text:
    Mary Ketchum, Appellee, v. John S. Sears, Appellant.
    Gen. No. 5270.
    Pbincepal and agent—when latter not personally hound hy promise. The principal being disclosed, the agent is not personally bound by a promise which he makes for his principal.
    Assumpsit. Appeal from the City Court of Aurora; the Hon. E. M. Mangan, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed with finding of facts.
    Opinion filed March 11, 1910.
    Rehearing denied April 13, 1910.
    Sears & Solfisburg, for appellant.
    William J. Tyers and J. O. James, for appellee; A. H. Switzer, of counsel.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee sued appellant in assumpsit, alleging that he agreed to pay her $900 if she would execute, acknowledge and deliver to him a deed of certain real estate in DuPage county; that she did execute, acknowledge and deliver to him a deed of said real estate ; and that he had not paid her said sum. Appellant pleaded the general issue. Upon a trial appellee had a verdict for $900; a motion by appellant for a new trial was denied, appellee had judgment, and appellant prosecutes this appeal therefrom.

Leander E. Ketchum and appellee were husband and wife, and were not living together. Leander E. Ketchum lived in South Dakota, and owned a farm in DuPage county, Illinois. Their son, James Gr. Ketchum, rented said farm from his father, and his mother lived with him thereon. There was a mortgage or trust deed upon the farm securing a debt; and there was a judgment against Leander E. Ketchum which was a lien on the farm, and there was a lien for taxes thereon. Litigation was also pending in said county against Leander E. Ketchum upon certain notes which he had given to one Henry Edwards, then deceased, to which Leander E. Ketchum was seeking to interpose certain defenses. One Jacob Weidert offered $12,000 for the farm and Leander E. Ketchum and appellee agreed to sell it to him for that price. Leander E. Ketchum and appellee agreed verbally that appellee should receive one-third and Leander E. Ketchum two-thirds of the net proceeds of the sale, after payment of the debt secured on the farm, and the judgment and the taxes, and the amount which the Edwards estate might recover, and perhaps some other obligations. Weidert paid $500 down. The agent who negotiated the sale of the farm was paid therefrom $200 for his commissions, and Leander E. Ketchum was paid $200 and appellee $100. Appellant was a member of the firm of Sears & Solfisburg, lawyers, practicing at Aurora. They were attorneys for Leander E. Ketchum; A. H. Switzer, practicing law at Aurora, was attorney for appellee. Appellant prepared a deed of the farm from Leander E. Ketchum and appellee to Weidert, procured its execution by Leander E. Ketchum, and on February 25, 1909, took it to the office of Switzer to procure its execution by appellee, who was there present. An instrument had previously been prepared as of that date for execution by Mr. and Mrs. Ketchum, which set out their agreement as to the sale of the farm and division of its net proceeds, and which provided that Mrs. Ketchum was to receive from the farm at least $1,000 in any event. Leander E. Ketchum had already signed it. Switzer interlined certain words in that contract and Mrs. Ketchum then signed it Appellant raised some question as to the interlineations, and accordingly appellant dictated and Switzer wrote another agreement to take the place of the one already signed. It differed but little from the first paper, except that while it gave appellee one-third of the net proceeds, it did not specify what should be deducted from the gross proceeds, and it did not state that appellee was to receive $1,000 in any event, but that was plainly implied, for during that interview and apparently before the second paper was written, appellee had been promised by appellant that $900 should be paid her that evening, after the deed had been recorded, and as she had received $100 out of the first payment, the $900 she was then to receive would assure her the $1,000. At this time the entire purchase money had been put into the hands of Sears & Solfisburg, the attorneys for Leander E. Ketchum, but they had agreed not to distribute it till the deed had been filed for record at the county seat of DuPage county and it had been ascertained that no other judgment liens had intervened. Then Sears & Solfisburg were to pay off the mortgage or the trust deed, the judgment and the taxes, and were to pay appellee $900. If the claim of the Edwards estate was put into judgment for the full amount of the notes, the one-third of the net proceeds of the farm which appellee was to receive would not amount to $1,000 but it was expected that that demand could be substantially reduced, and it was considered safe to pay appellee the $900 in addition to the $100 previously paid, and it was hoped that the Edwards demand might be so far reduced that still more would be realized for appellee. Appellee executed and acknowledged the deed and delivered it to appellant, and it was filed for record. Appellant did not pay appellee $900 that day, but shortly thereafter Solfisburg went to the office of Switzer with a check for $900 dated on said February 25, 1909, payable to the order of appellee and signed by Sears & Solfisburg, and endorsed by Leander E. Ketchum and offered it to Switzer and demanded the second contract between Leander E. Ketchum and appellee dated February 25. Switzer testified that Solfisburg demanded a receipt in full but his further examination showed that he understood that Solfisburg was calling for the second contract dated February 25, and that was not a receipt in full. Switzer refused to deliver it, and Solfisburg did not deliver the check, and the $900 has not been paid. The check is still held by Sears & Solfisburg or by Leander E. Ketchum, and appellee offered it in evidence.

In this suit appellee seeks to recover from appellant the $900 which she says he promised to pay her for executing, acknowledging and delivering to him the deed, and which she declares to be the promise upon which she parted with the deed, and which, it is argued in her behalf, had nothing to do with the agreement of her husband to pay her one’-third of the net proceeds of the farm. She has also brought a suit against her husband upon his written agreement to pay her one-third of the net proceeds, and has garnisheed appellant in that suit. Their son, James G-. Ketchum, has also sued Leander E. Ketchum, and has garnisheed appellant. That appellee claims the right to recover $900 from appellant on his personal promise, without affecting her right to recover from her husband the entire one-third of the net proceeds of the sale of the farm, regardless of the $900 to be collected from appellant, is clear from the brief and argument filed here by appellee’s counsel. After stating the evidence of his promise to pay her $900 they say: ‘ ‘ This promise was made freely by appellant, and no conditions whatsoever were attached thereto. This agreement was no part of the arrangement for distribution of the proceeds of the sale of the farm which appellee entered into with her husband, L. E. Ketchum, but, as we have shown, it was an independent arrangement entered into by Mr. Sears for the purpose of securing immediate possession and control of the deed. He offered his personal promise to pay appellee the sum of $900 before 6 o’clock that evening in order that he might secure that immediate possession and control of the deed, and appellee accepted his proposition.” Again they say: “He thereupon proposed to personally pay her $900 as we have shown, and she accepted his proposal and thereupon accepted the terms of the written agreement and delivered the deed. But one conclusion can be reached to this promise. It was additional to and separate from the written contracts referred to by appellant and necessarily could not be incorporated therein. ’ ’

Although several persons were present in Switzer’s office that day who testified for appellee, and they in some respects differ from the version of the conversation testified to by appellant, who was alone, yet this attempt to single out from a long conversation the few words in which appellant told appellee he would pay her $900 by six o’clock that evening, and to make them an absolute and personal promise by appellant, regardless of all else that was said between the parties, must fail. It is clear that upon this record neither Sears nor Solfisburg had any personal interest in this transaction. They were attorneys for Leander E. Ketchum and were acting solely as his representatives, and that fact was well known to appellee, and to Switzer, her attorney. It is clear that whatever promises appellant made to appellee and to her attorney he made as the attorney of Leander E. Ketchum and in his behalf, and that he was so understood by appellee and by her attorney. It is clear that appellant was not understood to mean that he would payappellee $900 of his own money. It is clear that the $900 then promised to be paid was to be paid out of the moneys of Leander E. Ketchum and was to be at least a part if not the whole of the remainder of the one-third of the net proceeds of the farm which appellee was to receive from her husband. The conduct of the parties that day makes it clear to us that it was understood and intended then by appellee and her attorney that when appellant, acting for Leander E. Ketchum, should pay appellee the $900 he was to receive for his client the second paper prepared that day. The check offered shortly thereafter was not money, but no objection was made to it on that account, and no claim was made that it was not good.

Where, as here, the principal is disclosed, the agent is not liable upon a promise which he makes for his principal. 1 Am. & Eng. Ency of Law, 1st Ed. 401; Seery v. Socks, 29 Ill. 313. Appellee did not understand that appellant was promising to pay her $900 of his own money. She understood that he was promising, in behalf of her husband, to pay her $900 of her husband’s money. The evidence will not warrant the position of her counsel here that she is to be paid by her husband one-third of the net proceeds of the farm, and is also to be paid $900 by appellant. We are of opinion that Solfisburg was justified in withholding the check when Switzer refused to deliver the second paper prepared on February 25, and which appellee had at some time signed. We are of opinion that appellee’s sole cause of action is against her husband. It may be that she has a right to have Sears & Solfisburg retain the moneys in their hands till in some proceeding to which her husband is a party it is determined what deductions are to be made from the gross purchase price before making the division, but there is no proof that they are not retaining the funds for that purpose, and she could have no such relief in this suit.

We are of opinion that appellee has no right of action against appellant in this cause. The judgment is therefore reversed.

Reversed with finding of facts, i

Finding of facts, to he incorporated in the judgment.

We find that appellee has no right of action at law against appellant for the moneys here sued for.


source: Caselaw Access Project

author: Mr. Pbesiding Justice Dibell

license: Public Domain

text:
    Frank Garretson, Appellee, v. Village of Fox Lake, Appellant.
    Gen. No. 5279.
    1. Trial—when allowing reopening of case proper. Held, that it was not an abuse of discretion for the trial court to permit the plaintiff to reopen his case and introduce additional evidence.
    2. Fres and salaries—when resolution floes not change rate of compensation. A village, though not bound so to do, may create an office and fix the compensation therefor by ordinance, and when it does so it cannot legally change the rate of compensation fixed, by mere resolution, as a resolution cannot repeal an ordinance.
    3. Appeals and errors—when sufficiency of evidence not saved for review. If the bill of exceptions does not purport to contain all the evidence the Appellate Court must presume that the evidence actually heard supported the finding. .A certification by an official stenographer that the transcript contains all the evidence, does not supply the omission of a certification by the judge.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Ben H. Milleb, for appellant.
    E. V. Oevis, for appellee.
   Mr. Pbesiding Justice Dibell

delivered the opinion of the court.

Appellee recovered a verdict and a judgment against appellant before a justice of the peace, and, on appeal to the Circuit Court, recovered another verdict and a judgment against appellant, each for $181.67, for a balance claimed to be due him for his salary as village marshal during the time he held that position. The village appeals to this court.

At the close of appellee’s evidence appellant moved to direct a verdict for appellant because the appointment of appellee as village marshal had not been duly proven, and the court granted that motion. Thereupon the court permitted appellee to reopen his case and offer further proof on that subject, and then denied a subsequent motion to instruct for appellant. This ruling is urged as error. It was proper to permit. this additional proof, and such action has been approved in a case where the proofs were all closed, in I. D. W. Ry. Co. v. Hendrian, 190 Ill. 501. It may be that the evidence even then was not competent to show appellee’s appointment, but afterwards appellant introduced the record of the proceedings of the village trustees, showing the appointment of appellee as village marshal and his confirmation by the unanimous vote of the village trustees, so that appellant fully established that part of appellee’s case.

In February, 1907, the village trustees adopted an ordinance providing for the police department. It named the village marshal as one of those officers and prescribed his duties and fixed his salary at $720 per annum. On May 7, 1907, the village trustees passed a resolution, changing the salary of the village marshal to $200. On May 11,1907, appellee was nominated and confirmed. Shortly thereafter he read the ordinance for the purpose of ascertaining his duties, and the salary still read therein $720 per annum. At some later date some one erased the words “seven hundred twenty” and inserted the words “two hundred.” The city and village act authorizes the trustees of a village to appoint various officers, including a village marshal, and to prescribe their duties and fees, and to require such officers to execute bonds as may. be prescribed by ordinance. It is perhaps not certain that it is meant that the duties and fees shall be prescribed by ordinance, but it is clear that the village had power to prescribe the duties and the salary by ordinance. When it had done so, that ordinance could not be changed or amended or repealed by resolution. This is clearly laid down in People v. Mount, 186 Ill. 560, and the reasons are there stated. The salary fixed by this ordinance had therefore not been changed, and the resolution was invalid. It is, however, contended that appellee was told that the salary would be but $200 per year and that he said he would serve for that sum. This is denied by appellee, and he contends that he was only told that the village was short of money and wished to only pay him at present at that rate, and would pay him the rest of his salary later when the village had more funds. The court instructed the jury, at the request of appellant, that if appellee agreed to accept the office at $200 per year, he was bound by such agreement, notwithstanding the ordinance. The jury therefore must be presumed to have obeyed the instruction, and to have found that such an agreement was not proved. We are asked to review that finding of fact. The trial judge does not certify that the bill of exceptions contains all the evidence. An official stenographer has certified to that effect, but he has no authority to make such a certificate or to bind the trial judge. As there was a conflict in the evidence, it is very improbable that if the bill of exceptions stated that it contained all the evidence this court would feel at liberty to disturb the verdict on that ground, after it had been approved by the trial judge. But, if necessary, we must presume in support of the verdict that there was other evidence upon the subject.

While appellee held this office he was also employed by the village to perform other duties, and was paid a small extra stipend therefor, but we do not understand it to be contended that the judgment is wrong if appellee is entitled to a salary at the rate of $720 per year for his services as village marshal. He received the lesser sums when paid to him, but gave no receipt in full. The record does not show any reversible error, and the judgment is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Dibell

text:
    Septimus Storey, Appellant, v. Clara Genn, Appellee.
    Gen. No. 5283.
    Appeals and ebrobs—when nothing presented for review. In a case tried before the court without a jury there is nothing presented for review if no rulings were made by the court and excepted to by appellant, if no propositions were presented by the appellant which were refused by the court, and if the bill of exceptions does not show an exception to the finding and judgment of the court.
    Judgment by confession. Appeal from the Circuit Court of DeKalb county; the Hon. Duane J. Cabnes, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    J. B. Stephens, for appellant.
    W. W. Mercer and Jones & Rogers, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On February 14, 1908, appellant recovered a judgment by confession against appellee for $1,802.60 upon two promissory notes, on each of which appellee was the third signer, which notes were dated November 1, 1902, and were past due. The judgment was opened, defendant filed pleas, appellant amended Ms declaration and there were stipulations as to the pleadings, the last of which was that all proper pleadings were considered in; the cause was tried without a jury, and there was a judgment for appellee, from which the plaintiff below appeals.

From the briefs it appears that appellee relied on two defenses: (1) that she signed these notes several years after they had been signed and delivered by the principals and that she was a surety only, and that there was no consideration for her signing the notes moving either to herself or to any one else; against which contention appellant sought to show that the consideration was the forbearance to enforce the notes for a reasonable time; and (2) that after she signed these notes as surety appellant accepted from the principals a new note for the entire amount of both original notes, payable January 10, 1910, and secured by a chattel mortgage, and that this extension was without her consent and released her from her lia- ' bility; to which appellant sought to reply a provision in the notes signed by appellee that no extension of payment should release any signer, whether given with . or without his consent.

The bill of exceptions does not show any ruling by the court upon any question whatever. The only objections to testimony were in certain depositions, and those objections were not relied upon. The only proposition of law was presented by appellant and was given. The bill of exceptions does not state either the finding or the judgment of the court, and does not contain any exception to either. There is therefore no exception in the bill of exceptions to either the finding or the judgment of the court. In the absence of such an exception, the sufficiency of the evidence to support the judgment cannot be inquired into upon an appeal in a case tried by the court without a jury. Climax Tag Co. v. American Tag Co., 234 Ill. 179. The record written by the clerk says that “plaintiff having entered his exceptions herein, prays an appeal.” This does not aid appellant. It has been decided in many cases in this state that the clerk of the court has no authority to certify what exceptions were taken at the trial, but that the judge must make that certificate in a bill of exceptions in order to preserve the ruling for review. People v. Ecomomac, 243 Ill. 107. Besides, this entry by the clerk does not indicate what exceptions were taken, nor to what ruling they were taken. This record presents no question for our consideration.

The judgment is therefore affirmed.

Affirmed.


text:
    William T. Seely et al., Appellees, v. George R. Watson, Appellant.
    Gen. No. 5291.
    Appeals and errors—when finding of court not subject to review. In the absence of a submission of special findings of fact and propositions of law there is nothing left for the Appellate Court to determine other than the sufficiency of the evidence as a whole to sustain the finding and judgment appealed from.
    Assumpsit. Appeal from the Circuit' Court of Stark county; the Hon. L. D. Puterbaugh, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Rehearing denied April 13, 1910.
    Kerns & Fling, for appellant.
    J. H. Renniok, for appellees.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellees sued appellant to recover royalties for the mining of coal under certain real estate from May 1, 1908, to October 1, 1908, under a written lease. The number of bushels of lump coal, mine run coal and screenings, which had been taken out during that time, was admitted and the cause was submitted to the court without a jury upon a stipulation containing that data, and providing that the only question submitted to the court was the meaning of the word “coal” as used in the lease; that if the court held that it included “slack” plaintiffs should have judgment for $98.38 and if the court held that “coal” did not include “slack” plaintiffs should have judgment for $68.87. The amount involved is small, but the lease runs to June 1, 1926, and the decision will bind the parties in their future dealings. The court entered a finding and a judgment for plaintiffs for $98.38 from which defendant below prosecutes this appeal.

The lease was made June 1, 1901, and was from Amelia T. Seely and her husband to George B. Watson, appellant here. Mrs. Seely leased to Watson “all the coal lying and being under” (describing a farm); it gave the privilege of entry, sinking a shaft, hoisting coal, etc. It provided that the second party was to pay the first party ‘ ‘ as rent for said land the sum of one-half cent per bushel for all coal mined under the above described land, payable on the first business day of each month; said party of the second" part shall keep a true account of all coal so mined on said land at all times open to the inspection of the party of the first part or her agent,” etc. It is clear from the proof that the screenings are coal, and we are of opinion that they are included, necessarily, in the terms “all coal mined.” The screenings are not only a part of the coal, but they come to the surface of the ground in an indistinguishable mass with the rest of the coal, and when separated from the coal they still have a value. The proof makes it evident that when a coal merchant, who is in the business of retailing and selling coal to private consumers, orders a carload of coal, it is expected in the trade that he will receive screened coal, unless he otherwise orders. That is so because it is screened coal that is usually sold to private consumers. We are of opinion, however, that that casts no light upon the question what is meant by “all coal mined” in a lease of this kind. If we are right in this view of the lease, it sustains the judgment.

The mine is situated in Wyoming, in Stark county, and Mrs. Seely had once lived there, but she had removed to Rockford, and she died there some seven years after this lease was made, and left a will which was duly admitted to probate, under which appellees became the owners of the royalty reserved in this lease. Appellant contends that either the words in the lease clearly mean that he shall pay the rent or royalty only on screened coal, or else that the meaning of the words in the lease is ambiguous and that in such case the construction which the parties themselves have placed on the lease must control; and he alleges that he settled with Mrs. Seely during the seven years when she received the royalty solely upon the basis of screened coal. The agent who collected the royalty for Mrs. Seely during the first two years of the lease was out of the state and was not a witness. Appellant testified that he paid to that agent royalty on screened coal only. It is evident from his testimony that he does not know that fact. His books were periodically placed in the hands of Mrs. Seely’s agent, and the • agent made his own computations and told appellant how much was due from him to Mrs. Seely, and appellant paid the sum named without any inquiry or examination to ascertain upon what basis it was computed. E. S. Teeter was the |agent for Mrs. Seely during the last five years of her life and collected and remitted the royalty to her. He lived at Wyoming, and testified that he computed the royalty only upon screened coal. He did not know anything in the form of his remittances which would advise Mrs. Seely whether he was collecting on mine run coal or screened coal. He testified that she never gave him any instructions to collect on slack or screenings or not to collect on it. He also testified that she did give him instructions to collect on screened coal; and also, just before leaving the witness stand, that she told him not to collect royalty on slack.

Section 61 of the Practice Act of 1907 authorizes either party to submit written propositions of law to the court and to except to the adverse ruling of the court thereon, and also to submit questions of fact in writing to be determined specially by the court. No propositions of law or special findings were submitted to the court in this case. We are unable to know whether the court below held that the meaning of the lease was so plain that the construction of the parties was immaterial, or that it was ambiguous and the construction of the parties would be material, but that the court did not believe the contradictory evidence of the agent Teeter. For all that we can. know it may have been the conclusion of the trial judge that he was not warranted in accepting the evidence of Teeter because of his contradictions and because of his manifest friendship for and desire to serve appellant. There was testimony both ways as to how a coal miner would understand the language of this lease. We think it clear that many of the witnesses who interpreted “coal” to mean screened coal were looking at the question from the standpoint of a retail dealer in coal only, and we think the preponderance of the oral testimony is that in a question between the owner of the land and the coal mined under such a lease, the language of this lease would be understood to mean “mine run coal,” or all the product taken out of the mine which possessed the characteristics of coal.

The judgment is therefore affirmed

Affirmed.


text:
    David Stephens, Appellant, v. John A. Neilson, Appellee.
    Gen. No. 5294.
    1. Instructions—-what justifies giving. The giving of an instruction which otherwise might be improper is sometimes justified by comments of opposing counsel made in argument.
    2. Verdicts—when not disturbed. A verdict will not be set aside as against the weight of the evidence even though the court would have been better satisfied if the verdict had been the other way.
    Distress for rent. Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Brooks & Brooks, for appellant.
    Wooster & Edwards, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This case was before us in Stephens v. Neilson, 142 Ill. App. 263, where the facts are stated. Neilson had rented some land of Stephens and had given three promissory notes for the rent, each dated August 26, 1905, the first for $300 payable March 1, 1906, the second for $250, payable September 1, 1906, and the third for $350, payable December 1, 1906, each with interest at seven per cent per annum after date until paid. On June 25, 1906, after the maturity of the first note and before the maturity of the second, Stephens issued a distress warrant for $238.84, it being conceded that there had been a small payment on the first note. Neilson claimed that he had made another payment of $250 which more than paid the first note in full. Upon the trial he presented a receipt for $250 dated February 20 and purporting to be signed by Stephens. Stephens admitted the signature to be bis, but denied that he had received such a payment or given such a receipt. The paper upon which the receipt was written was narrow, and Stephens claimed that it had been cut from some other paper which had his signature to it, and the receipt written above his signature. Neil-son testified that he paid that money to Stephens at that time and drew this receipt, and that Stephens thereafter signed it. Stephens produced experts who were of the opinion that the signature had been written before the receipt. The sole question is whether the $250 was paid by Neilson to Stephens. Neilson testified that he got the money from a certain other party, and that party testified for Stephens that he did not pay that amount of money to Neilson at the time named. Two other witnesses for Stephens, who seemed to be disinterested, testified to conversations with Neilson in April and June following which could not have been held if Neilson had already paid the first note in full. Either they are mistaken as to the exact language of these conversations, or Neilson did not understand what they were talking about, or there was a mutual misunderstanding between Neilson and the witness as to the subject of the conversation, or the first note had not been paid at that time. If this were a matter of first impression, our inclination would be to hold that the preponderance is against the payment having been made. But there was evidence tending to impeach the reputation of Stephens for truth and veracity, and two juries have found. the issues for Neilson, and two trial judges have approved those verdicts. Both juries and both judges saw the witnesses and especially saw Stephens and Neilson on the witness stand. They may have seen that in the demeanor of those witnesses and in their manner of testifying which justified confidence in the truth of the one rather than the other. We do not feel warranted in disturbing a second verdict for Neilson which has the approval of the trial judge.

Stephens testified that he lived in Princeton, but various witnesses testified that they had known him to be staying in the towns of Amboy, May and Bast Grove, and some of the witnesses did not know that he lived at any other place. We infer that he owned land in each of those adjoining towns. Witnesses testified that his reputation for truth and veracity in those towns was bad. The court, at the request of Neilson, gave an instruction to the effect that if the jury believed from the evidence that Stephens lived in the neighborhood of those towns long enough to make a reputation for truth and veracity there, and that such reputation was known by those who were his neighbors while he lived in that neighborhood, then it was competent to show by such neighbors such reputation for truth and veracity by way of impeachment, though he did not now reside in such neighborhood but resided elsewhere. It is contended that it was error to give this instruction. It is supported by Blackburn v. Mann, 85 Ill. 222. We think it might well have been omitted, and yet there may have been such comment by appellant’s counsel upon the fact that the impeaching testimony was not drawn from Princeton as made it important that this should be given. The court gave several instructions on the subject of impeachment at the request of appellant and the jury could not have been misled upon that subject.

While we would be better satisfied by a verdict and a judgment for Stephens, yet we see no sufficient grounds for disturbing the judgment under the circumstances stated.

The judgment is therefore affirmed.

Affirmed.


text:
    Eva Drane, Appellee, v. Sterling, Dixon & Eastern Electric Railway Company, Appellant.
    Gen. No. 5297.
    Contributory negligence—alighting from, moving traction car. While it is not negligence as a matter of law to alight from a moving traction car at a street crossing, held, under the evidence in this case, that it was contributory negligence, as a matter of law, for the plaintiff to alight from the car in question in this case in the manner in which she did.
    Action in case for personal injuries. Appeal from the Circuit Court of Whiteside county; the Hon. William H. Gest, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed.
    Opinion filed March 11, 1910.
    Henry S. Dixon, C. O. Johnson and George C. Dixon, for appellant.
    G. L. and C. E. Sheldon, for appellee. ■
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Mrs. Eva Drane was hurt in alighting from a street car in the city of Sterling on the evening of May 29, 1907. She brought this suit against the railway company to recover damages for said injuries. In her declaration she alleged that the car stopped at the intersection of Fourth street and Eighteenth avenue and that she then alighted from the car. Each count alleged that she was in the exercise of due care for her own safety and that the motorman had notice of her desire to alight. Two counts alleged that the car stopped and that as she was alighting the car was started suddenly and with a violent jerk. Two other counts alleged that the car was moving very slowly and as she was alighting the car was started and moved with a sudden and violent jerk. One of each set of these counts charged that the company was negligent in not having a conductor upon the car. Plaintiff had a verdict and a judgment and defendant appeals.

Plaintiff and two colored women living in the western part of the city went upon a street car to a cemetery in the eastern part of the city the day before Decoration Day in 1907 to decorate their graves and fix up their lots in the cemetery. When ready to return they got upon a westbound street car at Nineteenth avenue. The street car was operated by electricity applied by the motorman, whose station was in the vestibule in the front end of the car. There was no conductor. As plaintiff and her two friends were preparing to get upon the car at Nineteenth avenue the motorman called out to them in some words intended to hurry them to get upon the car. They got on and the car went west. They walked to the front end of the car and took seats on the south side. The motorman looked in and saw them sitting there. They each testify that he said something to them after they had taken their seats in the car which they did not understand. Plaintiff testified that she then decided to leave the car to avoid trouble. The motorman denied that he said anything to them in the car, and other passengers testified that they were talking and laughing with each other. They arose in the front part of the car and walked to the rear of the car. They each testified that the car stopped at the west side of Eighteenth avenue; that one colored woman got off; that as plaintiff was in the act of stepping to the ground the car started with a jerk and she was thrown, breaking a large bone in her left wrist and otherwise, injuring her; and that the other colored woman waited a little longer and then stepped off and was thrown down. They each testified that the motorman saw them rise and start to the rear of the car, and this he denies. Several things about this narrative are peculiar. The motorman was driving his car west at the usual speed and approaching Eighteenth avenue. These women testify that all the time his face was turned to the east and that he was looking down the car, instead of looking ahead where the car was going. This is very improbable. They testify that all the time that they were walking east along the center of the car to the rear, they saw him standing there on the front or west vestibule with his face turned east looking at them. The absurdity of this is manifest. They alighted on the north side of this westbound car. Plaintiff took hold of the rear handle with her right hand and took hold of her dress skirt with her left hand, and she testifies that she was stepping off with her left foot first. It may be that it would not be negligence to step off from a standing car in that manner, but there is a clear preponderance of the evidence that this car did not stop at all at Eighteenth avenue and that when plaintiff alighted it was going at the rate of four or five miles per hour, or at least as fast as a man could walk. While it is not negligence per se to step off of a street car at a street intersection when the car is in motion, yet it is obvious that a person getting off from a moving car on the north side when it is moving west would be required by ordinary prudence to take hold of the forward handle with the hand furthest forward, that is, the left hand, and to step off with the right foot first. If plaintiff got off this car while it was in motion, west bound, from the north side thereof, as the evidence requires us to believe, then her act in taking hold of the rear handle with her right hand and not taking hold of any handle with her left hand and stepping off with her left foot first would inevitably cause her to be twisted and thrown down, and such a method of alighting from a moving car was manifestly negligent. The distance from the place where the women got on at Nineteenth avenue to the west side of Eighteenth avenue was less than 370 feet, and at the rate the car was traveling they were on the car about thirty seconds or perhaps forty-five seconds, including the time taken in starting. In that time they had to walk the length of the car, take their seats, get up again and walk back and get off. They did not pay their fares. There was a strap in reach of plaintiff as she knew by which she could pull the bell and notify the motorman that she wished to alight. She did not give this or any other signal to the motorman. They lived many blocks west of that part of the city. The motorman would have no reason to suppose that they would seek to alight within thirty or forty-five seconds after getting on. No reason is assigned by plaintiff why she left the car when she did or even why she wished to leave it. It is not to be believed that she left simply because the motorman said something which she did not understand. Moreover the fact that the motorman did not call for their fares tends to prove that he did not know that they were seeking to leave the car. There were a number of passengers in the car and several people at the street corner on the west side of Fourth street and south side of Eighteenth avenue. One Johnson, standing at that corner, wished to go on this car and as it did not stop he started on the run diagonally in a northwesterly direction on Fourth street and caught the car and got on the rear about twenty-five feet west of Eighteenth avenue. A passenger on the rear platform testified that the women got off just as Johnson got on. The motorman knew Johnson and saw him coming and reduced the speed of the car and looked back to the southeast and watched him till he saw that Johnson got on and then turned on the power again and went on till the car was about 150 feet west of Eighteenth avenue, when a passenger told him what had happened and he stopped.

We are of opinion that a clear preponderance of the evidence is that the car did not stop; that the motorman did not know that plaintiff was seeking to leave the car; and that plaintiff alighted from the moving-car in a manner which was negligent in view of its speed at that time. Plaintiff was hurt, but it does not follow that the street railway company is responsible and ought to pay her damages. We are of opinion that the evidence ought not to be submitted to another jury.

The judgment is therefore reversed.

Reversed.

Finding of facts, to be incorporated in the judgment:

We find that appellee was injured because of her own negligence, and that appellant was not guilty of negligence.


text:
    Walter Gibb, Appellant, v. Phoebe A. Dominy et al., Appellees.
    Gen. No. 5303.
    1. Gambling—section 182 of Criminal Code construed. If a depositor in a bank loses money in bucket shop gambling and pays his losses by checks on such bank, even though such bank knows of the purpose for which such checks are drawn it may pay the same without incurring liability to such depositor under section 132 of the Criminal Code, as such' bank is not a “winner” within the meaning of such section.
    2. Gambling—within what time action must he brought by loser under section 132 of the Criminal Code. By virtue of this statute a loser must bring his action within six months from the loss and failing within such time to commence the same, he. is thereafter forever barred.
    3. Injunctions—what essential to sustain assessment of damages upon dissolution. A certificate of evidence showing the evidence upon which the assessment of damages upon dissolution was predicated or else a finding of facts is essential in order to sustain such an assessment.
    Bill in equity. Appeal from the Circuit "Court of Livingston county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed in part and reversed in part and remanded.
    Opinion filed March 11, 1910.
    B. S. McIldtjtf and B. B. Thompson, for appellant.
    C. F. H. Carrithers, for appellees.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Walter Gibb, the appellant, filed a bill in equity wherein he alleged that he was a saloonkeeper; that he carried a bank account with the banking house of L. B. Dominy & Company; that Thomas B. Voorhees, Emil Keller, Nathan B. Camp and Joseph C. Kessler were respectively keepers of bucket shops, wherein gambling transactions in grain and provisions, bonds and stocks, were carried on; that from about September —, 1903, to July 6, 1907, appellant conducted various gambling transactions in grain, etc., through said several gambling houses; that he sometimes won and then deposited his winnings in said bank, and at other times he suffered loss and from time to time drew checks against his account in said bank for the amount of said respective losses, payable to the particular operator to whom he had lost, and that the drawing of such checks from time to time continued up to and including July 6, 1907; that each of said checks was paid by the bank upon presentation; and that on July 12, 1907, appellant had overdrawn his account in said bank in the sum of $1,750 and he executed on that date his judgment note to the bank for that sum, due on or before six months after date with interest at seven per cent per annum. The bill set out the amount of each of the winnings deposited in the bank and the date of its deposit. It also gave the date and amount and payee of each check on said bank given in a gambling transaction. It alleged that some one or two of the members of said banking firm of L. B. Dominy & Company, which was a partnership composed of five persons, knew that appellant was engaged in gambling in grain,' etc., through those several bucket shops, and knew at the time each of those checks was paid that it was given to settle a loss in a gambling transaction; that it was illegal for said bank to pay said checks with knowledge that they were given to settle losses in gambling transactions; that if said checks had not been charged up to his account, his account would not have been overdrawn in the sum of $1,750 or any other sum on July 12, 1907.

The bill further alleged that frequently during the time appellant was engaged in said gambling transactions, members of said banking firm urged him to stop the practice of gambling in grain, and told him that he was sure to lose in the end, and that when he gave said note the member of said banking firm who procured the note from him (which was while he was taking the Keeley cure at Dwight), told him that the firm would pay no more checks drawn by him on said bank for margins or to pay losses on option deals. The bill implies that he drew no more such checks on said bank, but he did keep a deposit account thereafter in the bank, and from time to time the bank took therefrom various sums and endorsed the same as payments on said note. The bill charges that the note was illegal, and therefore it was illegal to fake those sums out of the bank account. The bill further charged that on May 23, 1908, said banking firm recovered a judgment by confession against him on said note for $1,163.75 and costs, and sued out an execution and levied it upon certain real estate and also upon certain personal property, and advertised it for sale for October 24, 1908. The bill further alleged that by its course of taking various sums out of his bank account and endorsing the same upon said note, his bank account became overdrawn in the sum of $68.79, and the bank brought suit against him before a justice of the peace and recovered a judgment for that sum and costs on June 25, 1908, and afterwards sued out an execution to a constable and the same was levied upon certain personal property, which the constable advertised for sale under said execution for October 24, 1908. It was charged that appellant did not owe this last sum, because those various sums had been withdrawn from his account to endorse the same upon this illegal note. This bill was filed on October 23, 1908, against said banking firm and each of said bucket shop keepers and the sheriff and the constable, and under it an injunction was obtained restraining the sales by the sheriff and the constable, and afterwards by order of court the personal property was restored to appellant. The bill sought an accounting with the banking firm and sought to have the checks given in gambling transactions (less the winnings so deposited), deducted from the debit side of appellant’s account with the bank, and sought a decree that he was not indebted to the bank and to have the judgments set aside. For some reason not disclosed, appellant dismissed the bill as to Voorhees. The defendants filed a special demurrer to said bill, which was sustained, and filed a motion to dissolve the injunction, which was granted, and the court found that there was no equity in the bill, assessed appellee’s damages at $123 for the wrongful suing out of the injunction, and dismissed the bill at the costs of appellant. This is an appeal by complainant below from that decree.

Section T32 of the Criminal Code authorizes any person who shall lose a sum of money or other valuable thing to any other person to sue and recover the money or other valuable thing so lost and paid or delivered by- action at law or proceeding in chancery from the winner thereof, but if the person losing shall not within six months sue and with effect prosecute for such money or other thing by him lost and paid or delivered, it shall be lawful for any person to sue for and recover treble the value thereof, one-half to the use of the county and one-half to the person suing. In other words, the loser may sue and recover from the winner and recover the money or value lost, and afterwards if the loser fails to sue, any other person may sue the winner and recover three times the money or value lost.

In our judgment, the bank was not the winner of what appellant lost. The winner was the keeper of the bucket shop with whom the transaction was conducted. When there was a loss and appellant drew his check therefor to the bucket shop keeper and the bucket shop keeper cashed it at the bank, then appellant has lost and the bucket shop keeper had won that amount of money, and a cause of action arose in favor of appellant against the bucket shop keeper to recover that sum. We think it would be a dangerous doctrine to hold that a banker is bound to consider the purpose for which a check is drawn by one of his depositors against his account in the bank, and to refuse to pay it if the banker should be of opinion that the depositor is thereby paying a gambling debt. The general rule in Illinois is that a banker is bound to accept and pay any genuine check drawn against the deposit of the maker of the check if there are funds sufficient to meet it (Munn v. Burch, 25 Ill. 21; Brown v. Schintz, 202 Ill. 509, 517), and the rule here sought to be established would revolutionize the banking business.

But if appellant is fight in his position that the bank should not have paid his checks on those occasions when they were given to pay a loss on a deal in a bucket shop, still appellant’s bill cannot be maintained. The loss by appellant was entirely complete when the check was paid. As already stated, the statute above referred to requires the suit to be begun by the loser within six months after the loss, and thereafter gives a right of action to any other person to recover treble the loss. It was held in Holland v. Swain, 94 Ill. 154, that the legal effect of the statute is to limit the time in which the loser may bring his action to six months, and to bar the bringing of such action by the loser after the lapse of that time. This was again held in Kizer v. Walden, 198 Ill. 274, and the same rule was held in a suit relating to gambling in grain in Bartlett v. Slusher, 215 Ill. 348. The last check of the kind mentioned was drawn on July 6, 1907, and was paid shortly thereafter. This suit was begun against the bank to recover the amount of those checks one year, three months and seventeen days later. This was one of the grounds of special demurrer. The demurrer was properly sustained and the bill dismissed.

Appellees filed a suggestion of damages for solicitor’s fees, and damages in the sum of $123 therefor were adjudged by the court, and execution was awarded therefor. There was no finding of facts to justify the allowance of any damages for solicitor’s fees, nor was any certificate taken preserving the evidence. In the absence of a certificate of evidence authorizing the assessment or a finding of facts in the decree sufficient to support it, the assessment cannot stand. This has been held in many cases, of which Albright v. Smith, 68 Ill. 181, is an example. Burrows v. Merrifield, 148 Ill. App. 594; 243 Ill. 362. The allowance for solicitor’s fees must therefore be reversed.

The decree is affirmed, so far as it dismissed the bill for want of equity. It is reversed and remanded as to the assessment of damages. Each party will pay its own costs in this court.

Affirmed in part and reversed in part and remanded.


author: Me. Presiding Justice Dibell

text:
    Benjamin F. Hertz, Appellee, v. Chicago, Indiana & Southern Railroad Company, Appellant.
    Gen. No. 5203.
    1. Common carbiebs—duty to public in transporting dynamite, etc. A common carrier has the right to receive and transport such dangerous articles of commerce as dynamite and naphtha and while there may be no contract relation between the carrier and a person injured as a result of an explosion, yet the carrier owes to those near enough its train to be affected by its manner of transporting these dangerous articles of commerce, the duty of using such care to avoid injury to others as would be used by an ordinarily prudent man engaged in such transportation under like circumstances. The more dangerous the articles transported the greater would be the vigilance of an ordinarily prudent man in exercising ordinary care.
    2. Common carriers—when instruction as to obligations erroneous. An instruction which makes a common carrier an insurer is erroneous if the sole obligation of the carrier in the case in question is only to exercise ordinary care.
    3. Pleading—when defective declaration will not support recovery. If a declaration defectively states a good cause of action it will not support a recovery if the defects are pointed out on the trial in apt time and if evidence offered not competent under the state of the declaration was in apt time properly objected to by the defendant.
    4. Evidence—what part of res gestae. An injury having resulted from an explosion, the consequences of such explosion to others than the plaintiff is competent, as part of the res gestae, as tending to show, the destructive force, of such explosion.
    Action in case. Appeal from the Circuit Court of Kankakee county; the Hon. Albert O. Marshall, Judge, presiding. Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed May 18, 1910.
    W. Rr. Hunter, for appellant; Glennon, Cart, Walker & Howe, of counsel.
    Cooper & Hobbie and T. W. Shields, for appellee.
   Me. Presiding Justice Dibell

delivered the opinion of the court.

The Chicago, Indiana & Southern Railroad runs from South Bend, Indiana, to a point west of Streator, Illinois, passing through Kankakee city and county and through the northern part of the village of Reddick on the west side of said county. The Wabash Railroad runs in a northerly and southerly direction through the eastern part of the village of Reddick and crosses the Chicago, Indiana & Southern Railroad in that village. At the crossing is an interlocking device operated by a man in a tower. A freight train of the Chicago, Indiana & Southern Railroad, bound west, was wrecked just west of that crossing on June 4, 1907, and a carload of powder or dynamite in that train exploded, creating great havoc in the village. The bodies of people who were killed were found scattered over an adjoining farm in fragments. Fragments of cars were thrown long distances. A piece of iron weighing 175 pounds was found 80 rods away, and a piece of car wheel weighing 35 pounds was found three feet deep in the ground a mile and a half from the scene of the explosion. The concussion was felt many miles away. Much of the window glass in the village of Reddick was broken. Benjamin F. Hertz was a store keeper in a building facing east on a north and south street, about half a mile south of this crossing. He had chinaware, furniture, musical instruments and other goods in his store and plate glass windows in front. The plate glass windows were nearly all destroyed, the crockery, which occupied one side of the store, was mostly thrown to the floor, broken and ruined, and much damage was inflicted upon the furniture and musical instruments and upon the building itself. He brought this suit against the Chicago, Indiana & Southern Railroad Company to recover damages for said injuries, and had a verdict and a judgment for $415, from which the railroad company appeals. The verdict was a moderate one for the injuries inflicted upon appellee by the explosion.

Each count of the declaration described the location and operation of the railroad, the .existence of the village and the stores and residences and other buildings therein, the dangerous character of the explosives contained in said car and that they were capable, if exploded, of casting heavy articles long distances and breaking window glass and doing other like damage, and were capable of being easily ignited or exploded by fire, heat or concussion; and it described in detail appellee’s store and stock of merchandise and the injury thereto by the explosion. The first count charged that appellant unlawfully and knowingly caused a carload of violent and dangerous explosives to be placed upon said railroad track near said village and within, to wit, 200 feet of where a fire was then and there burning, and that by reason of the placing of said explosives at said point on appellant’s right of way and railroad track the same became and was a nuisance, and that said car of explosives, while so in the possession and control of appellant, ignited and exploded with great force, and injured and destroyed appellee’s property. The second count charged that appellant negligently caused to be placed on its railroad track and right of way at a point half a mile distant from appellee’s store a freight carload of dangerous explosives, the exact name of which explosives was to plaintiff unknown, and so negligently and wrongfully placed said car of explosives at such a point on its tracks and right of way that it was within a distance of, to wit, 200 feet of a fire, to wit: a burning car and a burning oil tank, and that by reason of said negligent placing of said car of explosives in such close proximity to said fire, the explosives became ignited and exploded with great force and violence, and the jar and concussion resulting from said explosion injured and destroyed plaintiff’s property. The third count charged that appellant negligently and wrongfully caused to be placed on its railroad tracks and right of way at a point near appellee’s store, to wit, one half mile therefrom, a freight carload of dangerous and violent explosives which appellant permitted to be and remain upon its track and right of way, carelessly and negligently packed and carelessly and insufficiently protected and watched and carelessly and negligently in close proximity to large quantities of detonators and explosives, the exact name and character of which were to plaintiff unknown, but of great explosive power, and that by reason of said explosives being so carelessly packed, protected and watched, and placed in close proximity to said other explosives, the said dangerous and violent explosives became ignited and exploded with great violence, and the jar and concussion resulting from said explosion injured and destroyed plaintiff’s property.

The west bound train in question consisted of two engines, fifty-two cars and a caboose. The loads, beginning at the engines and going back, were first, two cars of automobiles, then a coal car loaded with pipe, then five Union Tank Line cars loaded with naphtha, then a car of automobiles, a car of pipe, a car of soda ash, a car of paint, a car of cider, and then the carload of powder in question; there being five ears between the naphtha cars and the carload of powder, and thirty-eight cars behind the car of powder. There was no powder or oil or naphtha in the train back of the powder car. Counsel for each side say that this was Atlas powder; and Atlas powder was proved to be another name for dynamite; but it was billed as powder, and we find nothing in the evidence to show that it was Atlas powder or dynamite. We accept the admission of appellant’s counsel that it was Atlas powder as true, but appellee seems to be in error in saying that the evidence shows that fact.

The substance of the evidence tending to show that this explosion was due to the negligence of appellant and its servants, beyond the general fact that the train and the right of way and track and this car and the oil cars were in the possession and control of appellant, and that appellant knew the contents of the cars, was as follows. George Van Voorst testified that, at Union Hill, some four or five miles east of Beddick, he stood on the south side of this train as it went west and looked the train over and saw a peculiar movement of the wheels, “that the wheels turned a little as it went around ’ ’ and he testified that a bent axle would cause a wabbling of the wheels. George Studley testified that he saw this train when it was about a mile east of the Wabash crossing, he then being about 25 rods south of the railroad; that he saw smoke on a oil tank about the last of the tank cars. William Grob, who was upon a road grader working on a north and south highway three quarters of a mile east of the Wabash crossing and fifty rods north of the railroad, testified that he saw fire coming from the boxing of the journal of one of the tank cars on the .opposite side of the train from him, as the train crossed the north and south highway. Joe A. Johnson, towerman at the Wabash crossing, had gone south on the Wabash track 500 feet to put up a signal light. He said that he saw this train about a mile from the crossing; that he saw fire flickering out from under one of the oil tanks all the way from a point three quarters of a mile distant till it reached the crossing; and that about 1450 or 1460 feet east of the crossing the car that had the fire left the track. Melvin Cooley testified that he was some distance south of appellant’s road at an elevator, and saw the train when it was about one quarter of a mile east of the Wabash crossing, and noticed smoke, and a blaze at times, from an oil tank, but he could not tell whether it was the tank which was on fire. B. D. Shelly testified that he was 80 or 90 rods south and west of the crossing; that he saw this train when it was 80 rods east of the Wabash crossing, and saw fire at the front truck of an oil tank car, and saw a • flame reaching np to the platform of the car; that when this tank car reached the crossing, it went np in the air and fell over on its side and then a big smoke and fire went np and the fire went np some 20 feet in the air, and that the fire also burned in the ditch where apparently oil ran down, and that this was the same oil car which he saw on fire 80 rods east of the Wabash crossing. Charles Shadrow testified that he was section foreman on a section extending from more than three and one-half miles east of Reddick to a quarter of a mile west of Reddick; that this train passed him and his section hands when he was about three and three-fourths miles east of Reddick; that as he came back to Reddick after this train passed, he saw marks on the ties beginning 1200 feet east of the Wabash crossing and extending continuously to the crossing, which marks were about eighteen inches inside of the north rail; that these marks were not there when he went over the tracks in the morning and that the marks looked as if something had been bumping up and down on the ties. Two of these were witnesses for appellant. The proof made it plain that this derailed car was the one which had a fire at one of the front journals on the south side of the car, and that the train remained connected till that derailed truck struck the Wabash crossing, when it broke loose from the train in front and went off to the south and went into the ditch a few car lengths west of that crossing; that several other cars behind it piled up in different directions and the carload of powder landed directly north of, and about 60 feet from, this burning oil tank, with its front end in the ditch; and that the fierce fire from the burning oil tank communicated with the car of powder and set it on fire, and that the explosion resulted therefrom.

Appellant proved that this train was carefully inspected in'Indiana and again at Kankakee, and that it was in good condition after each of such inspections. On the front engine was an engineer, a fireman and the head brakeman. On the second engine was an engineer, a fireman and an extra brakeman. At the caboose was the rear brakeman, and in the cupola upon the caboose sat the conductor. These trainmen each testified that he looked over this train between Union Hill and Beddick, some on one side only and others' on both sides. There was a curve each way shortly west of Union Hill, and several of the trainmen testified that this gave them a special opportunity to see the inside of the train while on the curve. They each testified that they saw no smoke or fire, or indication of any hot box, and no indication of the derailment till they reached the Wabash crossing. Several people who were away from the train on the south side thereof, testified that they saw the train and saw no smoke or fire. The evidence therefore was in irreconcilable conflict. All of the witnesses who testified on this subject for appellee were disinterested, so far as this record shows. The trainmen were interested in relieving themselves from any blame. The other witnesses for appellant appear to have been disinterested. It is impossible that we should know on which side the truth lies. The jury saw the witnesses and (unless the verdict was caused by the sixth instruction, hereinafter mentioned) they seem to have believed the witnesses for appellee. The trial judge saw the witnesses and approved that finding. In considering the facts we must therefore assume that the proof established that there was a peculiar motion to a wheel on the south side of the train at Union Hill; that, at a distance of a mile before the Wabash crossing was reached, there was a hot box on the front end of an oil tank on the south side and that both smoke and a blaze of flame were coming from it, and that eighty rods before it reached the crossing an obseryer could not tell whether it was the journal or the oil tank itself that was burning; that the front end of that tank became derailed somewhere from 1200 to 1460 feet east of the crossing, or about a quarter of a mile from the crossing; and that when that truck struck the Wabash crossing it broke the train in two, set the oil tank on fire and made a violent fire, and that in the wreck the powder car was derailed and thrown near the burning car and from it was ignited and exploded. The fact that the car in question was loaded with powder was known to the conductor, who had in his possession a waybill for that car showing that fact. The car had been shipped from the east and was consigned to Mexico. The wreck and the explosion were due, first, to a hot box on an oil tank car, showing smoke and flame for a distance of a mile from the crossing, and to the derailing of the front truck of that car, and to the failure of the men in charge of the train to discover these facts and stop or substantially reduce the speed of the train before the derailed truck reached the Wabash crossing, where the train going at the speed it then had must necessarily be wrecked, and to the fact that the carload of powder had been placed so near to the cars of naphtha that in the wreck it came up by the side of them. The train men testified that it was their duty to carefully look over each side of the train from time to time while they were running. If they had done so they mus't have discovered this smoke and flame from the journal of one of the oil cars. They must have known that such a flame, Avhile perhaps practically harmless on other cars, would be very dangerous on a car of naphtha, and especially dangerous with a carload of powder or dynamite a short distance back. If they had seen this smoke and flame a mile away it is clear that they could have stopped or greatly reduced the speed of the train before the crossing was reached. The jury may have concluded that the derailment one quarter of a mile east of the Wabash crossing caused the tank car to swing to the south sufficiently so that it would have been observed by men carefully watching that side of the train, and that the train could have been even then so materially checked in speed that the cars would not have piled up as they did and the car of powder would not have been fired. If this car of powder had been placed near the rear of the train and as far away as possible from those cars of naphthá, which is shown to be a highly inflammable and explosive fluid, or if the powder and the naphtha had not been placed in the same train, this explosion would not have occurred. The jury may well have concluded from the evidence that the circumstances which fired the car of oil and which placed the car of powder, so close to it as to explode it were due to the negligence of the men in charge of the train, and from their failure to properly discharge their important duties. This explosion happened some distance from the business part of a small village, but it might have occurred in the center of a crowded city, and in such a case the consequences would have been appalling. While we concede the right of a common carrier to receive and transport such dangerous articles of commerce as dynamite and naphtha, and while there was no contract relation between appellant and appellee, yet appellant owed to those near enough its train to be affected by its manner of transporting these dangerous articles of commerce the duty of using, such care to avoid injury to others as would be used by an ordinarily careful and prudent man engaged in such transportation under like circumstances. The more dangerous the articles transported, the greater would be the vigilance of an ordinarily prudent man in exercising ordinary care. If appellant failed to exercise that degree of care which an ordinarily prudent man in charge of carloads of dynamite and naphtha would have exercised in their transportation over a railroad and through villages and towns, then it would be responsible for the results of such lack of due care. It will be remembered that this train and the railroad track were entirely in the control of appellant. It conld have transported these articles over its line in such a manner that no such explosion as this could have occurred.

Appellant, however, contends that it is not charged in the declaration with negligence in the running of the train, or with negligently failing to discover the hot box or the fire or the derailed ear, or with negligence in placing the car of powder in a position so near the cars of naphtha, or with negligence in causing or permitting the cars of naphtha to be on fire. These contentions are well founded. The declaration treats the fire as properly on the right of way, or at least it does not charge that the fire was there by defendant’s negligence. It charges defendant with maintaining a nuisance in having a carload of dynamite upon its road at all, and that defendant was negligent in placing the carload of dynamite so near a fire on the right of way and so near other explosives, and that the carload of dynamite was negligently packed, protected and watched. If these defects in the declaration were first suggested after verdict it may be the declaration would be held sufficient after verdict. But when the proof of the condition of the train and of the negligent operation and management of the train, and of the existence of fire or a hot box on the train before it reached Reddick and of the derailment of the car far east of the crossing, was being introduced by plaintiff, defendant repeatedly objected that there was no charge in the declaration under which such proof was admissible. These objections were overruled and defendant excepted. Defendant several times moved to exclude such evidence on the ground that it was not admissible under the declaration. These motions were denied and defendant excepted. In our opinion these objections were well taken. They were interposed in apt time. Plaintiff did not seek to meet the objections by asking leave to amend the declaration, but chose to abide by the case stated therein. The objections should have been sustained. By the refusal to sustain these objections plaintiff was permitted to make an entirely different case against defendant from that with which it was charged in the declaration. This was reversible error committed before verdict, and therefore the rule cannot be applied that a declaration which defectively states a cause of action may be good after verdict under certain conditions.

Complaint is made of some rulings in admitting proof of the consequences of the explosion to others than appellee. It was competent to show the very great and destructive force of the explosion. Some of that proof may have been unnecessary, but it related to the character of the explosion and was part of the res gestae and we fail to see how the court could have kept it out. It did not injure appellant, for the jury awarded appellee somewhat less than the proof showed the amount of his actual damages to be.

Complaint is made of the action of the court in giving certain instructions for appellee. Some of these ought not to have been given. Two of them practically told the jury that appellant was not bound to transport this car of powder and these cars of naphtha. We are satisfied that it at least had a right to transport them. The statute of 1887, concerning the manufacture, transportation and sale of explosives, contained in the Criminal Code (Hurd’s R. S. 1905, Chap. 38, par. 54h to 54n), recognizes the right to transport explosives in this state within certain restrictions. This was an interstate shipment and is not wholly governed by that statute, but in view of that statute we cannot say that the shipment was unlawful in this State. If appellant might lawfully receive this shipment, then the jury should not have been told that it had the right to refuse it. We are also of opinion that under the proof, the giving of the sixth instruction, requested by appellee, requires a reversal. That instruction was as follows:

“If the jury believe from the evidence that the defendant caused a large quantity of powder or other explosives to be placed so near the premises of the plaintiff as to be liable to damage the same, if said powder or explosive should there explode, and that said large quantity of explosive powder did explode at said place while within defendant’s possession, and that thereby plaintiff’s building and contents on plaintiff’s said premises were damaged, then the jury should find the defendant guilty.”

That instruction made appellant an insurer against such an injury, even if its lack of negligence was clearly established and even if the explosion was a pure accident. Appellant offered much evidence tending to show that it was free from negligence. This instruction virtually withdrew that evidence from the consideration of the jury. It directed a verdict, and therefore could not be cured by other instructions given for appellant inconsistent therewith.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    In the Matter of the Estate of Ollie M. Hallock, deceased. William H. Allen, Administrator, Appellant, v. P. Hempstead, Appellee.
    Gen. No. 5268.
    1. Administbation or estates—when widow not tarred of right to award.. It is not until the lapse of seven years after the death of her husband that a widow becomes barred by laches of the right to an award.
    2. Administration of estates—when widow’s award allowed to her estate. Meld, under the evidence in this case, that the estate of the widow was entitled to the credit of her award and that her estate should not be made to suffer for the benefit of the creditors of her husband’s estate who themselves had been guilty of laches in failing, as such widow had failed, to obtain administration upon the estate of such husband.
    3. Administration of estates—when appraisement of widow’s award irregular. An administrator has a right to be a party to the making and return of the appraisement bill and widow’s award. If the appraisement is made without notice to or knowledge of the administrator, the same is irregular and may be set aside, but it will not be so set aside unless harm has 'resulted.
    4. Administration of estates—power of court of probate over its record. Entries of record made in a court of probate either through fraud or by mistake, may be set aside by such court at a subsequent term.
    Motion to set aside appraisement, etc. Appeal from the Circuit ' Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed.
    Opinion filed May 18, 1910.
    Charles A. Miller, for appellant.
    Harry Gr. Hempstead, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On August 9, 1901 Ollie M. Halloek died intestate leaving surviving him Arabella Halloek, his widow, and two minor sons. He left a few hundred dollars worth of personal goods and chattels, and $169.20 in the hands of a building and loan association. The widow took possession of all the goods and chattels except the cash in the hands of the building association. If letters of administration had been taken out, she would have taken all of this property on her widow’s award, under the lowest estimate that could have been reasonably made by appraisers. No administration upon her husband’s estate was had during her lifetime, obviously because all the property would belong to her on her widow’s award. She died on February 18, 1905, leaving as her only heirs the two sons aforesaid, who were still minors. She left considerable property, both in real and personal estate, and administration was soon after taken out upon her estate by William H. Allen. About a year later a creditor of Ollie M. Hallock procured letters of administration upon his estate to be issued to P. Hempstead. Hempstead reported to the Probate Court that there was no widow or other person entitled to an award, and no personal property subject to appraisement, and he asked that no appraisers be appointed. After-wards the administrator of Mrs. Hallock’s estate appeared in the estate of Mr. Hallock before the Probate Court, and obtained the appointment of appraisers, who returned an appraisement bill in which they fixed the amount of the widow’s award at $1158; and said appraisement bill and award was approved by the court. The record was so written up as to show that this appointment of appraisers was obtained by, and their report returned by, the administrator of Mr. Hallock’s estate; but, in fact, his administrator knew nothing of the appointment of appraisers or of the making of the widow’s award until some months after-wards. When he learned of this appraisement and widow’s award, the administrator of Ollie M. Hal-lock’s estate made a motion in the Probate Court that said appraisement bill and widow’s award be set aside, and that motion was granted on a hearing. The administrator of the estate of Mrs. Hallock appealed from that order to the Circuit Court, where there was a hearing and a like order was entered, from which the administrator of Mrs. Hallock appeals to this court.

The statute gave the widow the right to an award and she took and converted to her own use, before an award was made, that which she woidd have been permitted to select under the award. She might have taken out letters of administration and had the award made, but did not do so, and was not required to do so. The creditor also could have taken out letters of administration after the lapse of sixty days from the death of Ollie M. Hallock; and the creditor therefore was guilty of substantially the same laches which is here attributed to Mrs. Hallock. A little over five years and three months elapsed from the death of Ollie M. Hallock till the making of the widow’s award. We think it fairly implied in Jespersen v. Mech, 213 Ill. 488, that the widow is not barred by laches from obtaining a widow’s award till the lapse of seven years from the death of her husband. By section 75 of the Administration Act the right to obtain an award passed to her administrator at her death. As she took the personal property which (or the proceeds thereof,) would have been hers by award, we do not think it should be held that her administrator is barred from obtaining the award to which she was entitled from her husband’s estate, when she would not be barred if living. As she left an estate of considerable value, the effect of depriving her of a widow’s award would be to compel her estate to pay to her husband’s estate, for the benefit of his general creditors, the value of all the property which she took at his death and which would have been hers under a widow’s award if one had been made in her lifetime. We do not think that her estate should be punished in that way for her laches when the creditor who caused letters of administration to be finally issued in her husband’s estate was guilty of practically the same laches. If he had acted promptly after the husband’s death and the lapse of sixty days, she would have received this property or its proceeds upon her widow’s award in her lifetime.

The Administration Act, however, intends that the administrator of the estate of the deceased husband shall be a party to the making of the appraisement. Section 52 authorizes the administrator to show to the appraisers the goods and chattels and personal estate of the deceased. Section 55 requires the appraisers to deliver the appraisement bill to the administrator, and requires him to return the same to the office .of the clerk of the County Court. Section 59 requires the administrator, if he discovers after the appraisement that the personal property and assets do not exceed the amount of the widow’s allowance, to report the facts to the court, and the court shall then order the property and assets to he delivered by the administrator to the widow, and discharge the administrator. It is clear that the administrator has a right to be a party to the making and return of the appraisement bill and widow’s award. Here the fact is shown to be that the administrator of the estate of Ollie M. Hallock knew nothing of the making of the appraisement or of the allowance of the widow’s award or of its approval till a later term of court, several months afterwards. The action had been taken in fact on the application of the administrator of Mrs. Hallock’s estate, without notice to or knowledge of the administrator of the estate. in which the order was entered. True, the record recited that the administrator of the Ollie M. Hallock estate caused this action to be taken. The clerk testified that he was accustomed to write his records in that way without knowing whether the administrator did in fact appear and take the action or not. It is argued that the record must stand as written, and cannot be shown to be incorrect. A probate court acts upon general equitable principles in the settlement of estates, and whenever a court of equity would have jurisdiction on a bill in equity to set aside action taken at a previous term, or in another court, and to disregard the form in which a transaction had been placed, because of fraud or mistake, a probate court, on motion at a later term, can set aside its prior proceedings. These principles are announced and variously applied in Brandon v. Brown, 106 Ill. 519; Schlink v, Maxton, 153 Ill. 447; Strauss v. Phillips, 189 Ill. 9; Sherman v. Whiteside, 190. Ill. 576; Heppe v. Szczepanski, 209 Ill. 88; Whittemore v. Coleman, 239 Ill. 450. The action of the administrator of Mrs. Hallock’s estate in appearing before the Probate Court and procuring these orders to be entered in the estate of Ollie M. Hallock, deceased, without the knowledge of the administrator of that estate, and the making of these entries erroneously showing the administrator of Ollie M. Hallock’s estate present and taking the action, must be attributed either to fraud or mistake, and in either event the court had power at a later term to set the same aside. The Circuit Court had the same power on appeal. Miller v. Miller, 82 Ill. 463; Marshall v. Rose, 86 Ill. 374.

But the mere fact that there was an irregularity in the manner in which this appraisement and award were obtained is not sufficient of itself to require that it be set aside. The Probate Court had jurisdiction of the estate of Ollie M.. Hallock. The widow had been entitled to an award. She had taken the articles which she could have selected if the award had been made in her‘lifetime. The personal property appraised and the money in the bank, together, were less than the most moderate allowance which could have been made to her under section 74 of the Administration Act, as it then read. Her administrator became entitled to procure the award after her death. Freeman on Judgments, section 498, lays down the rule that a court of equity will not interfere to set aside a judgment until it appears that the result will be other or different from that already reached. This rule has been applied in Hier v. Kaufman, 134 Ill. 215; Farwell v. Huston, 151 Ill. 239; Blake v. State Bank, 178 Ill. 182; Young v. Deneen, 220 Ill. 350; and in other cases in this state. There was no proof that Ollie M. Hallock died possessed of other personal property not included in the appraisement. There was no proof that the amount fixed for the widow’s award was excessive or unreasonable, or was an unreasonable valuation of the specific articles allowed the widow by section 74 of the Administration Act, as then in force. If the order appealed from is sustained, the Probate Court must, upon the application of the administrator of the widow’s estate and after due notice to the administrator of the husband’s estate, proceed to again appoint appraisers to make another appraisement and award; and there is nothing to show that any more property will be appraised or that a higher value will be placed upon it, or that the widow’s award will be less than that already made. In other words, it is not shown that the irregularity complained of has harmed the estate. There is therefore no adequate reason for disturbing the appraisement and award already made. If the administrator should find other personal property of the deceased this does not deprive him of the power and duty to administer thereon.

The orders of the Circuit Court and of the Probate Court, setting aside the appraisement and widow’s award, are therefore reversed.

Reversed.


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    Harold I. Hettinger, Appellee, v. George W. Brokhausen, Appellant.
    Gen. No. 5300.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Verdicts—when remittitur required. If it appears that a large part of an excessive verdict represents exemplary damages which the evidence did not justify, a remittitur will be required as a condition to affirmance.
    Action in case. Appeal from the Circuit Court of Stephenson county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed May 18, 1910.
    W. N. Crohkrite and Bobert B. Mitchell, for appellant.

      J. A. Crain and Louis H. Bubbell, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This in an action of trespass brought by Harold I. Hettinger, a minor, by his next friend, against George W. Brokhausen for. the recovery of damages alleged to have beén caused by a collision between a bicycle ridden by said Hettinger and an automobile driven by said Brokhausen on the 19th day of August, 1908. The declaration consisted of five coupts, of which the first and second charged that the defendant assaulted plaintiff, who was at that time about ten years old, by driving his automobile upon plaintiff while he was riding a bicycle in the exercise of due care; the third count charged that the defendant wantonly and negligently drove his automobile without ringing a suitable bell or blowing a horn or using other signal, contrary to the statute, and that the automobile struck plaintiff and threw him upon the paved street, wounding his left shoulder, and the back of his head, and mutilating his ear, whereby plaintiff became permanently disfigured; the fourth count charged that defendant wantonly and negligently drove the automobile at a rate of speed in excess of fifteen miles per hour and that it struck plaintiff with great force and injured him; and the fifth count alleged that the defendant ran an automobile along a brick paved street, being one of the principal streets of the city of Freeport, while plaintiff was riding a bicycle thereon; and that defendant wantonly and negligently ran said automobile at a speed greater than was reasonable with regard to traffic and the use of the streets and contrary to the form of the statute, whereby plaintiff was struck and injured. Defendant below pleaded the general issue, there was a trial and a verdict and a judgment for $2,000, from which defendant below appeals.

Stephenson street, on which the accident in question occurred, extends through the city of Freeport in Stephenson county in an east and west direction, is' paved with brick and is forty-two feet wide from curb to curb, with a street car track about four feet and eight inches wide in the center of the street. Shortly before seven o’clock on the evening of the accident appellee left his home and went to the home of J. F. Fair on Stephenson street where he borrowed a bicycle and began riding about the streets and sidewalks in that vicinity. At the time of the accident he was riding west in the street, and after riding in that direction for a short distance, an automobile, carrying four men and driven by appellant, overtook appellee, struck the bicycle and threw appellee to the pavement. Appellee received no internal injuries, but was bruised and injured on the head, arm, back and shoulder, and his left ear was cut and torn. The contention of appellant is that, as he approached appellee, appellee was riding on the south side of the street, while the automobile was on the north side of the street, and that at that moment, appellee turned over to the north side of the street, directly in the path of the approaching automobile and so close thereto that appellant was unable to stop his machine before colliding with appellee. Appellee contends that the evidence shows that he was riding on the north side *of the street in a westerly direction ahead of the automobile and that appellant approached at a great rate of speed from behind and struck appellee without any warning. The evidence on these points is conflicting to such an extent that we would not feel warranted in disturbing the verdict of the jury, whichever way they might have found as to these points.

We are however satisfied that the damages are excessive and that the jury may have been led to the giving of such excessive damages by certain instructions given at the request of appellee. There was great conflict in the evidence as to the rate of speed at which the automobile was running at the time of the accident, appellant placing the speed at eleven or twelve miles per hour and being corroborated in that statement by several others, while the witnesses for appellee placed the speed at from fifteen to twenty-, five miles per hour. We are satisfied, however, from reading the entire proof, that appellee’s contention as to the rate of speed is not borne out by the evidence. With the proof as to rate of speed in the condition indicated, the jury were instructed that if they believed from the evidence that the plaintiff was without fault but that defendant wantonly and recklessly caused the injury complained of and that the plaintiff had sustained actual damages thereby, then the jury were authorized to allow in addition to such compensatory damages, exemplary damages by way of punishment of such wanton conduct. Appellee was not very seriously injured and the judgment for $2,000 is, in our judgment, far in excess of the amount of pecuniary dam-. ages he has sustained. It is therefore apparent to the court that a good part of the verdict must be considered to have been given by the jury as exemplary damages. We are of opinion that the proof did not warrant the allowance of exemplary damages. While we cannot determine just what part of the verdict was awarded as exemplary damages yet we feel justified in requiring a very substantial reduction in the amount of the judgment if it is to stand.

This opinion will, therefore, be lodged with the clerk of this court and counsel notified thereof. If counsel for appellee shall file a remittitur for $750 within five days thereafter, the judgment will be affirmed in the sum of $1,250 at the costs of appellee; otherwise, the judgment will be reversed and the cause remanded for further proceedings in conformity with this opinion.

Appellee having filed a remittitur herein in the sum of $750, the judgment is therefore affirmed in the sum of $1,250 at the costs of the appellee.

Affirmed upon remittitur.