author: Mb. Pbesiding Justice Thompson

text:
    James McCullough, Appellee, v. Illinois Steel Company, Appellant.
    Gen. No. 5,118.
    1. Instructions—when nop error to refuse. If a verdict can he sustained upon the evidence upon any of the counts, then the refusal of the court to instruct the jury to find the defendant not guilty upon the particular counts and on the declaration as a whole, is harmless error.
    2. Master and servant—what rislcs not assumed. Held, under the evidence, that an assistant master mechanic did not assume the risk of injury from the splashing of molten metal out of the nose of a mixer.
    3. Verdicts—when not excessive. Held, in an action on the case for personal injuries that a verdict for $18,000 was not excessive, where the evidence tended to show that at the time of the accident the plaintiff was a skilled mechanic, thirty-two years of age, in perfect health, and earning $135 per month, with an annual present from his employer of $100 at .Christmas; was so efficient that he had the management of seventy mechanics under him; and where the evidence further tended to show that since the injury he has not been able to straighten his head, which, by the burning of his head, neck and shoulders, was drawn hack and to the right at an angle of fifty-five degrees, producing a wry neck and causing the plaintiff to look upwards and to the right constantly; that he became unable to lift his right hand as high as his shoulder; was burned so seriously that his life was despaired of for a time; that he suffered great pain and was incapacitated to follow his trade as a machinist in the future.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    Gabnsey & Wood and William Beye, for appellant; Knapp, Hayete & Campbell, of counsel.
    J. W. D’Abcy, for appellee.
   Mb. Pbesiding Justice Thompson

delivered the opinion of the court.

This is an action on the case brought by James McCullough, appellee, against the Illinois Steel Company, appellant, to recover damages for personal injuries sustained by him while employed in the company’s mixer mill at Joliet, Illinois, which is one of the departments of the converter.

The original declaration contained four counts, and an additional count was afterwards filed. The first count sets up the ownership of the plant and buildings, and charges the defendant with negligence in that it carelessly, negligently and wrongfully caused, permitted and allowed a large quantity of molten iron or other metal to escape or flow from a certain large vessel known as, to wit, a mixer, to and upon the plaintiff. The negligence alleged in the third count is that the defendant carelessly and negligently overloaded the mixer and poured an unusually large amount of metal into it from a ladle, which was more than the mixer could hold with safety. The fourth count alleges that the craneman operating the crane was an unskilled, incompetent and inexperienced servant, to wit; J. Juver, and that through his lack of skill he caused a large quantity of molten iron to pass from the ladle into the mixer, which was more than the mixer could safely contain. Bach count avers that the plaintiff was in the exercise of reasonable care, that he had no notice, knowledge or warning that the metal would escapé from the mixer, and that the injury did not result from an assumed risk or the negligence of a fellow-servant. The trial court instructed the jury to find the defendant not guilty as to the second and additional counts. The case was submitted to the jury on the remaining counts, and a verdict of guilty was returned assessing the plaintiff’s damages at $18,000. A motion for a new trial was overruled and a judgment entered on the verdict. The defendant brings the case to this court by appeal.

At the close of the evidence the appellant asked three instructions severally directing the jury to find the defendant not guilty as to the first, third, and fourth counts, and a fourth instruction to find the defendant not guilty. The court refused all these instructions, and the appellant assigns error upon the refusal of each of them. If a verdict can be sustained on the evidence upon any of the counts, then the refusal of the court to instruct the jury to find the defendant not guilty upon the particular counts and on the declaration as a whole, is harmless error, and it is unnecessary to discuss the application of the evidence to each count. Olson v. Kelly Coal Co., 236 Ill. 502; Swift & Co. v. Rutkowski, 182 Ill. 18; Consolidated Coal Co. of St. Louis v. Scheiber, 167 Ill. 539.

The evidence shows that in appellant’s steel mills at Joliet there are several departments, each in charge of different men. On the 18th day of April, 1907, the appellee was a machinist and was the assistant master mechanic of the appellant in its Bessemer department. George Burgess was the general master mechanic under whom the appellee and the other assistant master mechanics worked. The appellee had charge of the repair of the machinery in the Bessemer department, but had nothing to do with the operating of that department. Herbert W. Spencer was the general superintendent and John D. Wombacher was the assistant superintendent of the Bessemer department and had general charge of the operating of that department.

Iron is converted into steel in the Bessemer department of appellant’s mills. The iron is brought from the blast furnaces into what is termed the mixer mill, and there combined with iron from other furnaces preparatory to its conversion into steel. The mixer mill is a building constructed of iron or steel about 200 feet long east and west, about 70 feet in width and about 60 feet high. The main floor is of concrete and is about fifteen feet above the ground level. The east half of this building is occupied by two “mixers” which are large iron vessels shaped something ■ like a gravy boat about twenty-five feet in length, about twenty feet in width and about fifteen feet in depth. They will each hold about two hundred and fifty tons of molten metal. They are lined and covered on top with fire brick, the only openings being at the north end on the top where there is an aperture into which the metal is poured and at the south end where there is a nose or spout about four feet long and three feet wide. The mixers stand side by side about twenty feet apart and are known as the east and west mixers.

A steel platform called the weigher’s platform or mixer floor elevated about twelve feet above the main floor, extends along the south wall of the mill. The north edge of this mixer floor extends a few feet north of the south end of the mixers; V-shaped notches are cut into the floor of the platform to make room for the nose or spout of the mixers which when level are about four feet above the mixer floor. The mixers are placed upon rollers so that they can be tipped to the south to pour the molten contents into transfer ladles. The office of mixers is to permit the metal which is to be converted into steel in the adjoining building to be mixed so that its quality may be uniform.

On the north and south sides of the building near the top run tracks. Extending between these tracks are two bridges provided with wheels which rest upon the tracks so that the bridges move east and west on the tracks. Upon each bridge is a traveling hoist termed a trolley containing electric motors which run north and south on the bridges. From each of these trolleys are cables for the purpose of lowering and hoisting the ladles and other things. These elevated tracks with the bridges on them and the trolleys on the bridges give the trolleys a universal motion so that they can be moved in any direction. On the south end of each bridge is suspended what is known as the cage, from which the movement of the trolleys north and south and the bridges east and west and the operation of the cables is governed. The entire elevated machinery is moved and operated by electricity and constitutes what are called the cranes. A standard gauge railroad track runs through the building on the main floor passing the mixers at their north end. A similar railroad track comes into the building on the main floor from the east and runs under the south edge of the mixer floor and under the noses of the mixers, the west end being just west of the west mixer. The molten metal is brought to the mixers in ladles from the blast furnaces. These ladles are large cup-shaped vessels holding from 25,000 to 30,000 pounds of metal. They have a spout which is always on the south side of the ladles and are mounted on trucks; the ladles have trunnions on each side of them which always stand east and west. When it is desired to transfer metal to a mixer a ladle filled with the molten metal is brought into the mixer mill on the north track. The craneman in his cage which is suspended from the bridge some twelve or fifteen feet above the nose of the mixer, raises the ladle to its proper height from the truck with the electric crane by cables suspended from the trolleys which are adjusted to the trunnions .by hooks, and by means of an auxiliary cable attached to the north side of the ladle near the bottom the ladle is tipped and its contents are poured into the mixer through the aperture at its north end. When metal is to be transferred from a mixer a transfer ladle is brought into the mixer mill on a truck on the south track. This truck is moved by means of a cable along the center of the track on which it runs. This cable is in two parts: the one which is mostly on top of the floor being the shorter, the other part of which passes under the floor is the longer. It is operated by means of a drum to which it is attached at the east end. The longer cable passing under the floor rises over a sheave and is joined to the shorter part by what is termed a “button” which fastens the ends of both cables and has a hook which fastens on to the truck which carries the transfer ladle. This track which carried the transfer ladles has an up grade from the east mixer to its west end. This cable occasionally breaks and when it is broken the transfer ladle is operated by hand, being pulled by a gang of about thirty men, until the cable is repaired. This repairing is done by the mechanical department under the direction of appellee.

On the day of the accident the cable broke about the middle of the forenoon and word was sent to the mechanical department to repair it. The appellee with the mechanics under him proceeded to put in a new cable. The work was hindered by the passing and re-passing of the transfer ladle, pulled by a gang of men, the mechanics having to step aside while the ladle passed. It passed backwards and forwards each way about eight times an hour and was filled from the west mixer only while the repairs were being made. The cable was being repaired directly under the nose of the east mixer, which the evidence shows was the usual and proper place for repairing a cable or attaching the ends of a new cable to the button. The west crane was operated by Joseph Juver, its craneman. "When the work of putting in the new cable was nearly finished, the craneman picked up a ladle containing about 15,000 pounds of metal which had become cooled so that it was crusted over on the top; he raised it up with the crane and started to pour it into the east mixer when the crust broke and the metal rushed out in a large volume into the mixer. Some of the metal was spilled at that end of the mixer and a large amount going into the mixer with a rush, the mixer either became too full or the molten metal in it was so agitated that the metal ran over or splashed out of the nose of the mixer and fell upon the appellee who was engaged in the line of his duty under the nose of this mixer, and very seriously injured him.

Counsel for appellant contend that the splashing, of the molten metal over the nose of the mixer was one of the risks appellee assumed when he became assistant master mechanic of appellant, and that appellee contributed to his own injury by not ordering the mill closed down while the cable was being repaired. These are the only legal questions presented by appellant. The negligence averred in the first count is that the appellant carelessly and negligently caused a large quantity of molten metal to escape from the mixer. The evidence shows that appellee had nothing to do with operating the plant or the mixer mill, and that he had no authority over the employes engaged in operating the mixer mill, but whenever anpellee thought it necessary that the plant should be shut down while appellee and the mechanics under him were making repairs the plant would be shut down. Appellee never gave orders to Spencer’s or Wombacher’s men and never got orders from Spencer or Wombaeher. It was not an unusual occurrence for this cable to require repairs and it was always repaired under the nose of the east mixer. Appellee had been at work on the cable about two hours and the evidence shows that only the west mixer was used during that time. Wombacher had given orders and had notified Carter, the weighman who attended the scales on the mixer floor, three quarters of an hour before the accident, not to use the east mixer, but to use the west mixer while the cable was being repaired. Carter had authority to direct Juver, the .craneman, and it was the crane-man’s duty to obey the weighman. The weighman knew the mechanics were repairing the cable under the nose of the east mixer, and the craneman knew the cable was broken. The craneman states that he did not know the mechanics were working under the east mixer, or he would not have poured metal into it, but did know the cable was broken before the appellee was injured. The east mixer was full, the metal came to within fifteen to eighteen inches of the end of the nose of the mixer on the slant. "Wombacher and the other foreman and superintendents had been specially directed to be careful when men were working beneath other men. Wombacher had ordered Carter not to use the east mixer and yet Carter permitted Juver to use it.

The craneman, Juver, states that at the time of the accident he had picked up a ladle which was cooled over on top “frozen”; a hole had been punched through the crust; the hole was clogged and he “gave it a little more power” and had poured about half of it when the crust broke and the metal splashed; he then reversed the ladle and not knowing anything had happened moved the ladle over and poured the balance into the west mixer. Charles Schauland, a witness for appellant, and whose duty it was to attend to the oil by which the mixers are heated, and who was at work on the mixer floor, saw the craneman turning a ladle half full of iron that was “frozen over” and shouted to bim “to hold on” but the metal broke and went into the mixer and a splash came out of the nose. He testifies that he called to Juver, “because if he tipped it back it wouldn’t have busted open,” and that when he saw the ladle and saw that the metal did not run out he knew there was something wrong, and that Juver could see the condition of the ladle as well as the witness. A great many witnesses who had been working about these mixers for from a few months to fifteen years testified that no metal was ever known to have splashed or to have spilled out of the nose before this instance. Juver had been craneman on this crane three weeks before the accident. Three different witnesses testified regarding Juver’s incompetency and Wombacher, the superintendent, had heard complaints about him. Spencer, the general superintendent, had heard complaints that this crane-man handled the crane roughly.

The risks which appellee assumed were those ordinarily incident to his employment as assistant master mechanic in the department in which he was employed. He did not assume the risk of being burned because of a servant of appellant, who was not a fellow-servant of appellee, negligently pouring a ladle containing metal which had cooled sufficiently to have formed a hard crust on the top into a mixer under which appellee was working. The appellee did not assume the risk of the employes of appellant operating the mixer plant under Wombacher, disobeying Wombacher’s orders. “Where a corporation authorizes one of its employes to have the control over a particular class of workmen in any branch of its business such employe is, quoad hoc, the direct representative of the company. The commands which he gives, within the scope of his authority, are the commands of the company itself, and if such commands are not unreasonable those under his charge are bound to obey at the peril of losing their situations, hence the company will be held responsible for the consequences.” Kennedy v. Swift & Co., 234 Ill. 606; Illinois Steel Co. v. Schymanowski, 162 Ill. 447; Illinois Third Vein Coal Co. v. Cioni, 215 Ill. 583. This rule makes appellant liable for Carter’s acts in not seeing that Wombacher’s orders that the east mixer should not be used were obeyed.

We cannot say that the jury were not reasonably justified from all the evidence in finding that the overflow of the metal was caused by the negligent pouring of a “frozen” ladle of metal into a mixer that was full; that the operating superintendent having ordered that that mixer should not be used while the repairs were being made, the appellee did not contribute to the receipt of the injury; and that the appellee was in the exercise of due care, and that the splashing or overflow of the metal from the mixer was not an assumed risk. There was no error in the trial court refusing to direct a verdict for the defendant.

It is further contended that the damages allowed are excessive. At the time of the accident the appellee was a skilled mechanic, thirty-two years of age, in perfect health and earning $135 per month, with an annual present from his employer of $100 at Christmas. He was so efficient that he had the management of seventy mechanics under him. Since the injury he has not been able to straighten his head, which by the burning of his head, neck and shoulders, is drawn back and to the right at an angle of fifty-five degrees, appellee now having a wry neck so that he looks upwards and to the right constantly. He is unable to lift his right hand as high as his shoulder. He was burned so bad that his life was despaired of for a time. The pain was so great that he was given morphine five weeks. He will not be able to follow his trade as a machinist in the future. When his age, his prospects in life before the injury, his earning capacity, his suffering and the permanent results of the injury are considered, this court is not prepared to say on a review of the evidence that the verdict which has been approved by the trial court is excessive. Finding no error the judgment is affirmed.

Affirmed.

Mr. Justice Dibell took no part in the hearing of this case in this court.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    Mattie C. Harrison, Appellee, v. Albert T. Tourtillott, Appellant.
    Gen. No. 5,077.
    1. Husband and wnrs—how transfers of chattels between, must be made. To be valid as against a third person, transfers of chattels between husband and wife living together, must be made in writing and acknowledged and recorded as chattel mortgages.
    2. Husband and wipe—how indebtedness must be established. The law requires satisfactory proof that there was a valid subsisting indebtedness between the husband and the wife.
    Replevin. Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 24, 1909.
    Tbusdell & Smith, for appellant.
    C. H. Wooster, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action of replevin brought by Mattie C. Harrison, appellee, against Albert T. Tourtillott, sheriff of Lee county, appellant. The defendant justified the taking and detention of the property under an execution against William T. Harrison in favor of Elizabeth Bedford.

The record shows that on May 10, 1907, Elizabeth Bedford recovered a judgment for $9896.74 in the Circuit Court of Lee county against William T. Harrison. An execution was issued upon this judgment to the sheriff of Lee county, and he levied upon a piano as the property of William T. Hárrison. Mattie C. Harrison, the wife of William T. Harrison, replevied the piano from the appellant, claiming that the piano was her separate property and not liable for the debts of her husband. On the trial of the replevin suit, at the close of the plaintiff’s evidence, and also at the close of the defendant’s evidence, the appellant requested a peremptory instruction. This the court refused to give. T'he jury returned a verdict in favor of appellee. A motion for a new trial was overruled and judgment rendered on the verdict. The defendant appeals to this court.

The only question presented for our consideration is the question whether the verdict and judgment can be sustained upon the evidence. The evidence in the record shows that William T. Harrison and Mattie C. Harrison were married in 1885 in Illinois; that at the time of the marriage the wife had about $50 which she received from her father’s estate, and in the neighborhood of $100 which she had earned by her own labor. This money she loaned to her husband. They then moved to the state of Iowa, where the husband engaged in farming. About 1887 they returned to Illinois, where the appellee has resided ever since with her husband. After returning to Illinois, the husband worked in a factory for some time. Mrs. Harrison kept boarders for several years, and claims to have loaned the profits of the boarding house to her husband in small sums at the end of each month. The total amount claimed to have been loaned from this source is $250. A note was neither given by the husband to the wife for the money originally loaned, nor for the sums of money from the boarding house profits, since loaned, nor was any book account kept by the wife of the account against her husband. In October, 1904, Harrison with his wife went to the store of T. J. Miller of Dixon where the piano was selected. The piano was delivered at the residence of the Harrisons in Amboy. At that time Harrison appears to have been engaged in running a store. After the delivery of the piano at the residence Miller went to Harrison’s place of business, where Harrison paid for the piano by turning in an old organ for $35 and giving his note for $325. No bill of sale was ever made of the piano from the husband to the wife. This is substantially the evidence in the case. The record does not show for what the judgment was obtained in favor of Elizabeth Bedford against Harrison nor whether the indebtedness was incurred before or after the purchase of the piano, except as it may be inferred from a copy of the declaration in the suit of Bedford against Harrison that it was a promissory note executed by Harrison in 1895.

The $150 claimed to have been loaned by the wife to the husband in the first instance was nearly twenty years before the purchase of the piano. The proof as to the money loaned from the profits of the boarding house is very indefinite. The wife in her testimony could give neither dates nor the amounts, and while the law is that a husband may prefer the claims of a wife as against the debts of other creditors if the same is done in good faith, yet he cannot transfer property except in the manner provided by the statute. She did not sign the note that was given for the piano. The evidence does not prove that the relation of debtor and creditor existed between the husband and wife. The statutes of Blinois provide that no transfer of goods and chattels between a husband and wife living together shall be valid as against third parties unless the same shall be in writing and acknowledged and recorded as chattel mortgages are required to be acknowledged and recorded. Sec. 9 of chap. 68, Hurd’s Statutes. In addition to the transfer of the piano as required by the statute, the law requires satisfactory proof that there was a valid subsisting indebtedness between the husband and wife. Hauk v. Van Inger, 196 Ill. 20; Frank v. King, 121 Ill. 250; Hockett v. Bailey, 86 Ill. 74; Hughes v. Noyes, 171 Ill. 575.

It is insisted by appellant that by the removal of Harrison and wife to the state of Iowa, the $150 loaned by the wife to the husband became the property of the husband, because it will be presumed that the common law is in force in the state of Iowa, concerning husband and wife, no statute of that state contra having been proved. Tinkler v. Cox, 68 Ill. 119. It is not necessary to pass upon the question, whether, after the return of the husband and wife to this state even if the $150 was loaned as claimed, the moral obligation arising from a previous loan in this state might be a good consideration for a new promise to pay the same, in analogy to a promise to pay a claim outlawed by the statute of limitations or released by an adjudication in bankruptcy. We are unable to discover any evidence in this case upon which this judgment can be sustained. So far as the creditors of Harrison were concerned the piano was his property and subject to his debts. There being no transfer to the wife which the law recognizes, the secret understanding between the husband and wife under which she was to have the piano cannot prevail as against his creditors. The only reasonable conclusion to be drawn from the evidence is that the husband of appellee was the purchaser and owner of the piano. The verdict and judgment are not supported by the evidence. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    William H. Goodrich et al., Appellees, v. Chicago Great Western Railway Company, Appellant.
    Gen. No. 5,120.
    1. Evidence—when substantive proof competent. The introduction of substantive evidence is within the sound discretion of the court.
    2. Vebdicts—when special finding inconsistent with general verdict. If the jury, by a special finding, expresses inability to find the preponderance of the evidence in favor of the plaintiff upon a fact essential to the maintenance of the action, such special finding is inconsistent with a general verdict in favor of the plaintiff.
    Action on the case. Appeal from the Circuit Court of Stephenson county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 24, 1909.
    J. B. Stephens, for appellant; A. GF. Briggs, of counsel.
    J. A. Crain, for appellees.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action on the case brought by William H. Goodrich and Charles C. Goodrich, appellees, against the Chicago Great Western Bailway Company, appellant, to recover damages for killing five horses and injuring two others belonging to the appellees, by a train on appellant’s railway The horses got upon the railroad track from the farm of appellees at a railroad farm crossing, through a gate which it is alleged was unsuitable and insufficient to prevent horses and stock from getting on said railroad.

The appellees’ farm buildings are on the south side of the railroad and from the north side a lane leads from the crossing to appellees’ pasture. The gate at the north side of the right of way was a sixteen foot sliding gate four feet high, separating the lane from the right of way. The gate as described by both parties is that ordinarily seen, that slides between two posts at either end; at the end at which it turns the upper board is on a cross piece attached to the posts, one of which is a little forward of the other. At the other end the two upper boards project beyond the rest of the gate. By means of these boards projecting between the posts the gate when closed is raised off the ground and rests upon cross pieces or cleats nailed to the posts. When it is desired to open the gate it is slid back from between the posts at the end that opens and is then carried around as far as desired, that end of the gate having to be lifted up to open it. The evidence of appellees tended to show that the gate was old and dilapidated; that the top board was gnawed by the horses and one of the two cross pieces at the fastening end was loose and broken off; that the gate because of its condition would open by shaking; that horses and cattle by rubbing against it had opened it and a strong south wind had blown it open, and that complaint of the insufficiency of the gate had repeatedly been made by appellees to appellant’s section boss. The appellant claimed the gate was sufficient to turn stock unless left open by parties going through it. One of the appellees testified that on the evening of August tenth, about six o’clock, he drove their cattle from the pasture to the barnyard, leaving the horses in the pasture, and that he closed the gate. At about nine o’clock that evening the horses had got on the track through the gate and a train of appellant ran into the herd, doing the damage. The next morning the gate was found open about two feet, and tracks showed the horses had gone through the gate in single file. One of the appellees made an affidavit that the gate was securely closed the evening before the horses were killed, and stated he could not tell how the gate came open, unless some outsider left it open or the horses rubbed it open. The jury returned a verdict in favor of appellees for $525 and an attorney’s fee of $150.

The appellant had the gate in court and offered it in evidence to show its condition—that it was not rotten and dilapidated. The court sustained an objection to this offer. Error is assigned on this ruling. The introduction of substantive evidence is within the sound discretion of the court, and the admission of the gate if properly identified as the one in question, would not have been error. Quincy Gas & Elec. Co. v. Baumann, 203 Ill. 295; Painter v. People, 147 Ill. 444; Tudor Iron Works v. Weber, 129 Ill. 535; 4 Ency. of Ev. 272. There was much oral testimony concerning the condition of the gate offered by both parties and admitted, and the sustaining the objection to the admission of the gate was not reversible error.

The jury was asked to specially find: “Are you able to say from a preponderance of the evidence by what or by whom the gate in question was opened on the night in question and before the horses went upon the track?” This was answered “No.” This finding of the jury, it is urged, is inconsistent with the general verdict. The only claim of appellees upon which the judgment can be sustained on the evidence is that the gate, was so defective that the stock could open it and did open it. The affidavit of one of the appellees showed that the gate was either left open by some person going through or was rubbed open by the horses. Under this showing it is necessary for the jury to find from a preponderance of the evidence that it was opened by the horses or the general verdict for appellees cannot be sustained. Section 79 of the Practice Act of 1907 provides for special verdicts. The provision is: “when the special finding of fact is inconsistent with the general verdict, the former shall control the latter and the court may render judgment accordingly.” Manifestly if the gate was opened and left open by the negligence of some person, then the horses were not killed because of the negligence alleged in the declaration, and the general verdict cannot be sustained. Unless the jury should find from a preponderance of the evidence that the gate was opened by the stock because of its unsafe maintenance by appellant, and that the appellant either had or ought to have had knowledge of such unsafe condition and repaired the same, the verdict must be set aside. Indianapolis & St. L. R. R. Co. v. Hall, 88 Ill. 368. The jury having by its special verdict found that they were unable to say the gate was opened by the stock, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Alta K. Williams, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5,107.
    Passenger and cabbies—when instruction as to liability of latter erroneous. An instruction which requires the carrier of passengers to exercise the greatest degree of care and diligence reasonable and practicable for the safety of its passengers is erroneous if it omits the qualification that the degree of care required is all that human care, vigilance and foresight can reasonably do in view of the character and mode of conveyance adopted and consistently with the practical operation thereof.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 24, 1909.
    Pinkney & MoBoberts, for appellant.
    Edward D. McCabe and Ellwood & Meek, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action on the case brought in the Circuit Court of Peoria county by appellee against appellant to recover damages alleged to have been suffered, because of the negligence of appellant, by appellee while in the act of alighting from one of appellant’s cars on which she was a passenger. The averment of negligence in the declaration is that the car was suddenly and quickly moved and jerked with great force. On the trial there was a verdict returned: “We the jury find the defendant guilty and assess plaintiff’s damages at twenty-five and no/100 dollars ($2500.00),” signed by the foreman. The presiding judge read the verdict in open court to the jury. “We the jury find the defendant guilty and assess plaintiff’s damages at $2500” and said to the jury, “Gentlemen, is this your verdict?” To which query the members of the jury assented. Judgment was rendered on the verdict for $2500 from which judgment the railway company appeals.

Counsel have assigned for error and argued that the judgment could only he for $25 and that there was error in.giving the second instruction given at the request of appellee. The second instruction is as follows: “Ton are further instructed that if you believe from the greater weight of the evidence in this cause that the defendant company at the time of the alleged injury was a common carrier of passengers then the law required it to exercise the highest degree of care and diligence reasonable and practicable for the safety of its passengers.” This instruction requires a carrier of passengers to exercise the greatest degree of care and diligence reasonable and practicable for the safety of its passengers. No other instruction informed the jury what the measure of appellant’s duty was. The instruction as given omits the qualification that the degree of care required is all that human care, vigilance and foresight can reasonably do in view of the character and mode of conveyance adopted and consistently with the practical operation of its railway. The rule is that an instruction defining the duty imposed by law upon common carriers of passengers which by its terms fails to limit the care required in view of the character and mode of conveyance adopted and the practical operation of the carrier’s road, is reversible error. Chicago City Ry. Co. v. Shreve, 226 Ill. 530; Chicago City Ry. Co. v. Pural, 224 Ill. 325; Tri-City Ry. Co. v. Gould, 217 Ill. 317; N. Chicago St. Ry. Co. v. Polkey, 203 Ill. 225; Ratner v. Chicago City Ry. Co., 233 Ill. 174; Elgin, Aurora & Southern Tr. Co. v. Hench, 132 Ill. App. 535.

In view of the erroneous instruction given at the request of appellee this case is reversed and remanded. It is unnecessary to review the other questions argued.

Reversed and remanded.


author: Mr. Presiding Justice Thompson Dibell, J.

text:
    William A. Lee, Appellee, v. Republic Iron & Steel Company, Appellant.
    Gen. No. 5,099.
    1. Statute oe Limitations—when amendment does not state new cause of action. An amendment which, merely re-states in different form the same cause of action mentioned in the original declaration or which properly pleads a cause of action defectively stated in the original declaration, does not present a new and different cause of action.
    2. Statute oe Limitations—when amendment does not state new cause of action. The negligence complained of, to wit, the negligent repairing of a belt by means of staples or tacks, being stated in both the original and amended declarations, the striking out of inconsistent averments does not have the effect of setting up a new cause of action.
    3. Appeals and errors—when abstract insufficient to save question. An objection to evidence not noted in the abstract cannot be urged on review.
    4. Evidence—when expert testimony competent. The question at issue being as to whether or not a belt had been negligently repaired, expert testimony by those who have duly qualified from experience shown, is competent as to the proper method of repairing belts.
    5. Verdicts—when excessive. A verdict in an action on the case for personal injuries should only award pecuniary compensation and a verdict of such size as will produce interest larger in amount than the entire earnings of the plaintiff prior to his injury, is excessive, where it appears that after the injury such plaintiff was still able to earn almost as much as he had earned prior to the injury.
    Dibell, J., dissenting in part.
    Action in case for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed with remittitur.
    Opinion filed March 24, 1909.
    Statement by the Court. This is an action in case begun on December 24,1903, by William A. Lee, against the Republic Iron & Steel Company, and Joseph A. Worker, to recover damages for personal injuries sustained by the plaintiff in the steel mill of the company. The cause was tried in May, 1905, and a judgment rendered in favor of the plaintiff against the defendant company, and also in favor of defendant, Worker, for costs. The company prosecuted an appeal from that judgment to this court, where it was affirmed by an opinion filed April 20, 1906. 126 Ill. App. 297. The company prosecuted a further appeal to the supreme court where the judgment was reversed because of a material variance between the proof and the allegations of the declaration, and the cause was remanded to the Circuit Court for a retrial. 227 Ill. 246. On the cause being re-docketed in the Circuit Court, the plaintiff amended the three original counts of the declaration and filed an additional count by leave of court.
    The original counts of the declaration contained the following allegations as is stated in the opinion of the .Supreme Court: “The first count alleged that on September 11, 1903, appellant was, by its agents and employes, operating a steel mill in the city of Moline, in this state; that Worker was appellant’s master mechanic, and had power, and it was his duty, to keep the machinery and appliances of said company in repair and safe for its employes to work about; that appellee was on said date in the employ of and working for appellant as a laborer in its steel mill; that Worker had full control and authority over appellee, with full power to hire and discharge him; that appellee was also under the control and direction of one Constance V. Peterson, who had full control and authority over appellee and who stood to appellee as the representative of appellant, their common master; that on said day appellee was, by the order and direction of Worker and Peterson, commanded to assist in splicing or repairing a large two-ply belt, of the width of four inches and sixty or seventy feet long, which was used in the mill; that while so engaged he was obliged to climb to and stand upon an angle bar about two inches wide and six feet from the floor, and to support himself thereon by holding on to a revolving shaft about four feet above said angle bar, for the purpose of shifting or drawing said belt over said shaft; that it then and there became the duty of defendants to exercise care and prudence in providing a proper and secure place for appellee to stand upon, so that he could have the free use of both hands for shifting or drawing said belt over said shaft without danger, and also became the duty of said defendants to stop said revolving shaft while said belt was being repaired, but that they neglected their duty and failed to provide a proper platform to stand upon and failed to stop said revolving shaft; that while appellee was drawing said belt over said shaft, in the exercise of due care and without knowledge of the danger of his position, said belt caught appellee’s left arm between the belt and the shaft in such manner that he was drawn to and revolved with said shaft and was thereby injured.
    “The second count varies from the first in eliminating the allegations of negligence founded upon the failure to stop the shaft.
    “The third count differs from the first in that it alleges that the belt in question frequently got out of repair; that a portion thereof about four feet long should have been removed and its place supplied with another piece, but that defendants, not regarding their duty in that behalf, caused said portion to be fastened together with staples or tacks, thereby rendering the service of the plaintiff more hazardous, and that thereupon appellee, shortly before the injury, ‘objected to defendants about the use of said belt so tacked together’ and requested them to have the belt properly repaired, and that they promised appellee to have the same repaired; that appellee, relying on this promise, continued in the performance of his duties for a reasonable time to permit the performance of said promise, but that defendants wholly neglected and failed to provide a new belt or properly repair the belt in use, by reason whereof it frequently broke. This count then proceeds as the first, except it alleges that the injury was occasioned by reason of the defective belt and the defective manner of its repair, and by reason of the staples or tacks in the belt.”
    The third count, however, contained a further allegation which is inconsistent with the foregoing allegation of knowledge of the use of staples namely: “and while the plaintiff was' shifting or drawing the said belt over said shaft and without knowledge on his part of the danger of said defective belt and the defective manner of its repair, and by reason of the staples and tacks in said belt, said staples and tacks caught the left arm of the plaintiff,” etc..
    The first count was amended by alleging that plaintiff “was commanded by said Constance Y. Peterson to climb to and stand upon an angle bar, etc., and in obeying said command -it was necessary” to support himself, etc.; and also it was the duty of defendant company to provide a reasonably safe place in which to work and furnish the plaintiff with a reasonably sound, suitable and safe belt and appliances with which to work so that plaintiff and other employes engaged in the repair of said belt should not be injured. Yet the defendant not regarding its duty in that regard wrongfully, negligently, etc., failed to provide a suitable platform, etc., and negligently allowed said belt to be worn out, and improperly repaired with staples and tacks, which was unknown to the plaintiff, and the danger of repairing said belt with said staples or tacks and working about a belt repaired with staples o-r tacks was unknown to the plaintiff, all of which was known to the defendant company, etc., and while the plaintiff in the exercise of due care and without knowledge of the danger of his position or the improper manner in which said belt had been repaired, etc.
    The second count was amended by inserting allegations as to the orders given by Peterson concerning the repair of the belt and the danger of repairing it while it was suspended over the shaft in rapid motion, of which danger plaintiff did not know and which the defendant did know and also by inserting an allegation concerning the repairing with staples and tacks, similar to the allegation in the first count.
    In the third count, the amendment eliminated therefrom that portion of the count, which was construed to allege that the plaintiff had knowledge before the injury that the belt had been repaired with staples and tacks; and by inserting in lieu thereof an allegation that plaintiff had no knowledge of such repairs with staples, etc. The fourth count is substantially the same in its allegations as the amended third count.
    The defendant company filed pleas of the general issue and of the statute of limitations that the supposed cause of action in the amended declaration and each count thereof is another and different cause of action than the supposed cause of action in the original declaration, and the supposed cause of action in the amended declaration and each count thereof did not nor did any of them accrue within two years next before the filing of said amended declaration. The court sustained a demurrer of the plaintiff to the pleas of limitation, and the defendant company abided by its pleas. On a trial, the jury returned a verdict in favor of plaintiff for $11,000. Motions for a new trial and in arrest were overruled, and judgment was rendered on the verdict for $11,083, being the amount of the verdict and interest thereon to the day of judgment. The company appeals to this court a second time.
    Richard Jones, Jr., and Peek & Dietz, for appellant.
    W. R. Moore, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

It is contended that the cause of action stated in the amended declaration is not the same cause set forth in the original declaration, and that the court erred in sustaining the demurrer to the pleas of limitation^ The supposed negligence of the defendant company which was declared upon in the original third count was the alleged negligent manner in which the company had previously caused the belt to be repaired, to wit, with staples and tacks, and connected therewith the order, of the foreman to plaintiff, to assist in its repair at the time he was injured with the requirement that he should climb upon the elevated angle iron. This original count contained the two inconsistent allegations (1) that the “plaintiff repeatedly, and shortly before the injury, objected to defendants about the use of said belt, so tacked together, and repeatedly and shortly before said injury required defendants to have said belt properly repaired and said defendants promised” etc., and (2) “and while the plaintiff was shifting or drawing the said belt over said shaft and without knowledge on his part of the danger of said defective belt and the defective manner of its repair.” The proof showed on the former appeal that plaintiff had no knowledge of the repair of the belt by the use of staples or tacks, and there being an allegation that he had such knowledge, there was a_ variance between the proof and the allegation; the case was reversed because of the variance, the court holding that the allegations must be taken most strongly against the pleader. The amendment in the trial court after the case was remanded only eliminated one of the inconsistent allegations.

“In a case like the one under consideration the cause of action may be regarded as the act or thing done or omitted to be done by one, which confers the right upon another to sue,—in other words the act or wrong of the defendant which causes a grievance for which the law gives a remedy.” Swift & Co. v. Madden, 165 Ill. 41; Swift & Co. v. Gaylord, 229 Ill. 330. The original third count was a defective statement of plaintiff’s cause of action. The amendments filed to the declaration amount to nothing more than a re-statement of the cause of action. The negligent act of the defendant alleged in both the original and amended declarations was the negligent repairing of the belt by means of staples or tacks. “If a suit is brought in apt time and a declaration duly filed stating a cause of action, although imperfectly, subsequent amendments, though filed after the statute of limitations has run, will not be thereby barred if they amount to more than a re-statement, in different form, of the cause of action originally declared upon.” Swift & Co. v. Gaylord, supra. When an original declaration alleges two separate and distinct causes of injury in the same count and a demurrer is sustained on the ground of duplicity, additional counts filed more than two years after the cause of action occurred, alleging the causes of action in separate counts, but which were in the original defective count, do not state a new cause of action. North Chicago City Ry. Co. v. Aufmann, 221 Ill. 614. Failure in an action for negligence to allege due care on the part of the plaintiff amounts merely to a defective statement of the cause of action and does not bar the right to file an amended count more than two years after the injury occurred. In such a case a demurrer to the plea of the statute of limitations is properly sustained. Chicago City Ry. v. Cooney, 196 Ill. 466; Madl v. Chicago City Ry. Co., 121 Ill. App. 602. Amendments to original counts and an additional count merely restating in different form the same cause of action mentioned in an original declaration, or properly pleading a cause of action defectively stated in an original declaration, do not present a new or different cause of action. North Chicago Rolling Mill Co. v. Monka, 107 Ill. 340; Swift & Co. v. Foster, Admr., 163 Ill. 50; Griffin Wheel Co. v. Markus, 180 Ill. 391; C. & E. I. R. R. Co. v. Wallace, 202 Ill. 129; Chicago City Ry. Co. v. McMeen, 206 Ill. 108; South Chicago Street Ry. Co. v. Kinnare, 216 Ill. 451; City of Evanston v. Richards, 224 Ill. 444; Town of Cicero v. Bartelme, 212 Ill. 256. The amended declaration only pleading the same cause of action defectively stated in the different counts of the original declaration, there was no error in sustaining the demurrer to the pleas of the statute of limitations.

It is argued that the court erred in permitting the witnesses, Pickup, Witte and Peterson, to testify concerning the proper manner of repairing belts and that when belts are repaired with staples they have a tendency to straighten out so that the points would stick up, the objection of the defendant being that the witnesses were not experts in that line. The abstract does not show any objection to this evidence or exception to any ruling concerning this evidence. By rule 16 of this court abstracts must show every exception relied upon and that part of the record relied upon which supports the ruling complained of. These not' being shown the defendant is not in a position to raise the question. The abstract does show that Pickup and Witte testified that they had worked for the defendant company in the line of repairing belts for several years, and Peterson testified that he had worked around belts for twenty-five years and that he well knew how they should be repaired. The witnesses properly qualified as experts, and there was no error in admitting their testimony even if an objection was made thereto.

The evidence in this record is very similar to the evidence in the former appeal as it is stated in the former opinion of this court and the Supreme Court. As was stated in the opinion of this court: “A careful reading of the testimony convinces us that the court properly submitted to the jury to determine whether the plaintiff was guilty of contributory negligence, and a consideration of the whole evidence leads us to conclude that we would not be justified in disturbing the verdict and judgment on the ground that they are contrary to the testimony. This case in many respects is not unlike Hartrich v. Hawes, 202 Ill. 334.”

It is very earnestly insisted that the plaintiff assumed the risk arising from the alleged negligence provable under the first two counts of the declaration as amended. Even if that contention was correct still the judgment can be sustained under the remaining counts, but we are of the opinion that by the amendment of the first and second counts they merely state in a different form the cause of action stated in the third count. If there is one good count the judgment will be sustained if supported by the evidence. Consolidated Coal Co. v. Scheiber, 167 Ill. 539; Olson v. Kelly Coal Co., 236 Ill. 502.

The only other question presented for review is the contention that the verdict is excessive. The plaintiff, a blacksmith’s helper twenty-four years of age, sustained the loss of his left arm below the elbow. The evidence shows he was earning before the injury one dollar and sixty cents per day, working eight hours. He now earns one dollar and fifty-three cents per day working twelve hours. If he worked the same number of hours his annual financial loss would be less than two hundred dollars. Interest at five per cent on the amount of the judgment would be $550 and he would have the principal in addition. It is true he has suffered much pain and will be inconvenienced all his life. It is also true that a pecuniary value cannot be placed upon an arm, but the law only gives pecuniary compensation, unfeeling and heartless though it may appear; but we must hold a verdict to be excessive which gives him at once the principal of a sum the interest of which is larger than the wages he was earning at the time of the injury, when it appears the plaintiff is still able to earn near the amount of wages he earned before the injury. This court will require a remittitur of $3000 which will leave his earnings and interest $200 a year in excess of his earnings before the injury and he also will be the owner of the principal of the judgment in addition.

This opinion will be lodged with the clerk, and if a remittitur of $3000 is filed within seven days it will be affirmed at the costs of the appellee; otherwise it will be reversed because of the excessive damages allowed.

Appellee having filed herein a remittitur of $3000 the judgment will be affirmed for the balance, at the costs of appellee.

Affirmed with remittitur.

Dibell, J.

I dissent from so much of the foregoing opinion as relates to the amount of the verdict, and requires a reduction of the judgment or a reversal.


text:
    Jarvis R. Burrows et al., Appellants, v. Mary C. Merrifield et al., Appellees.
    Gen. No. 4,990.
    1. Receiverships—taxation of costs upon dismissal of Mil. Upon dismissal of a bill at the instance of complainant upon which a receiver has been appointed, the costs of the receivership should be taxed against such complainant, unless the allegations of the bill which justified the appointment had been sustained and unless the allegations of the answer which denied the allegations of the bill have been refuted.
    2. Receiverships—when taxation of costs reversed. In order that the court may properly award receiver’s fees and allow for attorney’s fees incurred by the receiver, evidence should be heard; and in order that the allowances made may be sustained when attacked on review the evidence so heard must be preserved by certificate of evidence or else appropriate recitals should be contained in the decree.
    Bill in equity. Appeal from the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding.
    Heard in this court at the April term, 1909.
    Rehearing denied June 10, 1909.
    Affirmed in part, reversed in part and remanded.
    Opinion filed March 24, 1909.
    Statement by the Court. On May 28, 1907, Jarvis R. Burrows and Thomas W. Burrows, appellants, filed a bill in equity against Mary C. Merrifield, Louis W. Merrifield, Lilla M. Wood, George R. Wood, and the Western Cottage Piano and Organ Company, appellees, to the June term of the Circuit Court of LaSalle county. The bill alleges in substance that the defendant, the Western Cottage Piano and Organ Company, which will hereafter be termed “the company,” is an Illinois corporation with a capital stock of $100,000 divided into shares of the par value of $100 each; that the complainants own one-half of the capital stock and the defendants, Merrifields and Woods, own the other half; that at the time of filing of the bill the board of directors was composed of five persons; that the complainants were represented on the board by themselves and the defendants by the two Merrifields and George R. Wood. The bill alleges that the complainants have endeavored to change the by-laws so that they would have an equal voice in the affairs of the company. There are allegations that Louis W. Merrifield negotiated certain notes of the company, endorsed by Thomas W. Burrows and L. W. Merrifield, and that L. W. Merrifield had received the proceeds of the notes and had used the proceeds and a check of the company for $10,912.52 to pay a claim of $30,606.25 allowed in favor of one Lucy D. Merrifield against the estate of L. B. Merrifield, deceased. It is also alleged that the Merrifields had attempted to make George R. Wood superintendent of the company at an annual salary of $2500; that the Merrifields had appropriated certain described property belonging to the company; that the company is doing a large business and has contracts unfulfilled to the amount of $125,000, and has a bi-weekly pay roll of $3,000; that the men have not been paid for three weeks and there are current bills unpaid to the amount of $30,000; that the Merrifield family with their directors are fraudulently managing and directing the affairs of the company for their own benefit and refuse to permit any change in the officers or directors of the company that will permit complainants to have any voice in its affairs; that Mary C. Merrifield has brought an action at law in the Circuit Court of LaSalle county against Thomas W. Burrows, L. W. Merrifield and the company on certain notes amounting tó $20,000 which she pretends to have purchased, and that she ought not to be permitted to prosecute said suit and that George B. Wood should be enjoined from receiving the salary voted to him. The bill prays that the defendants be required to make discovery as to certain facts concerning the notes sued on by Mary C. Merrifield and for an accounting; that the resolution employing George B. Wood be declared void; that Mary C. Merrifield be enjoined from further prosecuting her suit and that some suitable person be appointed receiver to continue the business of the company.
    A notice was served on the defendants of an application for the appointment of a receiver. On May 29th the Ottawa Banking and Trust Company was appointed receiver. On the 24th of June the defendants filed a joint and several answer to the bill. The answer sets up various purchases and transfers by which the complainants had become the owners of one-half of the stock of the company; that Thomas W. Burrows is the administrator of L. B. Merrifield, deceased; denies that a claim was allowed in favor of Lucy D. Merrifield for $30,606.25 but states that a claim was allowed in favor of A. H. Merrifield, and that the claim was based upon a note given by Thomas W. Burrows to A. H. Merrifield for the purchase of certain stock in the company from A. H. Merrifield, which note was endorsed by Leonard B. Merrifield, and that the said indebtedness was the indebtedness of Thomas W. Burrows. The answer states what the defendants allege to be facts concerning the notes upon which Mary C. Merrifield has brought suit at law. It states that Thomas W. Burrows as vice president of the company, and not Louis W. Merrifield, drew the check for $10,912.52, of which complaint is made in the bill, and that said Thomas W. Burrows applied the same in payment of the claim of $30,606.25 allowed against tlje estate of L. B. Merrifield, thereby paying his own personal indebtedness; states that Lonis W. Merrifield is the president of the company, that Thomas W. Burrows is the vice president and treasurer and that Jarvis B. Burrows is the secretary; that the by-laws of the company provide that the treasurer shall have the care and custody of all moneys and credits, and that the secretary shall have charge of all books and papers and shall countersign all notes and contracts requiring the signature of the company. The answer further states that the Merrifields and Woods are the absolute owners of one-half of the stock of the company, and that Mary 0. Merrifield has possession of the certificates of the other half of the stock pledged to her to secure an indebtedness to her from the complainants; denies all fraud and underhanded dealings of the defendants, and denies the use of any funds of the corporation for the use and benefit of any of the defendants. The answer admits there was a pay roll of $2000 past due, and states arrangements were made to secure the money to meet that pay roll; denies that Jarvis B. Burrows was requested personally to endorse the note, and states that Jarvis' B. Burrows was requested to countersign the same as secretary, but that he peremptorily refused to do so. The answer makes various charges against the complainants, among others that Thomas W. Burrows and Jarvis B. Burrows took from the vaults of the company a promissory note for $30,045, which the complainants had executed and delivered to the company, and that they refuse to return said note, and that Jarvis B. Burrows as secretary had directed the bookkeeper to make certain entries concerning that note for the purpose of defrauding the company, and that the complainants were owing the company more than $3000 for interest past due on said note. The answer alleges that before the complainants became stockholders the business was very prosperous; that since the Burrows have become stockholders and directors, in March, 1903, a dividend of fifty per cent was declared and that in December, 1903, a further dividend of twenty per cent was declared; that these dividends were declared and paid from profits accumulated before the complainants became stockholders, and that a further dividend of ten per cent was declared in 1906; asserts that the assets of the company are now more than three times the amount of its indebtedness, and there is no valid reason for the appointment of a receiver; that if the complainants will pay the company what they owe it, the company will have plenty of money to meet its pay roll; that the defendant directors have at all times been willing that the proper officers should have and they have authority to borrow money to pay its indebtedness and to pledge what assets are necessary, but the complainants refuse to concur in such course; states that complainants are conspiring together to obtain exclusive control of the business and to force the other stockholders to sell to them their stock at less than its actual value; that in April, 1907, the defendants offered to complainants to give or take for the stock of the respective parties $225 per share; that the defendants offered to buy out complainants’ stock or the defendants would sell to complainants on that basis. That later, Mary C. Merrifield offered to complainants to buy or sell on the basis of $215 per share, but the complainants refused to either buy or sell on that basis; the defendants deny that it was impossible to continue the business with its present board of directors, provided the complainants would act fairly and honestly and not for their own personal gain, and states that the complainants are the only persons who refuse to recognize the lawful authority of the. company ; and deny all fraud or conspiracy, etc. The bill was duly sworn to, and waived the oath to the answer. The answer was not sworn to.
    The record does not show that any replication was filed to the answer. The complainants took no action in the further prosecution of the cause after the filing of the answer, but on July 15th on motion of the defendants, the case was referred to the master to take the proofs. On July 31st the complainants gave notice that on August 2nd they would apply for leave to amend the bill. The record does not show that a motion was ever made pursuant to this notice. On October 7th-—at the June term of court, the term to which the bill was returnable—the complainants made a motion to dismiss the bill without prejudice, and in support of this motion filed an affidavit made by themselves, with a letter attached from Sears, Roebuck & Company.
    On the second of November, at the October term, the receiver filed a petition for compensation. On the fifth of November the court made an order allowing $2026.66 to the general manager employed by the receiver while it was in charge of the business, and $1000 to the receiver as compensation for the services of the receiver. Subsequently to the making of the order for compensation to the receiver, the receiver filed a report, on the 18th day of November in which it listed amongst the liabilities incurred by the receiver, $200 attorney’s fees. On November 18th the defendants entered a motion that the allowance to the receiver of $1000 and its solicitor’s fees be taxed as costs against complainants. There was an order that the hearing on this motion be postponed to November 26th and ordering that $200 be paid by the receiver from the moneys on hand in full of attorney’s fees, and that the liabilities incurred by the receiver, including the receiver’s compensation and superintendent’s charges remaining unpaid, be a first lien upon the assets of the company, and that the same be paid by the company from cash on hand and from moneys received by it from bills etc. The motion to tax the receiver’s compensation and attorney’s fees to complainants was not disposed of at the October term. On the 13th of January, 1908, at the January term the complainants again moved for leave to dismiss their bill without prejudice. The motion of November 18th was heard on February 1st and on the 18th of February the court ordered that the receiver’s compensation of $1000 and its solicitor’s fees be taxed as costs against the complainants. From this order the complainants appeal to this court and assign for error (1) that the court erred in sustaining the motion to tax the allowance of receiver’s compensation and solicitor’s fees to the complainants, and (2) that there was error in the allowance of the receiver’s compensation and the solid tor’s fees in that there is neither any evidence preserved in the record upon which to base the allowance nor is there any finding of facts in the decree.
    Eddy, Haley & Wetten and Butters, Armstrong & Ferguson, for appellants.
    Widmer & Widmer and McDougall & Chapman, for appellees.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

A motion has been made by the appellants to strike out certain parts of the statement of facts and argument from the brief and argument filed on behalf of appellees, for the reason that they are based upon the unsworn answer of defendants. What is said in said brief and argument is based upon the record.

It is contended by appellants that the receiver was appointed without objection, and that such appointment was for the mutual benefit of all parties concerned and for that reason the receiver’s fees should be paid out of the common property—the property of the corporation. • •

“The amount of the receiver’s compensation is generally held to be a part of the costs in a cause, and falls within the meaning of the term ‘costs’ which are awarded to the prevailing party.” McAnrow v. Martin, 183 Ill. 467. Where a receivership is procured under the assertion of an unjust and wrongful claim, and the receiver takes possession of the property, the court can protect the injured party by returning the property he was divested of without its being diminished to pay the receiver’s charges. Highley v. Deane, 168 Ill. 266; Leigh v. National Hollow Brake Beam Co., 224 Ill. 76. “The question of the distribution of the. costs in a chancery proceeding is largely a matter of discretion with the trial court, and a court of review will not interfere unless such discretion has been abused.” Leigh v. National Hollow Brake Beam Co., supra; Askew v. Springer, 111 Ill. 662.

The evidence heard on the motion to tax the costs to complainants shows that the defendants did not consent to the appointment of a receiver, but objected to the appointing of a receiver, and when it was apparent a receiver was to be appointed by the court the defendants then took part in the selection of the party to be the receiver. This was apparently for the purpose of avoiding, as far as possible, damage that might result to them from the appointment of a receiver. The allegations in the hill if true were sufficient to procure the appointment of a receiver. The answer filed denied all the fraudulent charges in the bill and makes counter charges of a very serious nature against the complainants.

Complainants took no further action towards the prosecution of the suit after the answer was filed; three weeks thereafter on motion of the' defendants the cause was referred to the master to take the proofs of the respective parties. Thereafter the complainants gave notice that they would move to amend their bill, but never took any action on that motion. If the statements of the answer are true, then the only cause for the company not having money to pay its employes was the failure of the complainants to pay interest upon a note they owed to the company, or the refusal of Jarvis R. Burrows, who was the secretary of the company, to countersign a note for a loan to the corporation for which arrangements had been made. The company had ample assets to conduct its business and pay all its financial obligations. The company had declared and paid very large dividends on its capital stock under the same management it had at the time the receiver was appointed and had large assets, and was apparently doing a prosperous business. Its resources on May 29, 1907, were $223,248.42, while its liabilities, not including its liability on its capital stock, only amounted to $66,056.87.

There were but six stockholders in the corporation, five of whom were directors. The two Burrows who owned one-half of the stock were directors, while the other half interest was represented by the two Merrifields and George B. Wood. Complainants allege in the bill that they were insisting that the number of directors should be increased so that their stock might be represented by three directors, although the only stockholder who was not a director is a defendant.

At the term of court at which the suit was returnable complainants moved to dismiss the bill without prejudice, and in an affidavit in support of the motion say it is for the best interests of all the parties that the suit be dismissed. No change is shown in the conditions that existed when the bill was filed. A letter attached to the affidavit of complainants in support of the motion shows that because of the receivership, business relations of the company long established were about to be lost, or in other words that the appointment of the receiver was a mistake. The evidence heard on the motion to tax the receiver’s compensation to the complainants shows that the refusal of the secretary to countersign the note, as such secretary, was one reason why money was not raised to meet the pay roll. The affidavit of one of the complainants states that the business which was about to be lost through the appointment of the receiver amounted to about $100,000 per year. The complainants voluntarily dismissed their bill without prejudice, thereby reserving the right to renew the controversy should they see fit to do so. Such a dismissal should he at the complainants’ costs. Langois v. Matthiessen, 155 Ill. 230. To tax the costs against the property of the company, it was necessary that the material allegations of the bill should be sustained by proof after the answer had been filed. The trial court in the exercise of its discretion taxed the compensation of the receiver and the attorney’s fees of the receiver’s attorney to the complainants. We see no abuse of discretion in the order, and hold that such taxation was proper, and we affirm that part of the order.

It is argued that the court should have heard evidence on the value of the receiver’s services and attorney’s fees, and the evidence should have been preserved by a certificate of evidence,' or there should be a finding of facts from the evidence in the decree. The record shows that the Ottawa Banking and Trust Company acted as receiver for the company from May 29, 1907, to November 18th of the same year and was responsible for the conduct of this company’s extensive business, which had a pay roll of over $1000 per week and resources amounting to $223,248.42 when the receiver was appointed. The rule is firmly established that the facts upon which decrees in chancery are based must appear in the record, or the decree must recite the hearing of evidence and the facts found from the evidence. There is no evidence in the record tending to show the reasonable value of either the receiver’s compensation or that of its counsel. A court should not, without evidence showing what is proper compensation in a given case, determine and award the compensation to be paid to a receiver; if it fails to follow such rule, a reviewing court may, upon appeal, set such award aside. Heffron v. Rice, 40 Ill. App. 244. An allowance of a solicitor’s fee cannot be sustained where no evidence showing what services the solicitor performed, or the value thereof, is preserved in the record. Metheny v. Bohn, 164 Ill. 495; McMullen v. Reynolds, 209 Ill. 504; Jevne v. Osgood, 57 Ill. 340; Hunter v. Hunter, 121 Ill. App. 380. While courts have a general knowledge of the value of such services, yet if they may fix such compensation without any evidence as to their reasonable value, such a practice might lead to grave irregularities. Because of the failure to preserve any evidence of the value of the services performed, either by a recital in the decree or by a' certificate of evidence, that part of the decree fixing the amount of the receiver’s compensation and its attorney’s fees must be reversed and the cause remanded for a retrial on those questions. It does not appear that the defendants took any part in procuring the assessment of such compensation, and the receiver having been appointed on the motion of complainants, it was their duty to see that the amount of its compensation was properly assessed. One half of the costs of this appeal are taxed to the complainants and one-half to the company.

Affirmed m part, reversed in part and remanded.


text:
    Theodore B. Converse, Receiver, Appellant, v. Emerson, Talcott & Company, Appellee.
    Gen. No. 5,076.
    1. Corporations—poioers of. A corporation organized under the laws of the State of Illinois cannot legally exercise any other or further powers than those expressly set forth in its charter or necessarily implied therefrom.
    2. Corporations—what ultra vires. The act of an Illinois corporation organized for purely manufacturing purposes in becoming an incorporator and in subscribing for stock of a corporation, even though the final object sought to be accomplished may be the liquidation of a debt, is ultra vires and void, and no stock liability can be enforced upon such a subscription.
    3. Estoppel—when does not avail against defense of ultra vires. A contract beyond the power of a corporation is void and the fact that the corporation has received the benefits thereof or that other parties have acted thereunder, does not estop the corporation from raising its defense of ultra vires.

    Assumpsit. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    E. M. St. John, for appellant; J. H. Chandler and Davis, Kellogg & Severance, of counsel.
    E. P. Lathrop and Egbert Lathrop, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a suit in-assumpsit begun by Theodore E. Converse, receiver of the Minnesota Thresher Manufacturing Company, appellant, hereinafter called the thresher company, against Emerson, Talcott & Company, appellee, a corporation organized under the laws of Illinois, seeking to recover upon a stock liability under the laws of Minnesota. There is no question raised as to the sufficiency of the pleadings to properly present the question of the liability of the appellee and its defense thereto. The questions involved are questions of law upon stipulated facts. Emerson, Talcott & Company is a corporation organized under the general incorporation act of the state of Illinois “for the prosecution and carrying on the business of the manufacture and sale of agricultural machinery, tools and other articles” and has no other privileges or powers under its charter.

In 1883 the Northwestern Manufacturing & Car Company, hereinafter called the car company, a corporation under the laws of the state of Minnesota doing business in Minnesota, bought goods of the appellee and became indebted to it in the sum of $1904.14, for which sum it took the note of the car company. In 1884 the car company became insolvent and subsequently thereto, in November, 1884, the thresher company, a corporation, was organized under the laws of Minnesota by creditors and stockholders of the car company. The articles of incorporation of the thresher company provide that the objects for which it is incorporated are the purchase of the capital stock, evidences of indebtedness and assets of the car company, and the manufacture and sale of steam engines and all kinds of farm machinery. Under the plan of organization of the thresher company, the creditors of the insolvent company had the right to subscribe for and accept preferred stock in the new company and pay for the same by assigning their claims against the insolvent company. The preferred stockholders of the insolvent company were to accept common stock in the new company in exchange for common stock in the old company. The appellee joined in the organization and subscribed for thirty-eight shares of the par value of $50 of the preferred stock in the new company on April 29, 1885, and thereafter assigned to the thresher company the note of $1904.14 against the insolvent car company, and received the thirty-eight shares of preferred stock in the thresher company and a note of the thresher company for $26.73 representing the difference with accrued interest, between the claim against the old company and the face value of the stock subscribed for and received by it.

The appellee has held the thirty-eight shares of preferred stock ever since. No dividends have ever been paid on it. The constitution of the state of Minnesota provides, “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.”

In 1901 the thresher company became insolvent, anda a creditor having obtained a judgment against it, procured the appointment of Theodore E. Converse as receiver. The assets of the thresher company were insufficient to pay the creditors, and having been exhausted, proceedings were had in the Minnesota courts whereby an assessment of $18 was levied on each share of stock of the thresher company for the purpose of providing a fund to pay the debts of the company proved up before the receiver. Not realizing sufficient money from the first assessment to pay the debts, a second assessment of $32 per share was levied. Appellee failed and refused to pay either assessment, and the receiver brought this suit to collect such assessments.

The case was tried without a jury and propositions of law were submitted to the court presenting the legal questions involved. The court found in favor of the defendant, appellee, and rendered judgment against the receiver for costs. The receiver appeals.

No argument has been made upon the propriety of the ruling upon any of the propositions of law submitted to the trial court, but counsel have presented and argued the merits of the case as to the propriety of the judgment rendered upon the agreed facts and the law applicable thereto, appellant contending the judgment rendered is erroneous and that it should have been in favor of appellant. The position taken by counsel for appellee is that under the charter powers of appellee it had no right to subscribe for stock in a corporation, and that the subscription for thirty-eight shares of stock and the receipt of such stock are ultra vires and void, and that no suit can be maintained thereon.

A corporation organized under the laws of the state of Illinois can legally exercise no other or further powers than those expressly set forth in its charter or necessarily implied therefrom. The charter of appellee only permits it to engage in the business of manufacturing and selling farm machinery and other articles. The thresher company by its charter was authorized to engage in the acquisition of stock of the car company and the debts and assets of the car company. The courts of Minnesota have held that the acquisition of such stock and assets was a business to be engaged in independently of the manufacturing business. Merchants National Bank v. Minnesota Thresher Manufacturing Co., 90 Minn. 144.

The appellee company did not receive stock in the thresher company in payment of its debts, but took an active part in the organization of the thresher company for the purposes for which it was organized, which includes the purely speculative business of buying certificates of stock, debts and assets. The act of the appellee in becoming an incorporator of or subscriber for the stock in the thresher company was ultra vires its charter and void, and no suit can be maintained thereon. People v. Pullman Co., 175 Ill. 159; People v. Chicago Gas Trust Co., 130 Ill. 268; McCoy v. Columbian Exposition Co., 186 Ill. 360; First Nat. Bank v. Converse, 200 U. S. 425; Peshtigo v. Great Western Tel. Co., 50 Ill. App. 624; National Home Building Assn. v. Home Savings Bank, 181 Ill. 35; Steele v. Fraternal Tribunes, 215 Ill. 194.

The law has been adjudged adversely to the contention of appellant in New York and Connecticut in suits brought by appellant to collect these assessments. Converse v. Bank, 79 Conn. 163; Converse v. Bank, 79 Conn. 603; Converse v. Stewart, 105 App. Div. N. Y. 478.

In Martin v. Ohio Stove Co., 78 Ill. App. 108, it is said “A corporation cannot become a stockholder in another corporation. * * * In the absence of express authority it cannot become an incorporator by subscribing for shares of a new corporation and it cannot do this indirectly through persons acting as its agents or tools.”

Appellant insists that the appellee is estopped to insist upon the doctrine of ultra vires. In Nat. Home Building Assn. v. Bank, supra, the principle is laid down that a contract beyond the power of a corporation is void, and the fact the corporation has received the benefits thereof, or the other parties have acted thereunder, does not estop the corporation from raising the defense of ultra vires. The same doctrine is announced in First Nat. Bank v. Converse, 200 U. S. 425, and Steele v. Fraternal Tribunes, 215 Ill. 194. Courts of this state having so clearly passed upon the principle involved, it is- unnecessary to refer to or cite the decisions of other states. On the agreed facts the court could give no other valid judgment than the one rendered. The judgment is therefore affirmed.'

Affirmed.


text:
    Nellie E. Plante, Administratrix, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 5,111.
    1. Evidence—when proof of ordinance sufficient. Held, that the book purporting to contain the ordinance in question and to be “published by authority of the president and board of trustees,” sufficiently established the existence of such ordinance.
    2. Gontbibutoey NEQLiGENCE—how question of, as applied to person seeleing to cross railroad trades, determined. If the evidence is conflicting and is of such a character as might justify the inference that the deceased approached the tracks from a direction which obstructed his view of the oncoming train, the question of contributory negligence is for the jury.
    3. InstbuctionS'—must not assume facts in dispute. It is proper for the court to refuse to give an instruction which assumes the existence of facts in dispute.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Kankakee county; the Hon. Fbank L. Hoopeb, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    W. B. Hunter, for appellant; John G-. Drennan, of counsel.
    J. Bert Miller, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an appeal by the defendant, the Illinois Central Railroad Company, from a judgment for $750 recovered by the plaintiff, administratrix of Eugene Plante, deceased, in an action wherein it is alleged the defendant wrongfully caused the death of plaintiff’s intestate. The appellant operates a double track railroad which runs north and south, crossing the east and west streets of the village of Manteno. The deceased was killed at the Chestnut street crossing of appellant’s railroad in that village, and left surviving a widow, a daughter aged sixteen and a son aged twenty-one.

The appellant urges as grounds for reversal: (1) that the deceased was killed because of his own contributory negligence- in not using due care in crossing the appellant’s railroad; (2) that the court erred in refusing two instructions requested by appellant; (3) that there was error in admitting in evidence an ordinance of the village of Manteno over appellant’s objection.

The declaration alleges in different counts, that the appellant was negligent in failing to ring a bell or blow a whistle; that an ordinance of the village provides that no railroad shall run any train within the village limits at any greater rate of speed than ten miles an hour, and that disregarding the ordinance the appellant ran its train at a speed in excess of ten miles an hour.

The appellee offered in evidence the title page, with sections 255 and 286, and the certificate of the clerk on the last page thereof, of a hook purporting to be the Municipal Code of the village of Manteno. From the title page the volume purports to be a revision of the ordinances of the village of Manteno, and that it is “published by authority of the president and board of trusteesSection 255 on page 76 of the ordinances, limits the speed of passenger trains to not exceeding ten miles an hour. Section 286 of the ordinances provides for the revision and publication in book form of the ordinances of the village of Manteno, and recites that when published as required by law, with the certificate of the president and village clerk, under the corporate seal of the village, the ordinances shall be in force. The volume is signed by the president of the board and the clerk, and has a certificate of the clerk, under the corporate seal of the village, that the foregoing is a true copy of the original ordinance.

The proof of the ordinance clearly brings them within section 65 of chapter 24 of the statute concerning cities, villages and towns, and there was no error in admitting the ordinances in evidence.

Regarding the question of contributory negligence of the deceased, the evidence discloses that he was killed by a south bound passenger train on the west track of appellant’s railroad; that a freight train passing north crossed Chestnut street just before the passenger train reached the street from the other direction. The proof also shows that the passenger train was running at a rate of somewhere between twenty-five to forty-five miles an hour. The engineer states that the train was running sixty miles an hour, when it entered the village limits, eighty rods north of Chestnut street. The evidence is conflicting as to which direction the deceased was going when killed. A few minutes before the accident he was seen west of the track going east on the sidewalk. Two persons testify to having seen him at the time he was killed. The engineer of the passenger train states that he saw him approach the track from the west. The brakeman who was on the rear end of the freight train which crossed the street going north just before the deceased was killed states that he saw the deceased cross the east track going west just after the freight train crossed the street, and going upon the west track where he was struck by the passenger train. The appellant admits that it was running its train at a greater rate of speed than that, prescribed by the ordinance. The evidence show's that a person approaching the railroad crossing from the west has a clear and unobstructed view of the crossing, and that for a long distance up and down the track there is nothing to prevent a traveller on the street seeing the train, with the exception of a coal shed which stood thirty-five feet west from the track on the north side of Chestnut street. If the deceased came from the west then it might well be claimed that he was guilty of contributory negligence in failing to see the train. On the other hand if he came from the east the passage of the freight train and the noise made by it might be a reasonable excuse for failing to see or hear the passenger train. In such case it is a question of fact proper to be submitted to the jury to say whether the deceased contributed to his death or not. We are of the opinion that from the admitted violation of the ordinance by the speed of the passenger train, and the proof that the freight train shut off the view of the passenger train coming from the north, from a person approaching the railroad tracks from the east, a jury might reasonably find in favor of appellee.

The first instruction asked by the appellant which was refused, assumed that the deceased approached the south-bound track from the west. This was a question over which there was a controversy and it would have been error to have given the instruction. There was no error in refusing the third instruction, for the reason that the principles contained in that instruction were all embodied in the fifth, seventh and eighth instructions given at the request of appellant.

Finding no error in the case the judgment is affirmed.

Affirmed.