text:
    Mae Kalman, Administratrix, Plaintiff in Error, v. Max Cohen et al., Defendants in Error.
    Gen. No. 6,255.
    1. Negligence, § 19

      —what constitutes an attractive nuisance. To bring a case within the attractive nuisance doctrine, the dangerous thing must be so located as to attract children from the street or some public or other place where they may be expected to be, and an owner would not be liable if he maintained something for his own use which might be dangerous but would only be found by children going on his premises as trespassers.
    2. Negligence,. § 125

      —when declaration insufficiently alleges existence of attractive nuisance. Where the declaration alleged the defendants possessed a building in which they stored old rags, saturated with grease, and old papers, with open doors; that the contents were attractive to children; that they, with defendants’ knowledge, were accustomed to play among such contents; that plaintiff’s intestate was a child six years old and was killed while playing in such building by a fire starting therein from a locomotive engine or blast furnace in the vicinity, held that there was nothing.dangerous to children about such contents of the building and no liability to injury from children playing with such contents, .and demurrer to the declaration was properly sustained.
    Error to the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 12, 1916.
    C. M. Huey and Hanley & Cox, for plaintiff in error.
    Safford & Graham, for defendants in error.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Mae Kalman, administratrix, sued Cohen Brothers for causing the death of Sol Kalman, her intestate. A demurrer to an amended declaration of nine counts was sustained, plaintiff abided by her declaration, and defendants had judgment in bar, from which plaintiff prosecutes this writ of error. Bach count charged sufficiently that defendants possessed a building in the City of Monmouth in which they had stored old rags saturated with grease, and old papers; that the doors of the building were open; that its contents were attractive to children of tender years; that such children were with the knowledge of defendants accustomed to enter said building and to play among said papers and rags; that said child was only six years old and was attracted to said building by said contents; and that while playing there, said rags and paper caught fire and he was burnt and thereby lost his life. Some counts averred that he was too young to exercise any care for his own safety and others that he exercised such care as a child of that age would exercise.

Some allegations are clearly insufficient. One count charged that the fire was caused by spontaneous combustion of said rags and paper, without any fact being averred which should charge defendants with a knowledge that it might be so ignited. Another count charged that the fire was caused by accident, without stating any fact to charge defendants with notice that a fire might be so caused. Several counts set up an ordinance of the City of Monmouth requiring dealers in old iron, rags and paper to take out licenses as junk dealers and averred that defendants had not taken out such a license. The ordinance was not intended for protection against fire and no fact is alleged tending to show that this fire was caused by the lack of a license. One count charged that west of the building were old iron and junk which made it difficult to get to the building from a certain street and prevented people from reaching the building on the west when the fire occurred. These allegations contained nothing to charge defendants with liability for the death of this child. One count implies that the father of the child owned the building. It either must be understood from that count that defendants were lawfully occupying the building or else that it was the duty of the father to keep the doors closed. With these charges ignored, there still remain counts which contain a part of the elements required by the law, as laid down in what are known as the “turntable” eases, and it must be conceded that the decisions- in this State are very liberal to children injured because of attractive nuisances. Two elements, however, required in McDermott v. Burke, 256 Ill. 401, are omitted from this declaration. It is there held that the dangerous thing must be so located as to attract children from the street or from some public or other place where they may be expected to be, and that an owner would not be liable if he maintained something for his own use which might be dangerous but which would only be found by children going upon his premises as trespassers. No allegation in this declaration shows deceased attracted into this building from the street or from the premises where his parents lived in front of this building. It is also there held that it is essential to liability in such a case that the attractive thing or something inseparably connected with it must be the proximate cause of the injury. Here the cause of the injury alleged in all the counts in which defendants might otherwise be liable was a spark from a locomotive engine or from a blast furnace in the neighborhood. There was nothing dangerous to children about the old rags nor. the old papers and nothing is charged that would make a child liable to injury by playing with the contents of the building. In this respect this case is wholly different from the “turntable” cases. Probably every bam in the country contains things attractive to children, but it does not follow therefrom that the owner is obliged to keep its doors closed or barricaded under the penalty of being liable if a tender child is injured therein. We are of opinion that the demurrer was properly sustained.

The judgment erroneously awarded execution against the administratrix, but that error is not argued nor assigned for error and it is therefore waived. The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Alfred M. Swengel, Administrator, Appellee, v. Illinois Third Vein Coal Company, Appellant.
    Gen. No. 6,264.
    1. Mines and minebals, § 92

      —what is insufficient refuge place. Under section 21 (b) of the Act of April 18, 1899, as to mines and miners (J. & A. i 7489), requiring places of refuge two and one-half feet deep in side walls or a clear space two and one-half feet wide between the car and- the rib, a clear space on one side only of a passageway is sufficient, but a clear space of two and one-half feet between tracks, both of which were being used, is not a compliance with the act where such space is accustomed to be used in travel by the car mules.
    2. Death, § 45

      —when whole of coroner’s verdict is admissible. The whole of a coroner’s verdict is competent evidence in an action to recover damages for death, although containing a finding that the jury “finds no blame” on the defendant in the action.
    Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed October 12, 1916.
    McDougall, Chapman & Bayne, for appellant; Mas-tin & Sherlock, of counsel.
    J. L. Spaulding and J. L. Murphy, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

On April 7, 1907, Ricardo Milani was killed in the mine of the Illinois Third Vein Coal Company at Ladd, while he was in the employ of said company as a coal miner. His administrator brought a suit against said company in the Circuit Court of Bureau county to recover damages for the benefit of his next of kin. That case was tried and a judgment for plaintiff was reversed by us and the cause was remanded in Swengel v. Illinois Third Vein Coal Co,, 154 Ill. App. 409. This record does not show what was afterwards done with that suit, but a special plea filed in this case and setting up the former proceeding was withdrawn and is not abstracted nor relied upon. This suit was begun by the widow of Milani in supposed compliance with the statute then existing and, upon a change in that legislation, the administrator was substituted for the widow as plaintiff. Neither side raises any question because of the pendency or result of the former suit. The case went to a jury on the first and third counts of the declaration, as amended, and the general issue. Plaintiff had a verdict and a judgment for $3,000, and defendant appeals.

When this accident occurred, the Act of April 18, 1899, concerning mines and miners, was in force. Section 21 (b) was as follows (J. & A. j[ 7489):

“On all hauling roads or gangways on which the hauling is done by draft animals, or gangways whereon men have to pass to and from their work, places of refuge must be cut in the side-wall at least two and a half feet deep, and not more than twenty yards apart; but such places shall not be required in entries from which rooms are driven at regular intervals not exceeding twenty yards, and wherever there is a clear space of two and one-half feet between the car and the rib, such space shall be deemed sufficient for the safe passage of men. All places of refuge must be kept clear of obstructions and no material shall be stored nor be allowed to accumulate therein.”

The first count charged a failure to have such places of refuge where Milani was killed. The third count alleged the failure to give signals or warning of certain dangerous conditions, as required by another part of said statute. In one place in this count the word “not” is omitted, but it is agreed that the case shall be treated as if it were inserted so as to make that clause read, “not under the direction of the mine manager.”

At the bottom of the shaft in this mine two car tracks go north and two go south. The shaft is double and when one cage is at the bottom the other is at the top. At the bottom of the shaft the place where the two tracks are north of the shaft is called the north bottom, and where the south tracks are is called the south bottom. On the north bottom the west track is for cars loaded with coal and ready to go to the top, and the east track is to receive empties that come down. When the west cage descends it has on it one or two empties. Loaded cars from the north are pushed on to the west cage and their force drives the empty cars south. When the east cage descends it brings empty cars, and loaded cars from the south bottom are pushed on to that cage and this forces the empties to the north. The north bottom with two tracks extends from two hundred and fifty to three hundred feet north from the cage and then they merge into one track which proceeds out towards the face of the coal, and it has many switches turning in various directions. Several hundred men were working in this mine and were taken down in cages between 6:30 and 7:00 a. m., and no miners were taken down after 7:00 a. m. The whistle was blown at 7:00 a. m. for the men to go to work. Most miners left their tools in the mine. When a miner left his tools on top they were taken down in an empty car after the men had all gone -down, and such miner had to wait at the shaft bottom after 7:00 o’clock for his tools to come. On the morning in question Milani’s tools were at the top and he waited at the bottom for them, and they came down a few minutes after seven in an empty car, which was put off on the north side. When the. work began at 7:00 a. m. the empty track on the north bottom had several empty cars on it, which were to be taken to the face of the mine, and it had three cars south of those empty cars which had been loaded with coal and refuse from the sump during the night. A driver came with a team, fastened the empties to those three loaded cars and took them all north beyond the bottom. Another driver, Cramer, with a team of five mules, traveling tandem, as all teams in the mine did, hitched on to those three loaded cars and went south with them on the west or loaded track. The mules did not travel between the rails of that track but in the space between- the two tracks. As this trip went south, Milani and four other miners'were coming north in the same space between the two tracks, each of them carrying a light. There was a light on the head mule and another on the driver’s cap, the proof in this respect being different from that in the former case. Milani called out, “A team is coming,” and turned to the west towards the loaded track. A man behind him called out, “A trip is coming. ’’ By “team” Milani apparently meant that he supposed it was a team of mules not attached to any car. If it had been only a team Milani would have been safe in turning to the west, but after something like two mules had passed to the east of him he apparently discovered the cars and started on the run to the south and something knocked him down onto the east rail of the west or loaded track and he was caught, either, between the stationary cars and the cars of the trip, or by the head car of the trip, and was killed. Of the other men, one went to the west to a place between the timbers next to the rib, another went to the east over the empty track, a third got into an empty car on the empty track, and the fourth escaped by running towards thp shaft,

There were no places of refuge along this north bottom. The main question is whether there was the clear space of two and one-half feet required by the statute above quoted. There was not such a space between the outside rail of either track and the rib next to it. The gauge of each track was three feet and two inches. The space between the two tracks was more than two and one-half feet. The coal cars did not extend over the rails. Defendant contends that the space between the tracks was the clear space required by the statute, and also that the east track was the clear space required by the statute. We must regard it as settled by Cook v. Big Muddy-Carterville Min. Co., 249 Ill. 42, that there need not be a place of refuge or a clear space of two and one-half feet wide on both sides of such a passageway, and that a clear space on one side is sufficient. That case has some tendency to show that such a space between the tracks can be considered a clear space, but upon careful consideration we think it should not be sp treated here. The object of this statute is to enable a miner going to or coming from his work in a way where cars of coal and empty cars are hauled to be able to protect himself from injury if he meets or is overtaken by cars being hauled on such track. In the ordinary narrow passageways in a mine the mules must travel between the two rails on which the cars they are hauling run. The proof appears to show that in this north bottom the mules were accustomed to travel in the space between the two tracks. The only time when the miner going to or coming from work in a passageway needs to be protected is when a trip of loaded or empty cars is approaching him from the front or coming up behind him. At every such time the space between these two tracks in this north bottom is not clear space and cannot be used by the traveling miner for that purpose. It is not enough that it is a clear space when no trips are going in either direction. If it had been a custom of the mules at that bottom to travel between the rails of the track on which the cars they were hauling were traveling, then this space between the two tracks might fairly be considered a clear space, but under the circumstances which appear to be shown by the evidence we hold it was not. If the east track was entirely free of cars, then it was a clear space, but the evidence places that in doubt. When the trip already spoken of went north, it did leave that east track vacant. When Milani’s tools came down a few minutes later an empty car was set on this track. A witness testifies that immediately after the accident to Milani there were at least six empty cars standing upon that track. If they were anywhere near where this trip was when Milani discovered it so that that space was occupied, then it was not a clear space. If, on the other hand, those empties were in fact not there or were far south of Milani, then that east track may have been a clear space. On that subject the evidence was contradictory and the jury found for plaintiff.

There is, however, an error that requires a reversal. A coroner’s inquest was held upon the death of Milani and a verdict was rendered which contained, among other things, the following: “According to the evidence the jury finds no blame on said coal company,” the reference being to appellant. By the twenty-eighth instruction, given for the plaintiff, the jury were told that this finding is in excess of the duties and powers of that jury and is not evidence, and has no bearing on the case and should be absolutely disregarded. In Devine v. Brunswick-Balke-Collender Co., 270 Ill. 504, a coroner’s verdict was offered in a death case, which found that the driver of a truck of the defendant which caused the injury “was blameless for the unfortunate occurrence.” The trial court admitted the entire verdict, and it was there argued that the portion above quoted was beyond the powers of the coroner’s jury. It was held that the whole verdict was competent evidence. Following that decision we must hold that the whole of the present coroner’s verdict was competent evidence, and that it was error to give the instruction just referred to. The verdict was produced by the man who was coroner at the time of the accident, and it bore upon it a file mark by “II. Fuller, Clerk.”- It is argued by appellee that there is nothing to show that H. Fuller was the clerk of the Circuit Court. The plácito, to the record before us shows Henry Fuller clerk, and his name is signed to the filing of the documents in the record. Appellee argues that the case is so clear for plaintiff that we should not reverse on account of this error. We are of opinion that the question whether the east track was empty and therefore afforded a clear space is doubtful under the evidence, and that we cannot say how much importance the jury would have given to this portion of the coroner’s verdict if it had not been withdrawn from their consideration. A strong argument is made against the competency of such evidence. Its competency has been established by many decisions in this State, and relief therefrom cannot now be had in the courts.

Several other instructions are criticized, but we assume that the suggestions made by counsel will cause them to be more carefully prepared at another trial without our discussing them. Many of the refused instructions were properly refused because of defects therein.

For the giving of the instruction concerning the coroner’s verdict, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Otto Kannenberg, Appellee, v. Deere & Mansur Company, Appellant.
    Gen. No. 6,290.
    1. Workmen’s Compensation Act, § 13

      —when appeal lies from decision of Circuit Court in arbitration case. An appeal lies from the decision of the Circuit Court under the Workmen’s Compensation Act of 1911, in an arbitration case appealed to the Circuit Court.
    2. Workmen’s Compensation Act, § 12

      —when instruction on right to recover for hospital bill is erroneous. In proceedings in the Circuit Court to recover compensation under the Workmen’s Compensation Act of 1911, upon appeal from the decision of a board of arbitrators, an instruction under section 5, clause (a) of the Act (J. & A. If 5453), held erroneous where there was no proof that there was a hospital bill for which the employee was liable and of the amount thereof.
    3. Workmen’s Compensation Act, § 7

      —when recovery may be had, for permanent disfiguration and permanent incapacity. Recovery may be had under both section 5, clause (c) of the Workmen’s Compensation Act of 1911 (J. & A. 1f 5453), and clause (d).
    4. Workmen’s Compensation Act, § 12

      —when instruction on amount of recovery for partial permanent disfigurement is erroneous. In proceedings in the Circuit Court for compensation under the Workmen’s Compensation Act of 1911, upon appeal from the decision of the board of arbitrators, an instruction under section 5, clause (c) (J. & A. If 5453), that the damages allowed should not be less than $375, held to be erroneous.
    5. Workmen’s Compensation Act, § 2

      —what is liability of employer under Act of 1911. The liability of an employer under the Workmen’s Compensation Act of 1911 is a contract liability.
    6. Workmen’s Compensation Act, § 12

      —what should be form of verdict in Circuit Court on appeal from decision of board of arbitrators. The form of a verdict for the plaintiff in proceedings for compensation under the Workmen’s Compensation Act of 1911, upon appeal to the Circuit Court from a board of arbitrators, should be to find the issues for the plaintiff, etc.
    7. Workmen’s Compensation Act, § 13

      —when verdict in Circuit Court upon appeal from decision of board of arbitrators is not reversibly erroneous. A verdict of guilty in the Circuit Court m proceedings for compensation under the Workmen’s Compensation Act of 1911, upon appeal from the decision of a board of arbitrators, is a mere irregularity, and does not constitute reversible error.
    8. Workmen’s Compensation Act, § 12

      —when court may distribute amounts allowed as lump sum in verdict. Where a verdict in the Circuit Court upon appeal from the decision by a board of arbitrators under the Workmen’s Compensation Act of 1911 is in a lump sum, the court may properly distribute it where there is no dispute as to the amounts that should be allowed if plaintiff recovered.
    9. Workmen’s Compensation Act, § 12

      —what is preferable form of verdict. Where, by a judgment for the employee to be entered in the Circuit Court in proceedings for compensation under the Workmen’s Compensation Act of 1911, upon appeal from the decision of a board of arbitrators, one or more amounts are to be paid at once and other sums in instalments over several years, the preferable practice is for the jury to find each item separately as well as to return a verdict for a total amount.
    Appeal from the Circuit Court of Rock Island county; the Hon. William T. Church, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed October 12, 1916.
    Dietz & Sihhett, for appellant.
    J. B. & J. L. Oakleae and J. T. & S. B. Kerworthy, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court

There was an arbitration between the parties to this suit under the Employers Liability Act of 1911, and an allowance to Kannenberg, the employee, of $888.72, and an appeal therefrom by Deere & Mansur Company, the employer, to the Bock Island Circuit Court, where the cause was tried by a jury and a verdict was rendered in favor of Kannenberg for $1,803.24. A motion for a new trial by defendant was denied and a judgment was rendered that plaintiff recover from defendant $701.46, being weekly payments to the date of the judgment at $4.33 per week, and the further sum of $1,101.78, to be paid plaintiff at the rate of $4.33 per week for 254 weeks, the first payment to be made December 28th, 1915, and a like sum thereafter each week until the whole amount was fully paid, and that plaintiff have execution for said $701.46, and for the different payments as they became due. The slight error in the computation is cured by the general language in the judgment. This is an appeal by defendant from that judgment.

Appellee moved to dismiss the appeal and we took that motion with the case. Appellee claims that no appeal lies from the decision of the Circuit Court under said Act of 1911. We discussed that question in Carlson v. Avery Co., 196 Ill. App. 262, and we there held that such an appeal did lie. Thereafter the Supreme "Court disposed of the same question in the same way in Lavin v. Wells Bros. Co., 272 Ill. 609. The motion is therefore denied.

The compensation for appellee is measured by section 5 of said Act (J. & A. If 5453). Instruction No. 3, given at the request of appellee, authorized a recovery under each of clauses (a), (b), (c) and (d). It was error to permit a recovery under clause (a), for the reason that there was no testimony under which the jury could find for appellee as to that clause. There was proof that appellee was in a hospital a certain number of weeks. What the hospital charges were or what would be reasonable charges was not shown. Appellee testified that he supposed that it was paid, but that he did not pay it. In the absence of proof that there is a hospital bill for which he is liable, and the amount thereof, it was error to give that part of the instruction.

It is contended that there cannot be a recovery under both clauses (c) and (d). A forcible argument is made in support of that position, bnt we held that there could be such a recovery under both of those clauses in Stevenson v. Illinois Watch Case Co., 186 Ill. App. 418 [5 N. C. C. A. 858], and Watters v. P. E. Kroehler Mfg. Co., 187 Ill. App. 548 [8 N. C. C. A. 352]. We did say in the Watters case that there could be no recovery under clause (d), but the opinion shows that the reason was that the evidence disclosed that when the plaintiff there returned to work after the injury he was able to earn as much or more wages than before. No doubt the trial judge in this case ruled in that respect in conformity with our decisions, and we do not feel disposed to reconsider that ruling until the Supreme Court holds otherwise.

In directing the jury what should be allowed under clause (c), the instruction directed them to allow in no event less than $375 nor more than $875. Clause (c) allows the employee a reasonable compensation, not exceeding one-fourth of the compensation in case of death. This refers to clause (a) of section 4 (J. & A. ]f 5452). The highest sum allowed thereby in case of death is $3,500, and one-fourth thereof is $875, but clause (c) of section 5 (J. & A. 5453) contains no authority for requiring that not less than $375 should be allowed for the serious and permanent disfigurement proved in this case. That part of the instruction is erroneous.

The jury found the defendant guilty and it is contended that the form of verdict should be that the jury find the issues for the plaintiff, etc. The liability of an employer under the act here in question is a contract liability (Lavin v. Wells Bros. Co., 272 Ill. 609), and the form of verdict should have been to find the issues for plaintiff, etc., but that irregularity would not. constitute reversible error. The verdict was in a lump sum only, and the court undertook to distribute it. This is permissible where there is no dispute as to the amounts that should be allowed if the plaintiff recovers, as was held in Dragovich v. Iroquois Iron Co., 269 Ill. 478 [10 N. C. C. A. 475]. But here there were disputes. In distributing the money the court allowed nothing under clause (a), but the court had no means of knowing but that the jury allowed something for the hospital bills for the time appellee was in the hospital. There was a dispute as to the amount of appellee’s earnings before he was injured. He worked a certain number of hours per day at a certain employment, but he also worked as janitor one hour each day before his regular employment began, and sometimes acted as janitor after his day’s work was ended, and he did work of that kind on Sunday. The bookkeeper for appellant treated this janitor work as overtime, and overtime earnings are excluded by section 6 (J. & A. [¶] 5455), while appellee claimed that it was a part of his regular employment, and that the amounts he so earned were to be treated as a part of his regular earnings in determining the difference between what he earned before and after the judgment and therefore the amount he should be compensated for such loss of earnings. The verdict did not inform the court how the jury decided that question. We are of opinion that in such a case as this, where by the judgment to be entered one or more amounts are to be paid at once and other sums in instalments for several years, the preferable practice is to have the jury find each item separately as well as to return a verdict for a total amount.

For the errors above indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Neal Godby, Appellee, v. Bluford Wilson et al., Appellants.
    Gen. No. 6,300.
    1. Commerce, § 4

      —what constitutes interstate. Where certain railroad ties were shipped from outside the State to a railroad at a point within the State, in care of its agent there for tie distribution, and on his direction were shipped from there to another point in the State on the same bill of lading indorsed for shipment to that place in care of the railroad’s section foreman there, held that the jury were warranted in finding that the ties were in interstate commerce when unloaded at the latter point.
    2. Commerce, § 4

      —what are matters mthin Federal Employers’ Liability Act. The repair of the main track of an interstate railroad and bringing materials to the place of repair for that purpose, held to be matters coming within the Federal Employers’ Liability Act.
    3. Master and servant, § 830

      —when presumed jury made proper reduction in damages on account of contributory negligence in action under Federal Employers’ Liability Act. Under the Federal Employers’ Liability Act, a plaintiff’s contributory negligence does not bar recovery, but should be considered by the jury in mitigation of damages, and it will be presumed they made a proper deduction in the amount of damages where a case was tried on that theory and they were instructed on the subject and found the plaintiff guilty of such negligence.
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, ” 1916.
    Affirmed.
    Opinion filed October 12, 1916.
    Stevens, Miller & Elliott, for appellants; Philip Barton Warren and Henry L. Child, of counsel.
    Dailey & Miller and Robert N. McCormick, for appellee.

      See Illinois Notes Digest, Vols, XI to XV? and Cumulative Quarterly, sfcitte $opic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

In 1915, and for several years before that time, the Chicago, Peoria & St. Louis Railroad was operated by receivers. On May 1, 1915, Neal Godby, a section hand under said receivers at Pekin, Illinois, while assisting in unloading a carload of railroad ties, had his hand severely injured and was thereby permanently disabled from performing any manual labor requiring the use of both -hands. He sued the receivers to recover damages for said injuries and filed a declaration in which he alleged the injury, and that he and the receivers were then engaged in interstate commerce; that he was injured by the negligence of another servant of said receivers; and that the receivers were liable in damages to him under the Federal Employers’ Liability Act. There was a plea of the general issue and a jury trial, and Godby had a verdict and a judgment for $2,500, from which the defendants appeal. Their main contentions are that at the time in question neither appellee nor appellants were engaged in interstate commerce, and that the injury to appellee was not caused by any negligence of any other servant of appellants, and that it was caused by appellee’s negligence.

The railroad in question conducts a freight and passenger business between Pekin, Illinois, and St. Louis, Missouri, and is therefore engaged in interstate commerce. The car in question was known as T. P. & W. 1887. The ties with which it was loaded were purchased by the receivers in Missouri and elsewhere, outside of the State of Illinois, and were shipped from St. Louis to the receivers at East St. Louis in care of one E. E. Barrow, who was the agent of the receivers for the distribution of ties which it purchased. As Soon as the car reached East St. Louis, instructions were asked of him and he directed it to be sent to Pekin in care of Dyson, who was the foreman of the section crew to which appellee belonged, Appellants contend that the interstate shipment ended at Bast St. Louis. Appellee contends that it ended at Pekin.

The question when a particular transaction is to be considered as occurring in interstate commerce and governed by the federal act, and when in intrastate commerce and governed by the laws of the State, has been th.e subject of much .difference of opinion in the courts of the'different States and in the United States Circuit Courts of Appeals. i The Supreme Court of the United States is the final arbiter of this question, and- much light has been thrown upon it by the decisions of that court in Gulf, C. & S. F. Ry. Co. v. Texas, 204 U. S. 403; Second Employers’ Liability Cases, 223 U. S. 19 [1 N. C. C. A. 875]; Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146 [3 N. C. C. A. 779]; North Carolina R. Co. v. Zachary, 232 U. S. 248 [9 N. C. C. A. 109]; Chicago, M. & St. P. Ry. Co. v. Iowa, 233 U. S. 334; Illinois Cent. R. Co. v. Behrens, 233 U. S. 473 [10 N. C. C. A. 153]; Pennsylvania R. Co. v. Mitchell Coal & Coke Co., 238 U. S. 251. Some of the same questions have been discussed in this State in Patry v. Chicago & W. I. R. Co., 265 Ill. 310; Devine v. Chicago, R. I. & P. Ry. Co., 266 Ill. 248; and Staley v. Illinois Cent. R. Co., 268 Ill. 356. We discussed one of the questions here involved in Mattocks v. Chicago & A. Ry. Co., 187 Ill. App. 529. The general subject is discussed in Roberts on Injuries to Interstate Employees on Railroads, in chapters 3 and 4. We think it unnecessary to set out in detail the special facts of each of these cases and the application of the law to them by the courts. It is clear that if this car had been unloaded at East St. Louis the interstate shipment would have been at an "end; and that if the original shipment had been to Pekin, Grodby and the receivers would each have been engaged in interstate commerce in unloading this car. We are of opinion that the jury could fairly find from all the evidence that this carload of ties was purchased by the receivers, not for use at East St. Louis, but foy use at some other place on its line in repairing its main track. The original bill of lading was to receivers, care of Barrow, the officer who had charge of the distribution of such ties, and with the intention that Barrow should designate the point to which they should be sent. Accordingly the original bill of lading was amended in red ink instead of preparing a new bill, and by the amendment the car was to go to Pekin in care of Dyson, the section foreman. We therefore conclude the jury might fairly find that this was a continuation of the original interstate shipment. There is another ground under which the case may be brought under the federal act. The proof shows that there are two classes of ties, first and second. Second-class ties are purchased and used to repair switch tracks, while first-class ties are purchased and used for the repair of the main track. This car was loaded with first-class ties and they were designed for the repair of the main track. Complaint is made that the court permitted proof that they were afterwards used in the repair of the main track. We think this proof, if improper, was harmless because we are of the opinion that other proof shows that they were purchased and delivered at Pekin for that purpose. We regard this repair of the main track of an interstate railroad and the bringing of materials to the place of repair for that purpose to be matters coming within the federal act, under authorities above cited. We approve the conclusion reached in the trial court that Godby and the receivers were engaged in interstate commerce in the unloading of this car of ties at Pekin.

The ties were to be piled on a bank a short distance from the railroad car. To assist in this work one end of one tie was- placed on the cross brace underneath the car and the other end rested on the ground. When a tie was thrown out of a car, one end of it would fall upon this crosstie. A part of the section crew were in the car, throwing out ties, and the other part were outside, receiving and piling them. Godby stood next to the crosstie and handled that end of the ties. He had his hand on one tie which had just been thrown out and was just about to move it when another tie was thrown from the car and struck his hand. These ties fell about eight feet. We are of opinion that, under the evidence, it was a fair question for the jury to determine whether the man who threw that particular tie from the inside of the car before the last preceding tie had been removed was negligent in so doing. Under the federal law, the fact that he was a fellow-servant of Godby is immaterial. It is argued that Godby was also guilty of negligence in not keeping out of the way of the second tie. Under the. federal act the contributory negligence of the plaintiff, if. any, does not bar a recovery, but the jury are required to diminish the damages in proportion to the amount of negligence attributable to the plaintiff. The case was tried on that theory and the jury were instructed on that subject, and if plaintiff was found by the jury guilty of contributory negligence, we must presume that the jury made a proper deduction in the amount of damages.

The rulings of the court upon the instructions, when all considered, seem to be in accord with the rules laid down in the authorities above cited. The judgment is therefore affirmed.

'Affirmed.


author: Mr. Presiding Justice Niehaus

text:
    Joseph Comorouski, by Mike Comorouski, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 6,084.
    (Not to he reported in full.)
    Appeal frofn the Circuit Court of Bureau county; the Hon. Job A. Davis, Judge,.presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed November 9, 1916.

      Certiorari denied by Supreme Court (maMng opinion final).
    Statement of the Case.
    Action ¡by Joseph ComorousM, by Mike ComorousM, his next friend, plaintiff, against Spring Talley Coal Company, defendant, to recover damages for personal injuries sustáined hy plaintiff in defendant’s coal mine. From a judgment for plaintiff for $1,600, defendant appeals.
    Plaintiff was driver of a car hauled by a mule through an entryway in the long wall system of mining of defendant. The mule became obstreperous and was backing against plaintiff, who, to avoid being crushed against his moving car, jumped off on one side and struck a rock which caused him to slip and fall in front of the car so that the car ran over his limb and broke it. It was charged in the declaration that defendant hpd rejected the Workmen’s Compensation Act.
    McDougall, Chapman & Bayne, for appellant; Mas-tin & Sherlock and Josee T. Skinner, of counsel.
    J. P. Lawson and J. L. Murphy, for appellee:

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

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

Abstract of the Decision.

l.i Jury, § 80 —when question asTced juror on voir dire is proper ground for peremptory challenge. Where a juror was asked on voir dire if he would give plaintiff all the damages he was entitled to under the law and the evidence in case the jury found the defendant guilty and that plaintiff was entitled to damages, held that the question was competent and allowable as ground for a peremptory challenge.

2. Jury, § 53 —when answer of juror on voir dire shows his competency.- An answer of a witness to a question, if he would give plaintiff all the damages he was entitled to under the law and the evidence in the case, in case the jury found the defendant guilty and that plaintiff was entitled to damages, that he would go according to his own judgment on the evidence and the law, shows his competency. .

3. Mines and minerals, § 176 —when evidence sufficient to show unlawful accumulation of refuse. The preponderance of the evidence held' to show that refuse was allowed to accumulate on both sides of the haulage road in defendant’s coal mine in violation of the statute (J. & A. j[ 7489), and as charged in the declaration, in an action by a mine employee to recover damages for personal injuries charged to have been sustained by reason of such refuse.

4. Evidence, § 365 —when opinions of experts are not competent. The opinions of expert witnesses are not competent evidence as to actual conditions, and their safety, which are matters of common observation.

5. Instructions, § 87 -—when instruction on preponderance of evidence is proper. An instruction as to the sufficiency of a slight preponderance of evidence is proper.

6. Instructions, § 111 —when instruction applicable to one count only of declaration is not erroneous. An instruction which is applicable to one count, only, of a declaration is not erroneous because it does not refer to that fact.

7. Mines and minerals, § 191 —when instruction on liability of mine owner is not erroneous. " In an action against a mine owner by an employee for damages for personal injuries, an instruction* setting out the particular provisions of the statute charged in the declaration to have been violated, and stating that if the defendant failed to comply with such provisions and such violation caused plaintiff’s injury the jury should find defendant guilty, not approved but held not erroneous.

8. Instructions, § 20 —when requested cautionary instruction properly refused. A requested instruction cautioned the jury to exercise their individual judgment and conscience, held that its refusal was not erroneous as it tended to induce some jurors to neglect to confer and consider arguments of cojurors.

9. Instructions, § 151 —when requested instruction properly refused. Refusal to give instruction as to matters sufficiently set out in other given instructions is not error.

10. Mines and minerals, § 194 —when refusal of instruction in action for injuries to mine employee is not erroneous. An instruction that the court was not intimating that a dangerous condition existed in defendant’s coal mine, held permissible hut refusal to give same not error under circumstances of the case, in an action by an employee to recover damages for personal injuries sustained in such mine.

11. Mines and minerals, § 194 —when refusal of instruction as to nonliability of owner if mine examiner did not consider mine unsafe proper. An instruction that if the mine examiner did not consider a certain condition in the mine dangerous the plaintiff could not recover, held erroneous and properly refused, in an action by a mine employee to recover damages for personal injuries sustained in defendant’s mine.

12. Instructions, § 20 —refusal of cautionary as not error. Cautionary instructions held permissible, but refusal to give same not error.

13. Instructions, § 138 —when requested instruction is properly refused’. An instruction as to what was not the law as to a matter not material to the questions in controversy, held properly refused.


author: Me. Presiding Justice Niehaus

text:
    Staver Carriage Company, Appellant, v. B. E. Richardson, Appellee.
    Gen. No. 6,265.
    1. Sales, § 422

      —what constitutes conditional sale contract. A contract for the sale of goods by the terms of which the title and ownership remain in the seller until they are paid for in cash is a conditional sale contract.
    2. Sales, § 425

      —when conditional sale is fraudulent as to bona fide purchasers and execution creditors of judgment debtor. The owner of personal property will not be permitted to sell it conditionally and deliver it to another and successfully maintain the reservation of title to himself as real owner by contract as against a bona fide purchaser for value or an execution creditor of the judgment debtor to whom such property was delivered under a contract of conditional sale, and such sale is considered constructively fraudulent as to such purchasers and creditors.
    3. Sales, § 425

      —what is effect of conditional sale contract between parties. As between the parties, a conditional sale contract with reservation of title to personal property until payment is made therefor is valid and enforceable.
    4. Sales—what constitutes delivery of possession to seller of automobile sold under conditional sale contract. Where, prior to the issuance and levy of an execution upon a quantity of automobiles stored in a judgment debtor’s warehouse and which had been purchased by him under a conditional sale contract, he agreed to return the automobiles to the seller and for the purpose of their removal from the • warehouse unlocked the warehouse and gave access thereto to the seller’s employees for such removal, and they entered and had removed a part of the automobiles when such execution was issued and levied, held that there was a delivery of the property to the seller, and the ownership and possession thereof were in him at the time of the issuance and levy of the execution, and he had the right of possession at the time of suing out a writ of replevin thereafter.
    Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed with finding of facts.
    Opinion filed November 9, 1916.

      Certiorari denied by Supreme Court (making opinion final).

      Bulkley, More & Tallmadge and Nathan J. Aldrich, for appellant.
    Frank Gf. Plain, for appellee.

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

   Me. Presiding Justice Niehaus

delivered the opinion of the court.

This action of replevin was brought by the Staver Carriage Company, appellant, in the City Court of Aurora, against the appellee, B. E. Richardson. The appellant by this action recovered the possession of thirty-four vehicles, which had been levied upon by the appellee as sheriff by virtue of executions issued upon judgments by confession, recovered by the German American National Bank of Aurora, against Andrew Welch, amounting to the sum of $5,086.53. The vehicles in question had been manufactured by the appellant and delivered to Welch, under the terms of what under the authorities must be considered a conditional sale contract, by which the title to and ownership of the vehicles were to remain in the appellant until the price thereof was paid in cash. (Gilbert v. National Cash Register Co., 176 Ill. 288; Peoria Mfg. Co. v. Lyons, 153 Ill. 434; Chickering v. Bastress, 130 Ill. 215.)

Andrew Welch, about the time of the commencement of this suit, was in business in Aurora and had been for many years previously. He had a salesroom or repository and warehouse in that city for the purpose of selling various kinds of carriages and vehicles, and at the time in question was in failing circumstances financially, and breaking down in health. When it became apparent that Welch would be unable to pay for the goods in question, it was thought best, by his relatives and his agent and business representative, Mrs. Mahaffey, that the goods in question should lie returned to appellant, and a conference of the creditors who had an interest in the goods which Welch had in the salesroom and warehouse was called. At that conference the business agent and representative of Welch, with Welch’s subsequent approval, offered to return to the appellant the thirty-four vehicles involved, in discharge of the amount which Welch had obligated himself to pay for the same, namely, the invoice price of $2,714, which offer was accepted by the appellant through its official representative, and thereupon appellant made arrangements to take back the vehicles at once. A list of the vehicles to be returned was prepared by Welch’s representative, and they were checked over by the representative of appellant, and agreed upon.

Part of the vehicles were in the showroom or repository and a part were across the street in the warehouse ; those in the warehouse were still in the same condition that they were in when received, that is, uncrated. The next day, April 6th, the list mentioned was given to Peter Bickelhaupt, an employee, of the appellant, who with two other employees went to Aurora to take possession of the vehicles in question, and to attend to the removal of them from Aurora tq Chicago. They reached Aurora about nine o’clock, and saw Mrs. Mahaffey, Welch’s business agent, who had charge of the matter of the return of the vehicles to appellant, and she sent a man with them to unlock the warehouse and locate the vehicles in the warehouse and the repository, which was done. They checked up on the list which Bickelhaupt had brought, and located the vehicles in the repository and in the warehouse across the street, and then immediately proceeded with the work of removing them, having previously hired the necessary wagons and teams to haul them from the premises to the freight cars which had been provided by the railroad company- to carry them to Chicago.

While they were engaged in this work of removal, the German American National Bank had two judgments entered by confession against Andrew Welch, one for $4,814.13 and the other for $272.40, in the City Court of Aurora; executions were issued thereon immediately, and placed in the hands of appellee, as sheriff, who, by virtue of these executions, levied upon the vehicles in question, not only those which still remained in the repository and warehouse, but also those which had been already packed in the freight cars; and, under this levy, appellee took complete possession of all the vehicles.

After the suing out of the writ of replevin here involved on the 26th day of April, 1907, bankruptcy proceedings were commenced against Andrew Welch in the United States District Court for the Northern District of Illinois, and he was adjudged a bankrupt on the 15th day of May, 1907, a trustee in bankruptcy was appointed, and all the goods levied upon by the appellee as sheriff, which had remained in appellee’s possession and not replevied up to that time, were turned over to the trustee in bankruptcy.

The German American National Bank filed its two claims, based upon the judgments referred to, in the bankruptcy court, and afterwards received the dividend declared in the bankruptcy proceeding, with the other creditors of the bankrupt. It does not appear that any effective effort was made at any time by the trustee in bankruptcy to have any claim of lien of the executions in question against Andrew Welch continued for the benefit of the general creditors of the bankrupt. There was an attempt made to have the trustee in bankruptcy substituted as defendant in the place of appellee as sheriff of Kane county, and an order was obtained from the referee in bankruptcy granting the trustee leave to be substituted in this replevin suit, but the trustee never took any further steps in that direction nor obtained any order of substitution. It appears that he filed some pleas in the case, but, inasmuch as he never obtained leave to file them nor any order of substitution, they were ignored, and thereafter no further effort of any kind was made by the trustee in the matter, and the estate of the bankrupt was closed, the referee’s final report being filed on January 6, 1914, and the trustee was discharged.

To the declaration filed in this action the appellee interposed four pleas: first, non cepit; second, non detinet; third, property in the defendant; and fourth, property in Andrew Welch, and executions in favor of the German American National Bank against Andrew’ Welch for $5,086.53 and costs, with an averment that appellee took said goods and chattels in execution of said writ. A similiter was filed to the first and second pleas, and replications to the third and fourth pleas, averring property in the appellant and not in*the appellee, nor in Andrew Welch, and issues were joined on these replications. There was a trial by the court, and the court found the issues in favor of the appellee and rendered a judgment against the appellant, awarding a writ of retorno habendo.

It is apparent that the rights of the parties must be determined by the answer to the question, as to who was the owner and in possession of the property in question at the time of the recovery of the judgments, and the issuance and the levy of the executions .mentioned. There is practically no dispute concerning the facts and the circumstances under which the judgments were recovered, the executions issued, and the levy made. It is the well-settled law of this State that the owner of personal property will not be permitted to sell it conditionally and deliver it to another, and suecessfully maintain the reservation of title to himself as real owner, by contract, as against bona fide purchasers for value, or execution creditors of the judgment debtor, to whom such property and the posses^ sion thereof has been delivered, under a contract of conditional sale. To suffer the real' ownership of such property to be in one person, and the ostensible ownership in another, without notice to the world, is considered to be constructively fraudulent as to- creditors and bona fide purchasers for value. (VanDuzor v. Allen, 90 Ill. 499; Chickering v. Bastress, 130 Ill. 215; Gilbert v. National Cash Register Co., 176 Ill. 296; Peoria Mfg. Co. v. Lyons, 153 Ill. 427; Singer Mfg. Co. v. Ellington, 103 Ill. App. 521; Rosenbaum v. King, 114 Ill. App. 648; Jacobson v. Patterson, 190 Ill. App. 266; Hervey v. Rhode Island Locomotive Works, 93 U. S. 664.)

But as between the parties, a conditional sales contract with a reservation of title to personal property until payment is made therefor, is enforceable; and such a contract is valid. (Lucas v. Campbell, 88 Ill. 447; Murch v. Wright, 46 Ill. 487; People v. Kirkpatrick, 69 Ill. App. 207; Hallbeck v. Stewart, 69 Ill. App. 225.)

In this case, as between the appellant and Andrew Welch, under the conditional sales contract in question, the title and ownership of the vehicles replevied remained in the appellant, and were in the appellant at the time that the arrangement was entered into for the return of the vehicles to appellant; therefore, if appellant regained possession of them before the German American National Bank acquired any rights with reference thereto, or any lien by virtue of its executions, it had the legal, right to maintain replevin, and the sheriff had no right to levy upon the vehicles as the property of Andrew Welch.

The controlling question, really is, whether at the time of the issuance and levy of the executions the appellant had in fact repossessed itself of the property levied upon, that is to say, as to whether or not, at that time, the property had been redelivered to appellant. And the evidence clearly shows that the employees of appellant at the time mentioned were in control and exercising dominion over the" property in controversy. The property was bulky in its character, but it had been located and turned over to the disposal of appellant’s employees; the warehouse had been unlocked and opened for the purpose of enabling them to remove it, and the dominion and control which they were exercising over it is clearly evidenced by the fact that they were in the act of removing it, and had already removed a portion of it, from the premises.

The unlocking of the warehouse for appellant’s employees for the purpose of the removal of the vehicles and giving appellant’s employees access to the repository for such removal, under the circumstances stated, amounted to actual delivery. It was said by Lord Kenyon in Chaplin v. Rogers, 1 East 194, that a delivery to the vendee of the key of the warehouse in which goods were lodged or other indicia of ownership, where goods are ponderous and incapable, of being handed over from one person to another, amounts to actual delivery; and in Jewett v. Warren, 12 Mass. 300, which was a case involving the transfer of ownership of a boom of logs, it was held, following the rule announced by Lord Kenyon, that where the person, who was appointed by the vendor to deliver the logs lying within the boom, and who went within sight of them with the vendee and showed them to him, and the vendee accepted them, that this was all the delivery which could be usefully made of property of this nature, and was effectual, for that kind of property, as a delivery over in hand of a chattel capable of such personal possession.

In Rice v. Austin, 17 Mass. 197, following in the same line of authority, it was said that, “It is not necessary, to effect the transfer of bulky articles, that there shall be a manual delivery of them. The delivery of things, which may be considered as the proper indicia of the property, is sufficient”; and that the fact of possession might be inferred from the plaintiff’s undertaking to deal with the property as his own. The courts of review in our own State have directly followed in the line of 'decisions referred to on the question of delivery. (Ticknor v. McClelland, 84 Ill. 471; Morrison v. Woodley, 84 Ill. 192; May v. Tallman, 20 Ill. 443; Funk v. Staats, 24 Ill. 632; Hart v. Wing, 44 Ill. 141; Moser v. Kreigh, 49 Ill. 84; O’Leary v. Bradford, 39 Ill. App. 182; Barker v. Livingston County Nat. Bank, 30 Ill. App. 591; Jacobson v. Patterson, 190 Ill. App. 266.)

Under the facts and. the law it is apparent therefore that, at the time of the issuance of the execution in question and the levy referred to, the appellant was the owner of and in actual possession of the property in question. And the holding of the court on the issues joined, that the property at the time of the levy by the sheriff was the property of Andrew Welch and in his possession, and that it was subject to the levy of the executions referred to, was erroneous; and the judgment entered in accordance with such finding and awarding a writ of retorno habendo for the property replevied should therefore be reversed.

The conclusions herein expressed make it unnecessary to consider and determine the other questions raised on this appeal. The judgment is reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment.

We find that the ownership and the possession of the property in question were in appellant at the time of the issuance and levy of the executions involved, and that the ownership and the right of possession of said property were in appellant at the time of suing out of the writ, of replevin.


author: Mr. Justice Carnes

text:
    Leslie P. Voorhees, Defendant in Error, v. Hannah E. Mason, Executrix, et al., Plaintiffs in Error.
    Gen. Nos. 6,241, 6,242.
    (Not to he reported in full.)
    Error to the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed November 9, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Suit by Leslie P. Voorhees, complainant, against Truman A. Mason (Hannah E. Mason, executrix, substituted) and five others, defendants, for an accounting by the defendants as directors of a corporation in which complainant was also a stockholder. From a decree for accounting, defendants appeal and also bring error to review the whole record.
    The bill alleged the defendants had issued to themselves individually each thirty shares of stock in the corporation, each share of the par value of ten dollars and thirty income certificates, each of the par value of two hundred and ninety dollars, at one-half of the established price thereof, and that they had received ten per cent, commission on the par value of other shares of stock and income certificates sold by them. Their answer admitted these facts, but sought to justify by stating they were so authorized by a vote of the stockholders on account of compensation to them for services rendered. The bill was dismissed on hearing, but, on "an appeal to the Appellate Court (148 Ill. App. 647), an accounting was directed, with order to charge each defendant with full price of stock and certificates held by each and dividends thereon and one-half dividends paid. On further appeal the Supreme Court (245 Ill. 256) remanded the case on other grounds, without reversing the order for accounting. A cross-bill was then filed claiming discharge of liability, and on demurrer- thereto being overruled the original bill was dismissed, but on appeal the Appellate Court (182 Ill. App. 569) sustained the demurrer and dismissed the cross-bill and ordered accounting as in first decree. March 2,1914, the case was referred to a master in chancery to state an account under such decree. January 13, 1915, the defendants filed a petition to modify the decree as to the value of the certificates and interest, and a new decree was entered, adhering to the former as to stating.an account of the stock and certificates, and directing a statement also of further details. Accounts were stated accordingly, showing particular amounts chargeable against each defendant as to stock, certificates and commissions, and that under the contracts for the stock and certificates payment after the first four payments, which amounted to the stock value at par, was voluntary. Decree was then rendered confirming report as conforming to the decree of March 2, 1914, and that the corporation recover the amount stated from each defendant, with interest. The board of directors thereupon, by majority vote, caused entry of a release of this money decree in favor of the corporation for the expressed consideration of one dollar, with a release to the corporation of all claims by the defendants for services rendered. Petition was filed by complainant alleging that the corporation because of the revolution in Mexico, where its properties were located, was worthless except for assets recoverable under the decree in this suit, and asking receiver and injunction against defendants from prosecuting suit for services passed upon by the former decree and order, and that the satisfaction of the decree be canceled. Decree was entered éxpunging the satisfaction of the former decree of record, allowing injunction as prayed, and appointing trustee to collect the proceeds of that decree; also denying complainant’s prayer for solicitor’s fees and expenses in the litigation.
    Abstract of the Becision.
    1. Appeal and error, § 1783

      —when confession of errors 6y corporation not ground for reversal of decree. Where the law compelled continued prosecution of a suit against the directors of a corporation for an accounting by them of the corporate funds for the benefit of the corporation, although prosecuted by a single small stockholder and against the wishes of the directors, officers, and all the other stockholders, held that neither the officers nor all of the stockholders, except the complainant, may release a decree rendered in such suit requiring the defendants to pay an account stated by a former decree therein as due from them to the corporation, and the confession by the corporation of errors assigned for reversal of a decree canceling such release would not warrant reversal of said decree.
    2. Appeal and error, § 1725

      —when decision on former appeal is law of case. Where certain so-called income certificates issued by a corporation were treated by it as having a certain fixed value, although they had in fact technically no par, market or intrinsic value, and were so treated and acted upon by the court in rendering a decree against the directors of the corporation for an accounting as to such certificates, and an account stated was made in such decree upon the basis of such accepted value, held that the question that said certificates were of less value could not be raised in a subsequent proceeding on writ of error or appeal, and that the effect of a provision in. the contract under which such certificates were issued that payment on the certificates should be optional after certain partial payments had been made could not be questioned for the first time in such subsequent proceeding.

      . Defendants filed writ of error to review the whole record, and the corporation filed confession of the errors assigned, and the complainant assigned as cross error that the defendants should he decreed to pay jointly ánd severally instead of individually. Appeal also brought by the defendants from the final order. The two cases were consolidated.
    C. E. Antram and John H. G-arnsey, for plaintiffs in error; Edward C. Hall, of counsel.
    C. B. Cheadle, for Joliet Tropical Plantation Co.
    George F. Borman, for defendant in error.

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

   Mr. Justice Carnes

delivered the opinion of the court.

3. Corporations, § 287 —when allowance of commissions to directors of corporation on sales of stock is proper. The allowance by the master in chancery and the chancellor of ten per cent, commission to the directors of a corporation on sales of stock of the corporation made by them, held proper under the evidence, in a suit for accounting brought against said directors.

4. Corporations, § 275 —when decree charging amounts against directors severally in suit for accounting is proper. A decree charging certain amounts against the defendants severally instead of jointly and severally, in a suit brought against the directors of a corporation for an accounting of the corporate funds, held proper under prior decisions in the same suit of the Supreme and the Appellate Courts.