liable as such stockholder of said defendant pay to said Charles E. Hamilton, as receiver of said defendant, at his office, in the City of St. Paul,, in said Ramsey County, State of Minnesota, within thirty days after the date of this order, the sum of one hundred ($100.00) dollars for and on account of each and every share of said stock for or upon which said person or parties are liable as stockholders of said defendant; and that said receiver forthwith proceed to collect the several amounts due from the several persons or parties liable as stockholders of said defendant under the terms of this order, and hold the amounts thus collected until the further order of the court herein.” The declaration sets forth that at the time of the organization of said corporation it was, ever since has been and' now is the law of Minnesota, as decided and determined by its Supreme Court, in construing said provisions of the Constitution and the statutes of said State, that each and every stockholder of said corporation is liable for its indebtedness, in case the property and assets of the corporation are not sufficient to liquidate such indebtedness, to an amount equal to the par value of the stock held or owned by each stockholder, and that such liability is a fund for the security and benefit of all the creditors ratably; to the damage of the plaintiff in the sum of $2,500.
    Rosenthal & Kurz, for appellant.
    James E. Trask and Hobart P. Young, for appellee.

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

   Mr. Justice Soanlan

delivered the opinion of the court.

The defendant first contends that the declaration is faulty for duplicity. Duplicity is a defect in form only and must be taken advantage of by special demurrer. The defendant filed no special demurrer charging duplicity in the declaration. He has, therefore, waived this fault in the pleading-—if it existed in the same. Chicago West Div. Ry. Co. v. Ingraham, 131 Ill. 665; Yeazel v. Harber Bros. Co., 106 Ill. App. 410; Kipp v. Bell, 86 Ill. 577.

The defendant next contends that he is not liable in a common-law action. He admits that the plaintiff, under the allegations of the declaration, would have a right to proceed against the defendant in equity. In passing upon defendant’s contention, certain allegations in the declaration must be borne in mind. These allegations are: “When said corporation was insolvent and in failing circumstances, said defendant, with knowledge of the insolvent condition and failing circumstances of said corporation and for the purpose of avoiding his liability of said fifteen shares of stock, made a pretended transfer thereof to one Joseph Strouss, who was then in the employ of said defendant as a clerk, and who was, as plaintiff is informed and verily believes, a person without property or means; that said pretended transfer was without any consideration; that it was made, as aforesaid, with the understanding between the parties thereto that said Joseph Strouss should not thereby acquire any beneficial interest in said stock, but that said defendant should remain the owner of the entire beneficial interest therein. ’ ’ The defendant, by his demurrer, admits the truth of these allegations. 'The contention of the defendant, therefore, raises the following question: In an action at law, brought by a receiver of a bankrupt corporation against the real owner of certain stock of the said corporation (the said stock standing by the procurement of the real owner, in the name of a dummy owner), can the real owner be charged as stockholder with the statutory liability of stockholders, or is the receiver,' under such facts, compelled to proceed in chancery to enforce his claim ? I

In the case of Davis v. Stevens, 17 Blatchf. 259, a receiver of a national bank in the city of New York sued in an action at law an alleged shareholder to enforce the individual liability of the shareholder, under section 5151 of the Revised Statutes of the United States. In this case, Stevens, the defendant, owned certain shares of stock in a national bank of New York, and to conceal his ownership in order that he might escape statutory liability, he caused the stock to be registered in the name of one Elston, an irresponsible person and a porter in the office of Steven’s New York broker. At the time that this was done, there was no suspicion of the insolvency of the bank, and it remained in good credit for more than a year afterwards. Mr. Justice Waite, the writer of the opinion in the case, said: “The point to be decided now is, whether, in an action at law, by a receiver of the bank, the real owner of stock in a national bank, standing, by his procurement, in the name of another, and never having been in his own name on the books, can be charged, as a shareholder, with the statutory liability for debts.” The conclusion reached was, that Stevens was, in law, a “shareholder” of the bank, at the time of its failure, and as such was liable in an action at law. In the case of Houghton v. Hubbell, 33 C. C. A. 574, 91 Fed. 453, it was held that the real owner of certain shares of stock in a national bank, which, by his procurement or permission, stood on the books of the bank, in the name of an agent, and had never been in his own name, may be charged as a shareholder for an assessment made on the bank’s insolvency, and the receiver of the bank may bring an action at law for the collection of such assessment against the real owner. In this case the Court said: “Assuming that an assessment could have been successfully maintained against the agents who stood upon the bank records as owners, still the comptroller might properly, in his discretion, elect to pursue directly the actual known owner. In doing so in this case, the comptroller elected the more equitable of the legal remedies, and the one which sensibly avoided circuity of action and unnecessary litigation, by striking at once the source upon which, if no exceptional circumstances exist, and necessary remedies were employed by the agents, the statutory burden must finally fall. It cannot be seen that any legal rule interposes, in a situation like this, to prevent reaching a result directly which admittedly can be reached indirectly. Neither can we see any prudential reason for pursuing an indirect legal course when a direct one is fairly and plainly open.” Ohio Valley Nat. Bank v. Hulitt, 204 U. S. 162, was an action at law, by the receiver of a national bank to enforce the statutory liability of the real owner of certain stock, who had listed it in the name of another. In this case the Court, in holding that the real owner of the stock could be held in the action at law, said: “As to such owner, the law looks through subterfuges and apparent ownerships and fastens liability on the shareholders to whom the shares really belong.” .

Is there any difference in principle between these cases, brought by receivers of national banks, under the provisions of the National Bank Act, and the case at bar? The bank cases heretofore referred to in this opinion were predicated upon section 5151, B. S. (U. S.). This section provides: “The shareholders of every national banking association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts and engagements of such associations, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares.” Section 3, art. 10 of the Constitution of Minnesota, upon which the liability of the defendant in this case is predicated, provides: “Each stockholder of any corporation, excepting those organized for the purpose of carrying on any kind of manufacturing or mechanical business, shall be liable to the amount of stock held or owned by him.” This provision of the Minnesota Constitution is certainly as broad as section 5151 of the Federal statutes.

In the case of Straw & Ellsworth Mfg. Co. v. Kilbourne Boot & Shoe Co., 80 Minn. 125, the Supreme Court of Minnesota passed upon the constitutionality of Laws of 1899, chapter 272 of the Minnesota Statutes, entitled “An Act to provide for the better enforcement of the liability of stockholders of corporations.” This is the act upon which the present suit is predicated. In this case, in speaking of the scope and effect of the act, the Court said: “The proceeding is not materially different from that authorized by the national banking act, except that under the latter the assessment is made by the comptroller of currency, while here the assessment is by the court in insolvency proceedings.” In passing upon the question as to the effect of the assessment order on the stockholders, the Court said: “But, as we have heretofore intimated, the stockholders are not concluded in all respects by the determination of the court, nor is that the fair meaning of chapter 272, sec. 5. A person sued as shareholder may show, if he can, that he is not a shareholder at all, or that he is not the holder of so large an amount of stock as is alleged, or that he has discharged his liability, or that he has a claim against the corporation which he may, in law or equity, set off against the claim or judgment in assessment, or he may make any other defense which is personal to himself.”

The defendant cites in support of his contention, the following cases: Edwards v. Schillinger, 148 Ill. App. 227; Hedlund v. Dewey, 105 Fed. 541; Bowden v. Johnson, 107 U. S. 251. In the case of Edwards v. Schillinger, supra, a trustee in bankruptcy filed a bill in chancery against certain stockholders to enforce stock liability. It was alleged in the bill that at a time when the corporation was insolvent a fraudulent dividend was declared to enable the defendants to make a fictitious payment for the unpaid remainder due on their stock, and the complainant asked to have such pretended payment declared fraudulent and set aside. The complainant further prayed that an accounting might be had of the assets and liabilities of the corporation and that the defendants should be decreed to pay their pro rata share of the indebtedness of the corporation. In that case it was contended by counsel for the defendants that the trustee in bankruptcy had an adequate remedy at law, by separate suits against the defendants. The court held otherwise. We do not think the case is in point. .In the ease of Hedlund v. Dewey, supra, the receiver of a national bank filed a suit in equity against a former stockholder of record in said bank, to recover unpaid stock liability, upon the ground that the transfer by defendant of said stock, prior to the appointment of the receiver, was fraudulently made for the purpose of avoiding such stock liability. The complainant in the bill asked a cancellation of said transfer, an entry of said stock upon the books of the bank in the name of the defendant, and a money decree against the defendant for the amount of the assessment against such stock. The defendant demurred to the bill, on the ground that, inasmuch as the receiver could ignore the fraudulent transfer and sue the defendant at lato, as the actual owner of said stock, the technical equitable relief, would, if granted, be useless and unnecessary and that, as the complainant had an adequate remedy at law, he (the defendant) should not be deprived of his right of a trial by jury, simply by reason of technical relief sought by the complainant in the equity proceedings. The case is a nisi prius one, and the decision of the judge follows: “I am of the opinion that, as the bill asks for relief to which the complainant is entitled, and which cannot be granted at law, equitable jurisdiction must be entertained, even though such relief may, as a matter of fact, be only of technical advantage to the complainant. The demurrer is overruled.” The opinion clearly recognized the right of the complainant to bring an action at law against the defendant. We fail to see how this case supports defendant’s contention. In the case of Bowden v. Johnson, supra, the receiver of an insolvent bank brought a suit in equity against the transferrer and the transferee of certain stock, to enforce the stock liability. The bill asked for discovery as well as for relief. The defendants in the case contended that it was not a case for equity, because a plain, adequate and complete remedy existed at law. In answer to this contention, the Court said: “This being a bill for discovery as well as relief, and the fraudulent transfer being good between the parties, and only voidable at the election of the plaintiff, it is clear that equity has jurisdiction to set it aside and enforce the liability of the transferrer.” This case does not hold that the complainant in the case had not the right to sue the defendants at law.

If, under section 5151 It. S. (U. S.), the real owner of stock, which stands by his procurement in the name of another, may be sued in an action at law to enforce the liability growing out of the ownership of the stock, we see no good reason why, in a like case, predicated upon section 3, art. 10 of the Minnesota Constitution, the same procedure may not be followed.

Finding no error in this record, the judgment of the Circuit Court of Cook county will be affirmed.

Affirmed.


author: Mr. Presiding Justice Baker

text:
    Wilmer A. Radzinski, Administrator, Appellant, v. Edward Ahlswede, Appellee.
    Gen. No. 18,878.
    1. Covenant, action of, § 8—propriety of pleas of nil debet and non damnificatus. In an action of covenant for breach of a contract under seal, pleas of nil dobet and non damnificatus held not adapted to the nature and form of the action nor conformable to a count in the declaration.
    2. Covenant, action of, § 1—when action lies. Action of covenant will lie only on a contract in writing under seal.
    3. Covenant, action of, § 1—when not proper form of action for breach of contract under seal. Action of covenant is not the proper form of action for breach of a contract under seal, if upon any ground it can be held that the agreement was modified by previous parol agreement on a point essential to the defendant’s liability.
    4. Pleading, § 115—when plea not an admission of cause of action. A plea which sets up matter not well pleaded and is no answer to the declaration cannot be considered an admission of the cause of action stated in the declaration.
    5. Contracts, § 360-—when issue cannot be talcen on a plea of performance. Plea of performance in an action on a contract under seal amounts to a plea of general performance when the declaration contains an assignment of a particular breach. Issue cannot be taken on a general plea of performance in such a case.
    6. Contracts, § 8—when void for uncertainty. An agreement so vague and indefinite that it is not possible to collect from it the full intention of the parties is void.
    7. Contracts, § 8—when contract for building uncertain. A written contract under seal whereby one party agreed to lease a building which the other party agreed to have erected upon plans to be drawn by third parties, held uncertain as to the kind of building the parties agreed should be built and that the party agreeing to lease could not recover for breach thereof, the writing making no reference to specifications and the sketch of the building and floor plan made before the execution of contract containing no sections or detailed drawings.
    8. Evidence, § 319—presumption as to contract in writing. Where parties have put their engagements in writing, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writing, and oral testimony of previous or contemporary conversations or declarations is rejected.

      Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Wendes, Judge, presiding.
    Heard in this court at the October term 1912.
    Affirmed.
    Opinion filed March 30, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Blum & Blum, for appellant.
    Charles T. Farson and Stern, Anderson & Davis, for appellee.

      Seo Illinois Notos Digest, Veis. XI to XV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

In an action of covenant there was a verdict and judgment thereon for the defendant and plaintiff appealed. Pending the appeal the appellant died and his administrator was substituted as appellant. The instrument under seal declared on is as follows:

“Articles of agreement made and entered into this 12th day of April, A. D. 1909, by and between Edward Ahlswede, party of the first part, and A. J. Radzinski, party of the second part, Witnesseth :

That whereas, the said Edward Ahlswede is the owner in fee simple of the following described real estate, situate in the City of Chicago, County of Cook and State of Illinois, to-wit: Lots fifteen (15), sixteen (16), seventeen (17) and eig’hteen (18) in Block three (3)' in Snowhook’s subdivision of that part of the east half of the northwest quarter and of the west 7.44 chains of the northeast quarter lying north of Mil-' waukee avenue, of section thirty-six (36), township forty (40) north, range thirteen (13) east of the third principal meridian.

And whereas, the said party of the second part is desirous of leasing of and from the said party of the first part a two-story and basement brick building to be erected upon the above described premises upon plans to be drawn by Fromann & Jebsen, which building is to cost in the neighborhood of thirty thousand ($30,000) dollars, and is to be finished and ready for occupancy on or before September 1, A. D. 1909, the time to be extended to complete said building only in case of strikes, alterations, fire or unusual action of elements.

And whereas the said Edward Ahlswede has agreed to erect a building upon said premises according to the plans and specifications so drawn by said Fromann & Jebsen:

And whereas, said party of the second part agrees to pay said party of the first part, as and for rent of said premises the sum of three hundred seventy-five and no/100 dollars ($375) per month for a term of five years, lease form Fo. 1262 made by the Chicago Legal News Company to be drawn and signed by both of the parties with a condition of an extension of said period of five years for a further term of five years, provided six months’ notice is given prior to the expiration of the first five years and at a rental of four hundred twenty-five and no/100 dollars ($425) per month.

The party of the second part is to pay all water taxes levied or assessed upon said premises; said party of the second part agrees to occupy said premises as and for a general merchandise stock.

The party of the second part hereby agrees to pay to the party of the first part the sum of five thousand dollars, as and for and as agreed liquidated damages for failure to perform on his part the terms of this agreement to be performed by him.

This agreement is to be binding upon the heirs, executors, administrators and assigns of the respective parties hereto.

In Witness Whereof, the parties hereto have hereunto set their hands and seals the day and year first above written.

Edward Ahlswede, (Seal.)

A. I. Radzinski, (Seal.) ”

The declaration avers that previous to the execution of the writing a sketch of the proposed building was shown to plaintiff by defendant, “and everything in relation to said building agreed on. ’ ’

The pleas were, first, nil debet; second, performance; third, non damnificatus; and, fourth, that it was an express condition of “said writing obligatory and in the negotiations leading up to the same” that the building therein mentioned could be built according to the plans drawn by Fromann & Jebsen at a cost in the neighborhood of $30,000, but that it was found that it could not be built at such cost, “but the cost of erecting such building would be, to wit, $50,000, and that because thereof a higher rate of rental would have to be charged, which higher rental the plaintiff refused to pay.” The pleas except the ¿first concluded with a verification. The replications to the second, third and fourth pleas traverse the averments of the pleas. The pleas of nil debet and non damnificatus are not adapted to the nature and form of the action nor conformable to the count and there was no issue properly joined on them. The second plea amounts to a plea of general performance when the declaration contains an assignment of a particular breach. Issue cannot be taken on a general plea of performance in such a case. , But if the matter is not well pleaded and is no answer to the breach assigned in the declaration, it cannot be considered an admission of the cause of action stated in the declaration. Simonton v. Winter, 5 Pet. (U. S.) 141. The issue joined then was on the declaration which, in effect, averred that a previous oral agreement, outside of the writing declared on, was made by the parties in relation to the building to be erected, and a plea, which in terms averred that a certain provision in relation to said building not contained in the instrument declared on, “was an express condition of the said writing obligatory and of the negotiations leading up to entering into the same. ’ ’ ■

No rule is better settled than that where parties have put their engagements in writing it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writing, and oral testimony of previous or contemporary conversations or declarations is rejected.

The action of covenant will lie only on a contract in writing under seal. If on any ground it can be held that the agreement under seal declared on was modified by previous parol agreement, or that it was modified by a subsequent parol agreement, on a point essential to the defendant’s liability, covenant is not the proper form of action for the breach.

If an agreement be so vague and indefinite that it is not possible to collect from it the full intention of the parties, it is void, for neither the court nor the jury can make an agreement for the parties. Here all that was shown to the plaintiff at or before the time the writing under seal was executed was a sketch of the front of the building and a ground or floor plan. Neither the sketch nor the floor plan contains any sections or detailed drawings. The writing declared on states that the building is to be erected “upon plans to be drawn by Fromann and Jebsen,” and the plans were not drawn until a month or longer after the writing declared on was executed. The writing makes no reference to specifications. We do not think that it can be ascertained with any reasonable certainty from the writing taken in connection with the sketch and floor plan shown to the plaintiff before the writing was executed, the kind of a building the parties agreed should be built, and that this is an uncertainty which must prevent a recovery by the plaintiff.

We think that on the record the judgment for the defendant was proper, and it is affirmed.

Affirmed.


text:
    Samuel B. Geiger, Appellant, v. Finley Barrell et al., Appellees.
    Gen. No. 18,894.
    1. MumciPAi. Court of Chicago, § 13

      —effect of filing amended statement of claim. The filing of an amended statement of claim, as distinguished from the amendment of a previously filed statement, is in effect a substitute for statements previously filed, and is regarded as the only statement of claim in the case.
    2. Limitation of actions, § 56

      —when matters set up in amended statement of claim subject to bar. Matters set up in an amended statement of claim filed in an action in the Municipal Court are subject to the bar of limitations, since the effect of the filing of such a statement is to supersede previously filed statements.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 30, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    A. G. Dicus, for appellant.
    Frederick Sass, for appellees.

      Seo Illinois Notes Digest, Vols» XI to XV, same topic and section number.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

May 18, 1910, plaintiff, Geiger, brought an action of the first class against defendants in the Municipal Court. In his statement of claim plaintiff stated that his claim was for money had and received by defendants of plaintiff and for certain shares of stock had and received by defendants and converted to their own' use. Pursuant to an order to file a more specific statement of claim, plaintiff, June 11, 1910, filed an amendment to Ms statement of claim, which stated the respective amounts received by defendants and the dates when received. June 27, 1910, plaintiff filed “an amended statement of claim,” which states that the money was advanced and stock delivered to the defendants to cover losses at gaming or gambling in grain under an agreement between the parties therein set forth. November 12, 1911, plaintiff filed a “second amended statement of claim,” which alleged that the money was advanced and the stock was deposited to cover losses at gambling in grain and in the capital stock of corporations. Defendants filed an affidavit of defense to this claim, in which it is stated “that the statute of limitations had run against plaintiff’s cause of action as set forth in his second amended statement of claim, filed November 13, 1911.” When the canse was reached for trial the plaintiff moved the court to strike from the files the amended affidavit of merits of the defendants so far as it related to the statute of limitations. The motion was denied and the plaintiff, by Ms counsel, announced that he elected to stand by his motion, the demands for a trial by jury were withdrawn by the parties and the cause submitted to the court. The plaintiff offered no evidence, the court entered a judgment of nil capiat and plaintiff appealed.

The statement of claim filed November 13, 1911, was an amended statement of claim, not an amendment to any statement of claim theretofore filed. The effect of filing an amended statement of claim is to substitute it for the statements of claim theretofore filed, and it is regarded as the only statement of claim in the case. We think that the court properly denied plaintiff’s mo, tion to strike from the files the amended affidavit of merits of the defendants so far as it related to the statute of limitations. It follows from what has been said, that in our opinion the judgment of nil capiat was proper, and it is affirmed.

Judgment affirmed.


text:
    Joseph Siebert, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,918.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Pato. McWilliams, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 30, 1914.
    Statement of the Case.
    Action by Joseph Siebert against CMcago City Railway Company to recover damages for personal injuries due to the premature starting of defendant’s car as plaintiff was in the act of alighting. From a judgment for plaintiff for one thousand five hundred dollars, defendant appeals.
    Abstract of the Decision.
    1. Carriers, § 476

      —sufficiency of evidence to sustain verdict for passenger injured in alighting. Evidence held sufficient to show that plaintiff was thrown from defendant’s car as the result of its being started as he was in the act of alighting, and that in so starting the car the motorman was guilty of negligence and plaintiff was free from contributory negligence.
    2. Carriers, § 452

      —sufficiency of declaration to charge premature starting of car. In an action by a passenger for personal injuries, an allegation that while plaintiff was alighting from the car the defendant, in response to the gong sounded as a signal for the car to be started, “hurriedly, quickly and suddenly started said car,” and thereby plaintiff was thrown.from the car, is sufficient to cover the premature starting of the car without a jerk as plaintiff was in the act of alighting.
    3. Appeal and error, § 1542

      —when instruction submitting improper element of damage harmless. In an action by a passenger for personal injuries where the declaration contained no averment of mental suffering and no proof thereof was introduced and instruction that plaintiff might recover for “his suffering in mind” is improper, but was held not to have been prejudicial.
    James G. Condon and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    Edward J. Green, for appellee.

      Sre Illinois Notes Digest, Veis. XI to XV, same topic and Section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    P. W. Walsh, Appellee, v. City of Chicago, Appellant.
    Gen. No. 18,929.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Contracts, § 322

      —what constitutes a breach of contract to furnish seaworthy boats in transportation of garbage. In an action on a contract for the transportation of garbage under which plaintiff agreed to furnish seaworthy boats, an affidavit of defense alleging that the boats furnished by plaintiff were not seaworthy and as a result one of them sank carrying with it garbage boxes owned by defendant City and obstructing the harbor, putting defendant to the expense of raising it, is sufficient to show a breach of contract by plaintiff.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 30, 1914.
    Statement of the Case.
    Action by P. W. Walsh against City of Chicago to recover the amount claimed to be due on a contract for the transportation of garbage. Defendant’s affidavit of defense alleging that plaintiff violated the contract by furnishing unseaworthy boats, as a result of which one of them sank while loaded with garbage boxes owned by it, obstructing the harbor and it was necessary to raise same at an expense to defendant of $347.80, was stricken from the files and judgment rendered for plaintiff for $1,200, from which defendant appealed.
    William: H. Sexton, for appellant; Leon Hornstein, of counsel.
    Henry John Toner, for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

2. Set-off and recoupment, § 18 —when damages for "breach of contract may be recouped. In an action against a City on a contract for the transportation of garbage under which plaintiff agreed to furnish seaworthy boats, defendant may recoup damages caused by the sinking of one of the boats, owing to its being unseaworthy, carrying down with it garbage boxes owned by defendant, obstructing navigation and putting defendant to the expense of raising it.


text:
    William S. Tait, Appellee, v. Chicago Structural Tile Company, Appellant.
    Gen. No. 18,941.
    (Not to be reported in full.)
    Abstract of the Decision.
    Master and servant, § 82

      —admissibility of evidence in suit for salary and expenses. In an action against a corporation to recover for money laid out and for salary due, where the contract of employment was in writing and did not provide that-the corporation should pay for certain expenses of plaintiff, exclusion of testimony of the president of the corporation that in a conversation with plaintiff he told plaintiff not to expend any money on behalf of the company as an expense account without his orders, held reversible error.

      Appeal from the Circuit Court of Cook county; the Hon. Virgil W. Mills, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 30, 1914.
    Statement of the Case.
    Action by William S. Tait against Chicago Structural Tile Company to recover for expenses laid out by plaintiff and for salary due as manager of the defendant corporation. From a judgment in favor of plaintiff for $441.13, defendant appeals.
    Stedman & Soelké, for appellant.
    No appearance for appellee.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Gertrude Wimmer, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 18,960.
    1. " Carriers, § 480

      —negligence in operation of street car is question of fact. What constitutes negligence in the operation of a street car is a question of fact, not one of law.
    2. Carriers, § 491

      -—when instruction as to care required in stopping street ear for passenger to alight, erroneous. In an action against a street railway Company 'to recover for personal injuries resulting from a sudden jar or jerk of the car while plaintiff was upon the rear platform and after she had given a signal to stop at a crossing, an instruction given for plaintiff which in effect told the jury that failure to stop the car by a gradual slowing down of speed or to bring the car to a gradual stop in order to enable it to stop at the next street crossing was negligence, held erroneous as declaring it to be the absolute duty of defendant to bring the car to a gradual stop when .as a matter of law its duty was to exercise the highest degree of care.
    3. Carriers, § 484

      —when instruction as to care required in controlling street car erroneous. In an action for injuries resulting from defendant’s negligence in stopping its car for plaintiff to alight, an instruction given for plaintiff which told the jury that it was defendant’s duty “to so control and manage the car as not to endanger her safety,” held erroneous as placing upon the defendant the duty of an insurer.
    Appeal from the Circuit Court of Cook county; the Hon. Richard g. Ttjthill, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 30, 1914.

      Ira C. Wood and William H. Symmes, for appellant; John B, Q-uilliams and Frank L. Kriete, of counsel.
    Meads & Ayer, for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant street railway Company from a judgment for five thousand dollars recovered by plaintiff Wimmer for personal injuries alleged to have been sustained by reason of the negligence of the defendant. Plaintiff was a passenger in a car of the defendant running west in Twelfth street, and desired to stop at Spring-field avenue. She fell from the car when it was about two hundred feet east of Springfield avenue and thereby suffered the injuries for which she sued. Her contention is that she gave a signal for the car to stop at Springfield avenue, passed to the rear platform of the car and stood on it two feet back from the outer edge, holding on to the rail at the rear of the car with her right hand and facing north, and that when the car was about two hundred feet from Spring-field avenue there was an “unusual jar or jerk” and she was thrown from the car. This contention is supported only by the testimony of the plaintiff. For the defendant, the motorman, the conductor and a passenger testified that there was no unusual jar or jerk in the movement of the car.

The court gave for the plaintiff the following instructions :

“2. You are instructed, as a matter of law, that when a common carrier is stopping* a street car for the purpose of permitting its passengers to alight at a regular or usual stopping place, it is the duty of the party or parties in charge of said car to cause said car to be stopped by a gradual slowing down of speed so far as from all the evidence you find this was necessary. If you believe from the evidence in this case that the defendant was operating this car; and if you further believe that in response to the plaintiff’s request the defendant attempted to stop this car at a usual and customary place for permitting passengers to alight; then and in that case it became the duty of the defendant to bring the car to a gradual stop in order to enable it to stop at the next street crossing. If, in addition to the foregoing, you further believe that the defendant through its employe or employes caused this car to be suddenly stopped or to be suddenly jerked and jolted, and if you believe from the evidence such jar or jerk was the proximate cause of the injury complained of herein, then you may find the defendant did not exercise reasonable care in bringing this car to a stop and was accordingly guilty of negligence.
3. If you believe from the evidence in this case that the plaintiff was obliged to step to the back platform of the defendant’s car in order to signal that she wished to alight at the next stopping place; if you further believe that she did so notify the conductor that she wished to so alight; if you further believe that the said conductor thereupon signalled the motorman to stop the car; then and in that case you are instructed that it became and was the duty of the defendant to make such stop and in so doing to so control and manage said car as not to endanger her safety, providing she was using reasonable care on her part.”

What constitutes negligence in the operation of a street car is a question of fact, not one of law. The court may properly instruct the jury that the duty the Company owes to a passenger is to exercise the highest degree of care consistent with the mode of conveyance adopted, and the practical operation of the road, but may not tell the jury that it is the duty of the defendant to cause the car to be stopped “by a gradual slowing down of speed” or that upon receiving a signal from a passenger to stop the car “it became the duty of the defendant to bring the car to a gradual stop in order to enable it to stop at the next street crossing',” because the effect of such instructions is to tell the jury that a failure to stop the ear by a gradual “slowing down of speed” or “to bring the car to a gradual stop in order to enable it to stop at the next street cross.ing” was negligence. The instruction is also erroneous in this, that it declared it to be the absolute duty of the defendant to bring the car to a gradual stop, when, as a matter of law, its duty was to exercise the highest degree of care in stopping the car.

The third instruction is erroneous for the same reasons that the second instruction is erroneous and for the further reason that it told the jury that in stopping the car it was the defendant’s duty “to so control and manage the said car as not to endanger her safety.” The effect of this instruction was to place upon the defendant the duty of an insurer, when, as has been said, its duty under the law was to exercise the highest degree of care to avoid injuring the plaintiff.

In view of the evidence in this record we think that in giving said instruction there was. reversible error, and for that error the judgment is reversed and the cause remanded.

Reversed and rema/nded.


text:
    Luella Rasmussen, Appellee, v. Julia F. Drake, Executrix, Appellant.
    Gen. No. 18,992.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Cecahles H. Bowles, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 30, 1914.
    Statement of the Case.
    Action by Luella Rasmussen against Frederick J. Drake for injuries sustained by plaintiff caused by being struck by an automobile of the defendant through, the alleged negligence of a servant of defendant, the driver thereof. From a judgment in favor of plaintiff for two thousand five hundred dollars, defendant ap,pealed. Pending the appeal, Drake died and his executrix was substituted as appellant.
    Abstract of the Decision.
    1. Automobiles and gabages, § 3

      —questions for jury. In in action for personal injuries resulting from being struck by defendant’s automobile driven by a servant of defendant, it appearing that the automobile was following a street car and that plaintiff was struck after she had alighted from the car, held that the questions whether the automobile was negligently operated and whether the plaintiff was guilty of contributory negligence were questions of fact upon which the verdict of the jury was conclusive.
    2. Automobiles And gabages, § 3

      —when operation of automobile by defendant is admitted, by the pleadings. In an action for injuries resulting from being struck by defendant’s automobile, the operation of the automohile by the defendant is admitted when the only plea filed is a plea of not guilty.
    3. Appeal and ebbob, § 1309

      —when material fact will not be regarded as put in issue by the pleadings. Where in an action for injuries resulting from being struck by defendant’s automobile the question of the operation of the automohile by the defendant was not put in issue by the pleadings and the only evidence on that point was the testimony of a witness called by the plaintiff as to a conversation between the witness and the defendant, held that the case does not come within the rule that where a material fact is treated as in issue by both parties, and evidence was offered on the one side to maintain and the other to controvert such fact, it will be regarded by a court of review as put in issue by the pleadings.
    Day & Guenther, for appellant.
    Charles C. Spencer, for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.