text:
    The Peoria Packing Company, Appellee, v. Nashville, Chattanooga & St. Louis Railway Co., Appellant.
    Gen. No. 5472.
    1. Common carriers—when evidence need not establish joint liability. If action is in tort charging negligence in the handling of merchandise, the evidence need not establish joint liability but a verdict and judgment against one carrier will be sustained if justified by the evidence.
    2. Common carriers—presumption as to condition of merchandise upon delivery to connecting carrier. When property is delivered to a carrier in good condition to be transported over its own line, and the line or lines of one or more other carrier, and the property is damaged en route, for the purpose of giving an effective remedy to the'owner, who can rarely prove what carrier was to blame for the damage, it is held proof that the goods were delivered to the owner at destination by the final carrier in bad order establishes a prima facie case against said carrier.
    3. Common carriers—what essential to bind shipper to limitations of liability. In order to bind the shipper to limitations of liability it must appear from a preponderance of the evidence that he knew and assented to such limitations.
    4. Common carriers—what does not establish assent to limitations of liability. The fact that the shipper filled up the bill of lading upon a blank furnished him by the initial carrier, is only evidence tending to show assent by the shipper.
    Action in case. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Stevens, Miller & Elliott, for appellant.
    Ira J. Covey, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

In June, 1908, The Peoria Packing Company delivered a carload of packing house products to the Chicago, Peoria & St. Louis Railway Company at Peoria for shipment over its line and over the lines of the Illinois Central Railroad Company and the Nashville, Chattanooga & St. Lonis Railway Company to W. S. Rogers & Company at Atlanta, Georgia. When the car was received by the consignee, the contents had been badly damaged. The contents of the car were sold in Atlanta for what they would bring, and the Peoria Packing Company brought this suit in the circuit court of Peoria County against the three railroads named to recover the difference between the value of the merchandise as shipped and the amount for which it sold in Atlanta after having been damaged. There was a jury trial and, at the close of plaintiff’s evidence, each defendant offered an instruction requiring the jury to find it not guilty. Such an instruction was given by the court as to the”defendant, Illinois Central Railroad Company, and was refused as to the others. Plaintiff then dismissed the suit as to the Illinois Central Railroad Company.

At the close of all the evidence the jury returned a verdict in favor of plaintiff and against the Chicago, Peoria & St. Louis Railroad and the Nashville, Chattanooga & St. Louis Railway and assessing plaintiff’s damages at $1,423. Motions by both- defendants for a new trial and by the defendant, Nashville, Chattanooga & St. Louis Railway, in arrest of judgment, were overruled, judgment was entered on the verdict against both defendants, and the defendant, Nashville, Chattanooga & St. Louis Railway, appeals therefrom.

The evidence shows that the packing house products with which the car in question was loaded were in good condition when loaded at Peoria, and that, at that time, these goods were worth $3,030.44; that, on arrival in Atlanta in a damaged condition, the goods were worth just what they sold for, or $1,741.98, a difference of $1288.46; and the jury, in adding interest at 5%, or $134.54, to the amount of this difference and returning a verdict in the sum of $1,423 were justified by the evidence, if appellant was liable for the injury.

This suit is an action on the case for negligence. The declaration contained four counts and two additional counts. Each count charged that defendants were common carriers of merchandise, and transported this car of merchandise from Peoria to Atlanta for a certain reward paid by plaintiff. Some counts charged that defendants were associated in transporting merchandise from Peoria to Atlanta under a contract for a division between them of the profits, expenses and losses, and that the Chicago, Peoria & St. Louis Railway company made the contract for this shipment in its own name, but for the benefit of all the defendants. Other counts charged that defendants were operating a transportation line from Peoria to Atlanta. Other counts charged that defendants were operating certain railroads, and that each defendant was one of a series of railroad companies, whose roads formed a continuous line from Peoria to Atlanta, and that this car of merchandise was delivered by plaintiff and received by defendants to be transported from Peoria to Atlanta. Each count charged, in varying language, that the defendants so negligently and carelessly transported said carload of merchandise that said merchandise was broken, injured and deteriorated in value when it reached its destination. The allegations were more full and ample than we have stated. Appellant filed the general issue and a plea denying joint liability with the other defendants. Issue was joined on these pleas. In its motion for a new trial appellant contended that it was not liable jointly with the Chicago, Peoria & St. Louis Railway Company. The abstract represents that the bill of exceptions contains a motion in arrest of judgment and an exception to the denial of said motion, but the bill of exceptions in fact does not contain a motion in arrest nor an exception to its denial. If this were assumpsit upon the contract tlie joint liability would have to be proved as alleged, and if the proof did not sustain the allegation it would be necessary for plaintiff to amend the declaration, but in an action on the case for a tort plaintiff may charge the liability of several defendants and have a verdict and a judgment against those defendants who are liable under the proofs, without amending the declaration, and a defendant justly found guilty cannot secure a reversal on the assignment that the judgment against some other defendant is erroneous. Appellant is not harmed by the judgment against the other defendant. We are of opinion that, notwithstanding the plea of joint liability, the only question appellant can here litigate is whether the judgment against it is supported by the record, and that we are not called upon to discuss the foundation for the judgment against the Chicago, Peoria & St. Louis Railway Company, i

In certain printed matter on the back of the original bill of lading, which was prepared by appellee upon a printed blank furnished by the Chicago, Peoria & St. Louis Railway Company, appears the following: .

“Claims for loss or damage must be made in writing to the Agent at point of delivery promptly after arrival of the property, and if delayed for more than 30 days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event.”

The proof shows that it was the custom of the appellee to make out an original bill of lading upon a printed blank so furnished by the railroad company, with several copies, at the time the merchandise to be shipped was packed in cars. This bill of lading, with its copies, was then sent to the railroad company to whom the car was delivered. The original bill of lading was then endorsed by the railroad as a receipt for the goods and was returned to the shipper, to be retained by him. The merchandise in question here arrived at its destination on June 13,1908, and, as the shipper did not file any claim for the damage done to snch merchandise until August 17,1908, appellant argues that appellee is bound by this condition to the bill of lading, so prepared by appellee itself, and hence cannot recover for failure to file its claim within thirty days, as required by this condition of the bill of lading. It is true that appellee did not file its claim within thirty days after the merchandise was received at Atlanta by the consignee, but we consider that that requirement had been waived by the action of appellant itself. As soon as the car in question arrived at Atlanta and was opened and the fact ascertained that these goods had been badly damaged, a correspondence, by telegram and by letter, ensued between appellee and appellant, and as a result thereof it was agreed that one of the officers of appellant and the Atlanta representative of appellee should sell these goods, in their damaged condition, for what they would bring, for the purpose of reducing the loss on this carload of merchandise as much as possible. Until these goods should be sold it would be impossible to know by what amount the loss could be reduced, or in other words, what the actual loss would be. The last of these goods was finally disposed of about August 13, 1908, and appellee filed its claim on August 17, four days later. "We consider that appellant, by entering into this arrangement for the sale of the damaged goods for what they would bring, consented to the suspension of this condition in the bill of- lading until such sale should be completed. Wabash Ry. v. Johnson, 114 Ill. App. 545. Under that arrangement appellee could hardly be required to file its claim for loss and damages until the actual amount of such loss and damage could be ascertained and that could not be done until after the sale, consented to by appellant as the method of ascertaining and reducing the loss, had been completed. .

Appellant contends that the proof shows this damage to have occurred while the car in question was in transit on the line of the Chicago, Peoria & St. Lonis Railway, and that therefore such railway should alone be held responsible. As we have already stated, the evidence shows that the goods were in good condition when packed and were packed in the usual and customary manner. The evidence further shows that when this car was delivered to the Illinois Central at its yards at East St. Louis the brake beam and connections were missing and had been torn off entirely and the yard master of that railroad, whose deposition was offered by appellant, considered this to be evidence that the car had been derailed. The brake apparatus was repaired by the Illinois Central but the car was not opened. After the car had been repaired, it was forwarded by the Illinois Central, and the trainmen of that road and of appellant testified that nothing happened to this car from that time until it reached Atlanta. .The car inspector of appellant, who examined this car after it had arrived at its destination, testified however that a number of the end boards had been broken in, and also that several other cars in that train had been injured in that and other ways. Other proof showed that these end boards were not broken when this car was delivered to appellant at Martins, Tenn., and also that said other cars were not so broken when placed in appellant’s train at Martins. ' This was convincing proof that some severe injury had occurred to this car and to this train on appellant’s railroad, notwithstanding said testimony of appellant’s trainmen. An inner lining of this car, provided to keep out the heat, had not been broken inside these broken end boards, but, notwithstanding that fact, the force required to break in the end boards of this and other cars may well have been sufficient to dislodge, throw down and break the packages inside the car.

This car was not opened from the time it was sealed by appellee at its packing house until it was opened at Atlanta. No evidence was offered to show positively that this car was derailed while on the line of the Chicago, Peoria & St. Louis Railway. It may be that this car was so derailed and that such derailment caused the damage to the contents thereof. It may be, on the other hand, that the car was not derailed, but that, between the time it left the custody of the Illinois Central at Martins and the time it arrived at Atlanta, something out of the ordinary liáppened to this car which damaged the contents. Certainly some unusual force applied to this car on appellant’s line broke in the end boards. There is no evidence in the record of a sufficiently definite character to justify us in holding that the damage to these goods did not occur while the car was in transit on the line of appellant. The car itself had been damaged, it is true, before it reached Bast St. Louis, but the only evidence of a derailment of the car is contained in an inference drawn by an employe of the Illinois Central. If the evidence of a serious accident to this car was so strong at East St. Louis as to lead to the conclusion that it had suffered a derailment, it is very strange that this car was not opened by the Illinois Central to discover whether or not the contents of the car had been damaged by such supposed derailment.

In view of the conclusion reached by us in the preceding paragraph, the rule of law laid down in Michigan Central R. R. Co. v. Chicago Electric Vehicle Co., 124 Ill. App. 158, must be held conclusive in this case. In that case it is said that, where (under a through bill of lading containing a stipulation exempting the receiving carrier from liability for loss or damage occurring beyond its own terminal) the goods have been carried by the final carrier to the place of consignment for delivery, and are then in a damaged condition the presumption of law is that they were delivered by the receiver to the connecting carrier in good condition, and that the damage occurred while they were in the possession of the delivering carrier. The presumption of law being that the delivering carrier has damaged the property, in an action by tbe owner against it, the plaintiff need only prove the shipment in good condition, and the delivery in damaged condition. A number of cases in support of this principle are there cited. In Connelly v. Illinois Central Ry. Co., 113 S. W. Rep. 233, the court said:

“When property is delivered to a carrier in good condition to be transported over its own line, and the line or lines of one or more other carrier, and the property is damaged en route, for the purpose of giving an effective remedy to the owner, who can rarely prove what carrier was to blame for the damage, it is held proof that the goods were delivered to the owner at destination by the final carrier in bad order establishes a prima facie case against said carrier. This is-because it could have protected itself from responsibility for losses occurring prior to its reception of the property by an inspection of its condition at the transfer point. And, moreover, sources of evidence regarding where the blame rests are more accessible to the last carrier than they are to the shipper.”

In view of the principles laid down in these cases, and cases cited therein, it is clear to us that appellee was justified in bringing its action against appellant as the final carrier of this shipment, and that the verdict and judgment against appellant should not be overturned upon the evidence. The judgment obtained by appellee against the initial carrier is not questioned by any error assigned, and cannot be questioned by appellant.

Appellee’s first given instruction told the jury that a receipt and the stipulations contained in it are not binding upon the shipper unless it appears from the preponderance of the evidence that he knew and assented to them, and appellant contends that the trial court erred in submitting to the jury the question whether or not that contract or bill of lading was assented to by the shipper and in instructing that the burden of proving such assent was upon the defendant. Under the authority of Ill. Match Co. v. C. R. I. & P. Ry. Co., 250 Ill. 396, we find no error in the giving of this instruction. The same case applies equally to appellee’s second given instruction and appellant’s criticism thereof. The fact that appellee filled up the bill of lading upon a blank furnished by the initial carrier is only evidence tending to show assent by the shipper, and does not change the rule of law. The question whether appellee did consent to the limitations in the bill of lading was for the jury. Wabash R. R. Co. v. Thomas, 222 Ill. 343. Appellee’s sixth given instruction told the jury that the burden was upon appellant, as the final carrier, to’ show that the goods in question were not injured through its negligence. In view of what has already been said herein in regard to the lack of conclusive evidence tó show whére these goods were damaged, and the principles laid down in the cases of M. C. R. R. Co. v. Chi. Elec. Vehicle Co., and Connelly v. Ill. Cent. Ry. Co., supra, we consider that this instruction was properly given. Appellant also complains of the action of the court in refusing its first and second instructions. The first of these held that it was incumbent upon appellee to show in whose custody the goods were when damaged, and that, if the jury believed from the evidence that the injury did not occur while the goods were in the possession of appellant, they shoüld find for appellant. This instruction was clearly wrong, in view of the principles laid down in M. C. R. R. Co. v. Chi. Elec. Vehicle Co., supra. Appellee was not bound to show where these goods were when damaged, but could rely upon the presumption of law that they were in the custody of the final carrier, appellant here. The jury were fully instructed that, if the greater weight of the evidence showed that the goods were not injured while in the custody of appellant, then they should find appellant not guilty. The second of appellant’s refused instructions told the jury that appellee must show by the greater weig’ht of the evidence on which line of road the injury occurred in order to recover. This instruction was also incorrect, for the same reasons. Appellant had the burden of proving that the damage did not occur on its line, after appellee had proven the shipment of the goods in good condition and their arrival at destination in bad condition. In view of these principles of law, these two instructions were properly refused.

We find no reversible error in the record, and the judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    George S. Weidman, Appellant, v. Harry Huyett, Appellee.
    Gen. No. 5483.

      Veedicts—when not disturbed. The Appellate Court is only at liberty to interfere with the verdict of a jury iu ease such verdict appears to be contrary to the manifest weight of the evidence.
    Trover. Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Wingert & Wingert, for appellant.
    Brooks & Brooks and J'oi-in P. Devine, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Cfeorge S. Weidman brought this action in trover against Harry Huyett to the September term, 1910, of the Circuit Court of Lee county. Upon a jury trial in October, 1910, there was a verdict in favor of defendant and, after motions for a new trial and in arrest of judgment had been overruled, judgment was entered in favor of defendant for costs, from which the plaintiff below appeals.

Appellant owned and operated a farm in Lee county. The adjoining farm was owned by one Raffensberger, but was leased to appellee from February, 1907, to December, 1908. Appellant had made an agreement with the owner of the adjoining farm, by which half of the division fence was to be kept in repair by each owner or by his tenant. It appears from the evidence that appellee did not carry out his part of the fence agreement and that some hogs belonging to appellant got through the fence and wandered onto the land occupied by appellee. Appellanit claims that he discovered that he was losing hogs from time to time while appellee was the tenant of the adjoining farm and that, in all, he lost about 40 hogs. Appellant at one time bought nine hogs of appellee, but did not identify them as having formerly belonged to him. Appellee sold hogs also to one Hausen at different times, in all selling Hausen 12 to 15 head. Appellant now claims that both the hogs sold to him by appellee and also the hogs sold by appellee to Hansen must have been the property of appellant and he brings this suit to recover the value of such hogs. Appellant proved by himself and by former employes of appellee, that his (appellant’s) hogs had many times gone through the division fence and run at large on appellee’s land; that appellee had never, at any time, owned enough hogs so as to be able to sell as many as he did sell to appellant and Hausen; that appellee had told some of his former employes that he had taken up some of appellant’s hogs and had sold them to appellant. Appellant testified that appellee, when charged with taking appellant’s hogs and selling them to appellant, admitted it and agreed to pay appellant for them, bnt had never done so.

On the other hand, the evidence favorable to appellee showed that appellant conld not, at any time, identify any of the hogs in appellee’s possession as having belonged to appellant; and, further, that appellee had stated to others that he did not know that the hogs in question were his. Appellee denied that he had ever admitted taking appellant’s hogs and had offered to pay appellant for them. Appellant testified to certain occurrences as having taken place in 1908 while Mitchell, one of appellant’s principal witnesses, placed the same occurrences in the year 1907. Appellant while on the witness stand, appeared to be reading certain names and dates from a memorandum book, but it afterwards transpired that the items *so read by him were, not contained in that book. Appellee admitted taking up nine hogs in October, 1907, which he kept till April, 1908, and then sold to appellant. Appellee claims that he notified appellant, at the time, that he had taken up some hogs and appellant should come and see if they belonged to him, but that appellant never paid any attention to the matter. Appellee also testified that, during the time he occupied said farm, he had never taken up any hogs other than the nine just referred to. He claimed to be the rightful owner of the hogs which he had sold to Hausen, as part of the increase of certain hogs which were on the place when he moved in.

The jury saw both parties to this suit and heard their testimony and that of their witnesses. Their verdict has been approved by the trial judge by his refusal to grant a new trial. The jury and the trial judge may have seen that in the conduct and demeanor of the parties and the witnesses which cannot be found in the record. This court would only be at liberty to interfere with the verdict of the jury, which is upon questions of fact only, in case it appears to be contrary to the manifest weight of the evidence, and we do not feel able to say that such a condition exists in this case. No errors have been pointed out and argued by appellant in the rulings of the court on evidence or instructions and we must therefore consider that such errors, if any there be, have been waived.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


author: Mr.. Justice Willis

text:
    The People of the State of Illinois, Defendant in Error, v. Michael Mines, Plaintiff in Error.
    Gen. No. 5462.
    1. Writs—when officer not hound to inquire into regularity of proceedings. If the court issuing the writ had jurisdiction of the subject-matter and of the parties, an officer to whom a writ is delivered for service is not bound to inquire into the accuracy or regularity of the proceedings which resulted in the issuance of the writ.
    2. Assault—when upon officer serving writ unjustified. An assault upon an officer attempting to serve process is not justified by a defect in the proceedings which resulted in the issuing of the writ where no personal violence has been used by such officer.
    3. Instructions—when omission of material element immaterial. If an instruction omit a material element such omission is immaterial if the element omitted was established at the trial by uncontroverted evidence.
    Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    A. K. Stearns and Leslie A. Needham, for plaintiff in error.

      Balph J. Dady, for defendant in error.
   Mr.. Justice Willis

delivered the opinion of the court.

Michael Mines was indicted for an assault upon one Waino Peterson, with intent to murder. He was found guilty of an assault with a deadly weapon with intent to inflict upon the person of Peterson a bodily injury, no considerable provocation appearing. Neither Mines’ original nor amended abstracts or the People’s additional abstract show what the judgment of the court below was. He was, in fact, sentenced to imprisonment in the county jail for six months and adjudged to pay a fine and the costs. This writ of error was sued out to review that judgment..

The evidence shows that on June 29,1910, William V. Kelley brought suit in forcible detainer against plaintiff in error before a police magistrate in Lake county to recover possession of certain real estate occupied by plaintiff in error. He obtained a judgment for the same on July 6, 1910, from which no appeal was taken. On August 3, 1910, a writ of possession was issued by the magistrate to the sheriff or any constable of Lake county commanding them to dispossess plaintiff in error and restore said premises to Kelley. The writ was placed with Waino Peterson, a constable of said county, for execution, and he served the writ by reading the original and delivering a copy to plaintiff in error, and he gave him five days to vacate the premises: At the expiration of this time Peterson, with assistants, went to the house on the premises and knocked on the front door. Plaintiff in error appeared at an upstairs window. Peterson told him he had come to carry out the writ and requested plaintiff in error to come down and let them in. He refused to do so and Peterson said, “If you don’t come down and open the place I’m coming in.” Plaintiff in error said, “If you do there will he a funeral.” Peterson replied, “Well, if we have one funeral, we will have two.” Peterson went to the back door, and, according to his testimony, found it fastened by a chair placed against it on the inside. He pushed the door until he could reach the chair and remove it and then opened the door and entered the house. He reached the stairway leading upwards, when the housekeeper for plaintiff in error called out, “Mike, they have got in the back door.” Thereupon plaintiff in error, who was standing 16 feet away and about 9 feet above Peterson, discharged a shotgun at him, and about 43 shot lodged in his leg.

Plaintiff in error’s chief contention on the facts is that the judgment entered by the magistrate was defective in that it adjudged that plaintiff in error was entitled to the possession of the premises described in the complaint, and that the premises were not described in full in the judgment, and also that the judgment did not order a writ of possession. The magistrate had jurisdiction both of the subject-matter and the parties. The writ issued thereon appears to be perfect in all its parts, and fully describes the premises, and it commanded an officer to do the act upon which Peterson was engaged, and it was his duty to proceed to execute the writ. This being true, he was not bound to inquire into the accuracy of the proceeding before the magistrate. Brother v. Cannon, 1 Scam. 200; Magerstadt v. People, 105 Ill. App. 316. The writ was ample protection to him so long as he kept within the power conferred. If he exceeded that power, it would not authorize plaintiff in error to resort to personal violence against him, unless to protect his own person from violence and injury. Lattin v. Smith, Breese 283. The evidence is clear that plaintiff in error was the aggressor. It would be an intolerable doctrine to hold that an officer receiving a perfect process issued by a court which had jurisdiction of the subject-matter and of the parties, may be shot with impunity by the defendant in the writ while the officer is executing' it, if it shall turn out that there is some defect in the judgment- upon which the writ was issued. If that were the law, then every sheriff and constable must consult a lawyer before executing a writ and have the judgment examined nnd an opinion thereon,, and even then would he liable to he shot if his lawyer made a mistake in his advice. But again, even if the judgment was defective and that defect would give the defendant in the writ a right to resist, it would give him no right to kill the officer, where there has been no violence used against his person. Criminal Code, Sec. 148.

Plaintiff in error next contends that while he sold, the land to Kelley, he had not sold him the house situated thereon. He was defeated in this claim before the magistrate and he now claims he had a right to retry that question under the indictment. Such defense amounts to this: that a constable, executing a writ, could he lawfully shot, if there were a meritorious defense which the magistrate had wrongfully defeated.

It is urged that plaintiff in error was entitled to show his ownership or right of possession in the premises as hearing upon the question of his good faith and to negative malice. We think this position untenable, as the question of the right to the possession of the premises was determined in the forcible detainer proceedings, from which plaintiff in error failed to appeal, and defendant in error was not, in this trial, concerned with or affected by any dispute between plaintiff in error and the plaintiff in the forcible detainer proceeding.

It is urged that the court erred in giving defendant in error’s 3rd, 4th and 7th instructions, and in refusing plaintiff in error’s 24th and 25th offered instructions. It is contended that instruction No. 3 was defective because it did not require the jury to find that Peterson was an officer authorized by law to execute the writ, Peterson testified that he was a constable at the time, and his commission was also introduced in evidence, and there was no proof tending to show anything to the contrary. The proof is conclusive that he was a constable and authorized to execute the writ. We think that the omission of that element from the instructions was not erroneous. The 4th instruction related to the proof of crime by circumstantial evidence. This instruction was given verbatim in Moore v. People, 92 Ill. App. 137, and that case was afterwards affirmed in 190 Ill. 331. The 7th instruction defined the doubt which would justify an acquittal. A similar instruction was approved in Siebert v. People, 143 Ill. 571, on the authority of Weaver v. People, 132 Ill. 536. Plaintiff in error’s refused instructions 24 and 25 were offered on a theory that Peterson and his assistants were, while executing the writ of restitution, engaged in an unlawful assault upon the habitation of plaintiff in error. As the evidence clearly discloses that they were acting within the authority conferred upon them by the writ, and in discharge of a duty imposed upon them by law, the refusal of the instructions was not error.

Finding no error in the record, the judgment of the circuit court is affirmed.

Affirmed.


author: Mr. Justice Willis Pee Curiam :

text:
    John H. Savage, Administrator, et al., Appellees, v. Lovina B. Luther, Appellant.
    Gen. No. 5409.
    1. Evidence—when hearsay competent. Hearsay is competent upon questions of pedigree and heirship.
    2. Administration of estates—in whom right of administration not vested. By section 18 of the Administration Act no right of nomination is conferred either upon the public administrator or creditors entitled to administration, nor is any non-resident entitled to nominate.
    3. Administration of estates—when appointment of public administrator improper. It is error to appoint the public administrator upon the petition of creditors filed nine days after the death of the intestate where no emergency exists, and in the event of the existence of an emergency administration to collect should be granted.
    4. Administration of estates—duties of public .administrator. It was not intended by the statute to give the public administrator a foothold from which to wrest the administration from the heirs at law. His only proper function is to accept administration when administration is necessary and the specified heirs and distributees have failed to exercise their preference to administer or to nominate within the time given them therefor.

      Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded with directions.
    Opinion filed April 21, 1911.
    Rehearing denied, additional opinion filed May 25, 1911.
    Herman Welk and Snapp & Heise, for appellant; Frederic C. Ellis, of counsel.
    Morrill Sprague and Johh T. White, for appellees.
   Mr. Justice Willis

delivered the opinion of the court.

Mrs. Hortense S. Teeple died at Joliet on March 23, 1909, intestate. On March 30, 1909, Malinda Lehman, O. C. Davis, M. D., and George N. Chamberlin & Son, alleging themselves to be creditors of the deceased, filed a petition in the Probate Court of Will county, praying that letters of administration on the estate of said deceased issue to the public administrator. On April 1, 1909, the Probate Court ordered letters of administration upon said estate issued to said public administrator. Thereupon an attorney for Mrs. Lovina B. Luther, represented to be a sister of said deceased and a resident of Bedlands, California, objected to said appointment, which objection was overruled and she prayed an appeal to the Circuit Court, which was granted upon her filing bond within twenty days. On April 10,1909, she filed in the Probate Court certain objections, one of them being that the letters were granted under a misstatement of facts and that the court was imposed upon; that the appointment was a violation of the rule of precedence provided by statute, being entered before the expiration of sixty days from the death, when there was a resident next of kin entitled to a share of the estate, and that the court had no jurisdiction to make the appointment. On April 19, 1909, Mrs. Luther filed her appeal bond, which was approved by order of court. On March 9, 1910, the public administrator entered a motion in the Circuit Court to dismiss said appeal. On May 31, 1910, the motion was heard and on June 2, 1910, it was denied and the case was set for hearing for June 8, 1910. On June 8, 1910, the cause was heard and taken under advisement and on June 10, 1910, the court entered an order finding that said Hortense S. Teeple died at Joliet on March 23, 1909, intestate, leaving no husband, no child, or children, nor any descendant of any deceased child or children, no father or mother, no brother, no sister, residing in Illinois, but left personal property which should be administered ; that within sixty days after her death said Malinda Lehman and others petitioned the Probate Court to grant letters of administration to the public administrator; that on April 1, 1909, said matter was heard in the Probate Court and no person entitled under the laws of Hlinois to administer appeared in said court and that the court appointed the public administrator; that Mrs. Luther, a sister of deceased, resided in the State of California; that the petitioners as creditors had a right to petition for the appointment of the public administrator within sixty days after the death of the decedent, and that no next of kin entitled to administer or to nominate an administrator had appeared in the Circuit Court asking to administer or to nominate; and the order thereupon proceeded to again appoint the public administrator to administer upon said estate, on giving bond, and directed that the clerk of the Circuit Court certify the order to the Probate Court for the administration of the estate. Prom that order Lovina B. Luther appeals to this court.

At the trial in the Circuit Court Malinda Lehman was a witness called by appellees, solely to prove that she was a creditor of deceased. The court overruled objections by appellant to her competency to be a witness under section 2 of the Act in relation to Evidence and Depositions. Her evidence on that subject was immaterial, for appellant admitted that Dr. Davis and Chamberlin & Sons were creditors. But proof that they were creditbrs was not alone sufficient to show that they were entitled to nominate or administer. The only other evidence appellees offered was a certified copy of the petition filed by said creditors in the Probate Court, signed by the creditors named. They could make no proof in their own favor by mere allegation, and the only positive force of said certified copy of said petition, if it had any, was by virtue of the certified copy of the affidavit of Malinda Lehman to the truth of said petition. By said certified copy of said affidavit to said petition, and by no other proof, appellees showed that Mrs. Teeple died on March 23, 1909, intestate, possessed of a bond and cash and promissory notes, worth about $1,400; that she left surviving her no child or children nor representatives of any child or children, one sister, Mrs. Lovina Luther, a resident of California, and representatives of deceased brothers and sisters, but that no next of kin, who at the time of the death of the intestate would be entitled to a distributive share in her estate, resided in Illinois. Appellant objected to this proof on the ground that the creditors had no right to nominate until sixty days had expired and also that they had no right to nominate at all. The court overruled the objections and appellant excepted. The capacity of the public administrator was admitted. Appellant called ■ Mrs. Lovina Luther Dunlap, a daughter of Mrs. Luther, and a resident of this State, who testified that her mother had a sister named Jane Call; that Jane Call was dead, and that a son of Jane Call, named Bansom N. Call, lived at 4808 Park avenue, Chicago, and had lived in Chicago since the World’s Fair, and worked in the Chicago Post Office. It seems to be contended that this evidence was in part hearsay, but hearsay is competent on questions of pedigree and heirship. Cuddy v. Brown, 78 Ill. 415; Harland v. Eastman, 107 Ill. 535; Stumpf v. Osterhage, 111 Ill. 82; Metheny v. Bohn, 160 Ill. 263; Chilvers v. Race, 196 Ill. 71; Modern Woodmen of America v. Graber, 128 Ill. App. 585. Appellant’s counsel then stated to the court that Ransom N. Call had gone upon his vacation at the time the date was fixed for the hearing of this cause and would not be back till June 15th, and suggested a postponement of the hearing till that time and they would then produce Ransom N\ Call. The court declined to wait. Appellant then offered in evidence an affidavit of Ransom N. Call, to which an objection was made and sustained. This objection was general only and was not upon the ground that it was an affidavit. Ransom N. Call was competent to testify in the case, and we are of opinion that the general objection interposed could not have been intended by appellees to raise the question whether in this kind of a case proof could be made by affidavit, in view of the fact that they had largely made their proof by affidavit. But if a special objection to that effect had been made, yet as appellees had been permitted to make substantially their entire case by a certified copy of an affidavit of a person of doubtful competency as a witness, the court certainly would, on that account, have been bound also to admit an affidavit on the part of appellant. The principle applicable is laid down in Illinois River Packet Company v. Peoria Bridge Assn., 38 Ill. 467, and Mitchell v. Milholland, 106 Ill. 175. The court therefore should have admitted in evidence the affidavit of Ransom N. Call because it had already admitted a certified copy of an affidavit of Malinda Lehman to establish essential parts of appellees’ case. The affidavit of Ransom N. Call gave a full and detailed statement of the heirship of the deceased, and showed that he was a son of Jane Call; that Jane Call was a sister of the deceased, and that Jane Call died prior to the death of said Hortense S. Tee-pie; that Ransom N. Call lived in the city of Chicago, and had lived in this' state for sixteen years; that on April 8, 1909, said Ransom N. Call filed his petition in the Probate Court of said Will county in the matter of said estate, asking that said public administrator be removed, the order of his appointment vacated and that the administration of said estate be committed to said Mrs. Dunlap, a niece of the deceased, and a resident of Cook county; and that said Call and said Mrs. Luther also petitioned said Probate Court on April 10, 1909; and that he thereby exercised his right of nomination vested in him by the statute, and that the Probate Court refused to act on said petition and continued the hearing thereof until the present appeal should be disposed of. It will be observed that these petitions by Ransom 1ST. Call on April 8, 1909, and by Ransom N. Call and Lovina B. Luther on April 10, 1909, were filed in the Probate Court sixteen and eighteen days respectively, after the death of Mrs. Teeple, and nine days before Mrs. Luther had perfected her appeal, and at a time therefore when the Probate Court had complete control of the whole matter. .

Section 51 of the Statute of Wills of 1829 directed that administration of the estate of an intestate be granted to the husband or widow or next of kin or some of them, giving the widow the preference, but if no widow or relative of the intestate should apply within sixty days from the death, the Probate Court might grant administration to any creditor who applied for the same, and if no creditor applied within fifteen days after the sixty days, then administration might be granted to any person who the probate judge thought would best manage the estate; and if the intestate was a non-resident or without a widow, next of kin or creditors in this State, but having property within this State then administration should be granted to the public administrator. Section 55 of the Statute of Wills of 1845 (R. S. 1845 p. 547) is in substantially the same language, as also is section 18 of the Act of 1872 in regard to the Administration of Estates, which forms chapter 3 of the Revised Statutes of 1874, except that the latter section provides that no non-resident of the State may be administrator. Section 18 of said last named Act was amended in 1891 (Laws of 1891, p. 1), the only substantial change being that the surviving husband or wife and the next of kin were not only given the preference for sixty days to administer but they were also for the first time given the right to nominate some competent person within said sixty days. Said section 18 was again amended in 1897 (Laws of 1897, p. 1). The amendment sought to make special provisions for counties having a population of 200,000 or over. Afterwards these provisions were held unconstitutional in Strong v. Dignan, 207 Ill. 385. Up to this time the legislation had been uniform that no creditor had any right of administration or to interfere with the administration during the first sixty days after the death of an intestate, but all right to administer, as well as to nominate an administrator, rested in the surviving husband or wife or the next of kin. There were then and are now and for many years have been other statutory provisions by which where there is a contest as to the right to administer, or any contingency happens causing great delay in administration, the court may appoint a person to collect and preserve the estate until administration is granted, who is to safely keep and deliver the estate to the proper executor or administrator when duly qualified; so that creditors were not without relief if the preservation of the estate required some action before the surviving husband or widow or next of kin had applied for letters or nominated during the sixty days. But the creditors had no right to interfere with administration as such during sixty days following the death. Said section 18 was again amended in 1905 (Laws of 1905, p. 2). That act is still in force, and if these creditors had the right to nominate the public administrator and secure his appointment on the ninth day after the death of Mrs. Teeple, they acquired it." under this last amendment.

Section 18 as amended in 1905, gives the preference in administration to the persons mentioned and in the order there established, the classes entitled being numbered from one to nine, inclusive. The first eight are (1) the husband or wife, (2) the children, (3) the father, (4) the mother, (5) the brothers, (6) the sisters, (7) the grandchildren, and (8) the next of kin. After each of these descriptions of a person or persons entitled to administer is also included any competent person nominated by him, her or them. The ninth is “to the public administrator or to any creditor who shall apply for the same.” These words follow: “Provided, that only such persons as are entitled to administer under this act shall have the right to nominate. When several are claiming and are equally entitled to administration, the court may grant letters to one or more of them, preferring relatives of the whole to those of the half blood. Preference and the right to nominate under this act must be exercised within sixty days from the death of the intestate, at the expiration of which time administration shall be granted to the public administrator.” Another provision deprives a non-resident of the right to appoint or act. It will be observed that while each of the eight classes first named is given a right not only to administer but also to nominate, no right to nominate is given to the ninth class, consisting of the public administrator and any creditor. While the proviso immediately following says that only such persons as are entitled to administer shall have the right to nominate, it does not say that every person entitled to administer shall have the right to nominate, and the obvious purpose of the first sentence of that proviso is to prevent any of the first eight classes from nominating if they are non-resident. It is therefore clear that these creditors did not possess the right to nominate, and therefore the Probate Court should not have issued letters of administration to the public administrator upon the nomination of said creditors. We are also of opinion, when this entire section is read, that it was not the intention of the legislature to abandon the statutory policy which had prevailed in this state for over seventy-five years that the surviving husband or wife and the various relatives should have the preference to administer during the period of sixty days after the death of the intestate. The relatives of the deceased are interested' in an economical administration of the estate, so that as much as possible may be saved for the distributees. The creditors have no interest except to realize enough to pay their claims. The public administrator obtains his commissions upon the amount which passes through his hands, and he has no personal interest in preserving the estate for the heirs at law. But if this position is not sound, still whatever confusion may have been introduced by the last amendment of said section 18 which places the public administrator and creditors in the ninth and last class of persons specified who may administer within the sixty days, certainly it cannot be held that the previous eight classes of heirs and distributees had lost the right to their preference in the nine days after Mrs. Teeple died which had passed when the Probate Court issued letters to the public administrator on the nomination of creditors, and that the remaining fifty-one days were given by the statute to the public administrator and creditors in which to determine whether they would administer. We are of opinion that if there was any necessity to collect or preserve the estate, an administrator to collect should have been appointed, and that, as no contingency was shown, the Probate Court could not entertain a petition by creditors, even to be themselves appointed as administrators, on the ninth day after the death of Mrs. Teeple, but that their application should have been refused and that the order made .on their petition should have been set aside by the Circuit Court. Moreover, as already held, the affidavit of Eansom N. Call should have been admitted under the circumstances above set out, and when it appeared therefrom that the statements in the petition of the creditors, sworn to by Mrs. Lehman, that there was no next of kin resident in Illinois, entitled to a distributive share of the estate, were untrue, and that Eansom N. Call was a next of kin and was entitled to a share of her estate, and was a resident of this state, and that he had petitioned the Probate Court sixteen days after the death of Mrs. Teeple and nominated a niece of Mrs. Teeple and a resident of the state to administer ; and that he and Mrs. Luther, a sister of deceased, had again petitioned the Probate Court eighteen days after the decease of Mrs. Teeple to appoint said niece, Mrs. Dunlap, administrator, all before the appeal by Mrs. Luther had been perfected, and that Call had thereby exercised his right of nomination twice on the sixteenth and eighteenth days after the death of Mrs. Teeple, the Circuit Court should by reason thereof have set aside the order of the Probate Court and certified the cause back to the Probate Court for its action upon said petitions and nominations. We cannot concur with appellees in their position that the entire administration of the estate had, by Mrs. Luther’s appeal, been transferred to the Circuit Court and that after Call had filed these petitions and made these nominations in the Probate Court before Mrs. Luther had filed any appeal bond there, it was necessary for him then to come into the Circuit Court in this cause and there again within said sixty days from the death of Mrs. Teeple file his petition and nomination.

The public administrator has no right to enter into a controversy with the heirs at law of an intestate to prevent their securing their preference to administer or to nominate, nor should he be permitted to resort to any technicality to prevent a resident heir from obtaining administration or nominating an administrator during the sixty days succeeding the death of the intestate. It was not intended by the statute to give the public administrator a foothold from which to wrest the administration from the heirs at law. His only proper function is to accept administration when administration is necessary and the specified heirs and distributees' have failed to exercise their preference to administer or to nominate within the time given them therefor. Cotterell v. Coen, 246 Ill. 410; Petteys v. Hutchings, 154 Ill. App. 101.

The order of the Circuit Court is therefore reversed and the cause is remanded to the Circuit Court with directions to vacate the order appointing the public administrator and to certify such action to the Probate Court for its further action in conformity with this opinion.

Reversed and remanded with directions.

Upon consideration of a petition by appellees for a rehearing herein the following additional opinion was filed on May 25, 1911.

Pee Curiam :

The petition by appellees for a rehearing contends that in the foregoing opinion we have improperly considered the transcript from the Probate Court, which was not offered in evidence, and the affidavit of Bansom N. Call which was not admitted in evidence. This is not an ordinary law suit. The only question before the Circuit Court was whether the Probate Court acted pursuant to law in appointing the public administrator at that time upon the nomination of creditors. We do not concede that the suggestions in the petition for a rehearing are well founded, but if they are, still the reversal and the directions above given are required, under our construction of the statute, by the evidence admitted to be competent. The public administrator was appointed to administer this estate on the nomination of creditors, while the statute does not give the creditors any right of nomination. This was done nine days after Mrs. Teeple died, while the statute gave the resident next of kin sixty days after, her death in which to take out letters of administration or to nominate an administrator. The proof, the competency of which is not questioned, showed that there was an adult next of kin resident in this state. Though Mrs. Luther could not administer or nominate because she was a non-resident, yet the proof shows that she was a next of kin, and she was therefore authorized to protect her interests in the estate and to appeal from an unlawful grant of administration. By the course pursued the adult resident next oi kin has been kept out of his right to administer or to nominate for over two years, though he exercised his right of nomination in the Probate Court within sixteen days after Mrs. Teeple died, and before Mrs. Luther filed her appeal bond, and when no question could exist of the authority of the Probate Court to act thereon.

So far as this record shows, creditors began this proceeding. In giving bond as administrator of this estate, the public administrator obeyed the order which section 47 of the Administration Act authorized to be entered in a proper case. What we said in the preceding opinion concerning the duty of public administrators was designed as a guide to that body of public officials. The record before us does not show that the public administrator in this case applied for letters or initiated the proceeding.

The petition for a rehearing is denied.


text:
    The People of the State of Illinois, Defendant in Error, v. George W. Foreman, Plaintiff in Error.
    Gen. No. 5455.
    1. Evidence—when interlineations do not affect competency. Interlineations in an official certificate if satisfactorily explained will not affect the competency of such certificate.
    2. Dram-shops—when internal revenue special tax stamp proper. In a prosecution for selling liquor in anti-saloon territory an internal revenue special tax stamp is competent, notwithstanding it contains no statement that it sets forth all that is shown by the record in the office of the internal revenue collector.
    Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Lake county; the Hon. DeWitt L. Jones, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    George W. Field, for plaintiff in error.
    Ralph J. Dady, for defendant in error; Howard P. Castle, of counsel.
   Mr. Justice Willis

This is a prosecution by information in the name of the People against George W. Foreman for the violation of an act entitled, “An Act to provide for the creation by popular vote of anti-saloon territory, within which the sale of intoxicating liquor and the licensing of such sale shall be prohibited. ’ ’ He pleaded not guilty. On a trial the jury found him guilty. A motion for a new trial was denied. He was sentenced to 30 days’ imprisonment in the county jail and adjudged to pay a fine of $75 and costs. This writ of error was sued out to review the judgment.

The village of Barrington lies partly in Cook and partly in Lake counties. Proof was made that the village had adopted the Anti-Saloon Territory Act; that before the village adopted the act plaintiff in error conducted a saloon in that portion of the village situated in Lake county; that at the time of the filing of the information he occupied the same building, which contained a front and back bar, an ice box, cigar case, several tables, and a pool table; that he had an internal revenue special tax stamp or receipt issued by the XT. 8. for retailing liquors in Barrington. One E. M. Baker testified for the People that on the first six days of July, 1910, he bought beer and whiskey in large quantities in said building of plaintiff in error, his wife, his son and one Isaac Fox; that the liquors were intoxicating; that he drank some and took some away. Plaintiff in error denied that he sold Baker any intoxicating liquors, and stated that the internal revenue special tax stamp or receipt was to permit him to sell intoxicating liquors at a place outside the village limits ; but he did not call his son or Fox to deny Baker’s testimony. The evidence proves beyond all reasonable doubt that plaintiff in error sold liquors in his place of business in the village of Barrington, and that said village was anti-saloon territory, and that the liquors were intoxicating within the meaning of the statute. No intelligent, fair-minded jury could have found otherwise.

It is contended that the court erred in admitting the certificate of the clerk of the village of Barrington, showing that the village had adopted the Anti-Saloon Territory Act, on the ground that it had been interlined so as to alter it materially. The certificate did show on its face some interlineations, but the assistant state’s attorney, for the purpose of explaining the apparent interlineations, examined the certificate and testified that its condition was the same as before it was signed and the seal affixed by the clerk. His evidence was not contradicted and the certificate was competent evidence.

No authorities are cited in support of plaintiff in error’s contention that the court erred in not excluding from the consideration of the jury, on his motion, the internal revenue special tax stamp or receipt. It was admitted without objection. Counsel admits that it was prima facie evidence of the unlawful sale of intoxicating liquor, but urges that it should have been excluded because it was not the best evidence of the sale of liquor, as it states the place of business as Barrington, and nowhere states that it contains all that is shown by the record remaining in the office of the internal revenue collector, as it might there appear that Barrington was plaintiff in error’s post office address only. There was no error in denying the motion. People v. Joyce, 154 Ill. App. 13.

We find no reversible error in the record, and the judgment is therefore affirmed.

Affirmed.


text:
    Marietta Crandall, Appellee, v. Jacob H. Krause, Appellant.
    Gen. No. 5469.

      Evidence—as to what opinions competent. Persons experienced in operating automobiles, may, if the fact is material, be permitted to testify that an automobile of a particular kind in question running at a certain speed could be stopped in less than a specified distance.
    Action in case for personal injuries. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    F. E. Carpenter and E. M. St. John, for appellant.
    E. D. Reynolds, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

On June 29, 1910, Marietta Crandall, while crossing Walnut street on the west side of First street in the city of Rockford, was injured by a collision with ah automobile driven by Jacob H. Krause. She brought this suit in the Circuit Court of Winnebago county to recover damages. The declaration alleged that Krause was running the automobile carelessly and negligently without giving proper signals, and that she was in the exercise of due care. On a trial she had a verdict and a judgment for $800 and Krause prosecutes this appeal.

The evidence shows that appellee was 72 years of age; that she started from her home on First street about 8:30 on the morning of the accident and was walking north on the west side of said street, and crossing Walnut street, which intersects First street at right angles, when injured. It also shows that appellant had turned around the corner from State street one block north and was coming south on First street as appellee approached the crossing. She testified that she looked and saw a sprinkling wagon coming from the west on Walnut street; that the only automobile she saw was quite a distance east on Walnut street; that she thought she had time to cross before it got there; that she hurried a little in passing the sprinkling wagon, then slowed down a little, and went right along, and the first thing she knew she was knocked down. Appellant testified that he was running four or five miles an hour as he made the turn, and at that time appellee was within fifteen or twenty feet; that she passed in front of the sprinkling wagon and stopped about a minute or a little over; that she was running right in front of the lamp on his automobile; that her body was on the front of the car and that she fell oft under the car; that he tried to stop the car when she was on it, but could not, and that he stopped as soon as he could. Two witnesses testified that appellee was carried ten or fifteen feet. Two others testified that she was picked np fifteen or twenty feet west of the crossing. Four witnesses state that the machine stopped about seventy-five or eighty feet west of the crossing. One testified that appellant was about 140 or 150 feet north of the crossing when he sounded his horn; that he was then running at the rate of six or seven miles an hour. Another witness said that he did not hear the horn sound, but that the machine was running six miles per hour. Appellant said he sounded his horn, but just where is not shown by the proof. Two expert operators testified that a machine of the type appellant was operating, running at the speed of five or six miles an hour, could be stopped in eight or ten feet. There was no evidence tending to show that appellee had occasion to suspect that an automobile going south would turn the corner and run into her.

This accident occurred at a street crossing. Hence, the rights and duties of each of the contending parties were identical. Therefore it was the duty of appellant to have his machine under such control that he could prevent its running over any person at the street crossing, as well as it was the duty of appellee to avoid being run over. The question of appellant’s negligence and appellee’s care were for the jury to decide. It saw and heard the witnesses. It was their peculiar province to judge of their credibility, and the weight to be given their testimony. There was ample evidence, if believed by the jury, to warrant it in deciding these questions in favor of appellee.

No question was raised concerning the instructions.

The only objection to the admission of evidence that is argued is that appellee was improperly permitted to prove that an automobile of the kind operated by appellant, running at the rate of five or six miles an hour, could have been stopped in much less than seventy-five or eighty feet. This proof was given by witnesses experienced in operating automobiles, and was competent as bearing upon appellant’s negligence in operating the automobile as it came in contact with appellee. Chicago City Ry. Co. v. McLaughlin, 146 Ill. 353.

It is also claimed that the damages are excessive.

The proof shows that appellee was quite badly hurt, and was confined to her bed for some time. Her family physician testified that up to the time of the accident she was in a fair condition of health for a woman of her age; that he examined her after the accident, found a bruise on the anterior part of her body, right leg, right thigh, and an abrasion over the left leg from the knee down and on the right thigh from the knee up and a bruise on her right cheek and one on a wrist; that he visited her several times and that she complained of great pain, mostly in the chest and limbs; that she had traumatic neuritis and pleurisy resulting from the accident, and in his opinion the neuritis would occur again from the injury. Her daughter, a practical nurse, testified that her mother’s health was good prior to the injury; that she was not lame; that she was in as good health as anyone of her age could be; that since her injury she was nervous and weak; that she moaned in her sleep and gave evidences of pain; that she had been lame in her left limb since her injury, While the damages may appear excessive from the injuries described by the physician, still, when the pain and suffering which she' endured is considered and the probability of the recurrence of the neuritis, we do not feel that we would be justified in saying that they were so excessive as to require this court to order a remittitur.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Henry J. Johnson, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 5476.
    1. Verdicts—when not disturbed,. A verdict will not be set aside on review as against the weight of the evidence where not clearly and manifestly so.
    2. Instructions—when inaccuracies will not reverse. If a case is not close on the facts mere inaccuracies in instructions will not necessarily work a reversal.
    Action in case for personal injuries. Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Rehearing denied November 23, 1911.
    J. C. Seyster, for appellant; W. S. Horton & Blewett Lee, of counsel.
    Franc Bacon, for appellee; Frank Wertz, of counsel.
   Mr. Justice Willis

delivered the opinion of the court.

The Illinois Central Railroad Company’s tracks run north and south through the village of Forreston and cross First South street nearly at right angles. The electric light plant of one G-eorge Crombie is located at the northwest corner of the intersection of the company’s west switch track and said street. On the north side of the street, and extending within eighteen inches of the switch track, is an eight foot cement walk. Extending eastward from the end of this walk across the tracks is a plank walk, five feet, three inches wide. On February 14, 1910, the company placed on this westerly switch track and north of said street a box car, and also a car loaded with coal for Crombie. In the afternoon Crombie unloaded a part of the coal at the light plant, and then with a pinch bar pushed the car's farther south, and in so doing, he pushed the. box car so that a part of it projected over a part of the plank walk, where the car remained until between eight and nine o’clock the following morning. Snow had been thrown off the plank walk and piled south of it by the company’s employes and it was slippery at that place. About 6:30 in the evening, Henry J. Johnson crossed the track on the sidewalk along the north side of First South street and passed west along the south end of the box car to the business part of the village, and while returning about 10 o’clock in the evening, he slipped and fell and struck his head and left shoulder against the bumper of -the box car, skinned his forehead and bruised his shoulder. He was treated by. a physician ten or twelve times, and claims that he was unable to work for a month because of the injury. He brought this suit against the company to recover damages. The declaration contained adequate averments to admit proof of the condition of the street, sidewalk, and the position of the box car, the length of time it had been standing on the sidewalk and the extent of appellee’s injuries. A plea of hot guilty was interposed and a trial resulted in a verdict of $150 for Johnson. A motion for a new trial was denied. Judgment was entered on the verdict and the company prosecutes this appeal.

Appellee contends that appellant’s permitting the-car to remain on the highway from between 4 and 5 o’clock in the evening of the day of the accident, nntn 8 or 9 o’clock of the morning following, was a violation of paragraph 77, section 14, chapter 114, Hurd’s R. S., which provides that “no railroad corporation shall obstruct any public highway by stopping any train upon, or leaving any car or locomotive engine standing on its track where the same intersects or crosses a public highway, except for the purpose of receiving or discharging passengers or freight, or for taking in or setting out cars, or to receive the necessary fuel and water, and in no case to exceed ten minutes for each train, car, or locomotive engine.”

The sidewalk was a part of the public highway. The evidence shows that several pedestrians went along that sidewalk and were obliged to turn out on account of the car projecting over a considerable part of it. It is evident that it rendered public travel less safe and convenient.

Undoubtedly appellant was not responsible for the original placing of the car on the highway. It is manifest that for the act of Crombie in placing it there, appellant could not, upon any just ground, be made responsible for the injuries resulting to appellee on account thereof, without some negligence on its part in connection therewith. Appellant’s agent in charge of its station at Forreston testified that he saw the car standing partially over the sidewalk between 4 and 5 o’clock in the afternoon.of the day of the injury to appellee, and that it was not removed until between 8 and 9 o’clock the next morning. The proof also shows that there was at that time at that station, a section gang, under the control of the station agent. It was therefore within the power of appellant’s agent to have had the car promptly removed after notice to him that it obstructed the highway. As the proof shows, Crombie had no difficulty in moving the car while heavily loaded with coal. It is obvious that the section men could have moved it with a pinch bar without difficulty. The fact that no one complained to the agent, or asked to have the car removed, or that there was no engine that could have removed it until the next morning, is not a sufficient excuse for permitting it to remain there an unreasonable length of time. The station agent represented the appellant and notice to bim that the car obstructed the highway, was notice to his employer. Therefore, the agent’s failure to have the car removed within seven or eight hours after notice that it obstructed the highway, was a negligent disregard on the part of appellant of the requirements of the statute, which resulted in the injury to appellee. True, the car being on the sidewalk did not cause appellee to slip, but it did result in inflicting injury upon him, which he would not have received if the car had not been negligently left thereon.

It is urged that because appellee saw the car on the sidewalk at 6 o’clock as he went past it to the business portion of the town, he was bound, as a prudent person, to take some other route. The law did not require him to do that, but simply charged him with the same degree of care that an ordinary man, under a like situation, would exercise. Then too, he had the legal right to believe, and to act on the presumption, that appellant would remove the obstruction, as it was legally bound to do, a reasonable time for such removal having elapsed from the time the appellee first saw the car on the crossing prior to receiving the injury complained of.

Appellant sought to show that appellee was intoxicated at the time he was injured and that he would not have slipped and fallen had he been sober. Appellee spent a portion of the evening in a saloon and Crombie testified he was intoxicated ten or fifteen minutes after his injury. Three witnesses testified for appellee that he was not intoxicated at that time. This question was submitted to the jury under instructions favorable to appellant, and their verdict upon that subject is not manifestly against the weight of the evidence.

Complaint is made of the instructions. We think those given for appellee were much longer than they needed to be, and the instructions for both parties were more numerous than the simplicity of the case required. We are also of the opinion that appellee’s instructions contained some inaccurate statements, which, if the case had been close on the facts, might possibly have misled the jury. But we conclude that appellant was not harmed thereby, for the reason that the facts tended so strongly to make a case for appellee, that the jury could not have found for appellant, except upon the theory that appellee’s injuries resulted from his intoxication. The evidence fully justifying the verdict on that subject, the judgment should not be disturbed because of slight errors of law in the instructions, especially where it is apparent, as it is from this record, that appellee has a cause of action.

Finding no harmful error of law in the record, the judgment is affirmed.

Affirmed.


text:
    Guy Book, Appellee, v. Andrew Aschenbrenner, Appellant.
    Gen. No. 5479.
    1. Evidence—as to what opinion competent. Held, that it was proper to permit a witness to give his opinion as to the rate of speed, at which an automobile was running.
    2. Appeals and errors—effect of failure to object or except. If evidence received is neither objected nor excepted to the ruling admitting the same is not subject to review.
    3. Contributory negligence—acting upon impulse. Where one without his own fault is, through the negligence of another, put in such apparent peril as to cause loss of self-possession, and, as a natural result thereof, he, attempting to escape, puts himself and property in a more dangerous position, this is not, in law, contributory negligence that will prevent him from recovering for the injury.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Harry Edwards and R. H. Scott, for appellant.
    John P. Devine, for appellee.
   Mr. Justice Willis

delivered' the opinion of the court.

Guy Book sued Andrew Asehenbrenner before a justice of the peace of Lee county to recover the value of a horse which Book claimed was killed by reason of the negligent driving of an automobile by Aschenbrenner. Book obtained a judgment for $200 and Aschenbrenner appealed to the Circuit Court of said county. There Book obtained a verdict and a judgment for $170 from which Asehenbrenner appeals.

Cm April 15, 1910, appellee and his wife were driving west in a 'top buggy drawn by one horse along the Franklin G-rove Bo ad toward the city of Dixon. The top of the buggy was up and the back curtain down. The travelled track was macadam and about twenty-four feet wide. Below this on the south side, is a dirt road, and directly south of that is a rise in the land next to the fence of about three feet. Appellee was driving on the south side of the macadam road. Appellant, who was driving a 28 H. P. automobile, approached appellee from behind and passed close to the buggy on the north side of the road. Shortly afterwards the buggy was lying on its side and the horse was dead, but showed no external injury, and the automobile did not show any marks as a result of the collision.

Appellee testified that when he heard the horn of the automobile and the noise of the machine he turned to the south side of the road so that one wheel was about a foot on the macadam; that the horse became excited; that the automobile was running from thirty to forty miles an hour; that it struck the horse on the back of the front leg; that the horse made a few jumps, went on a rod or so, and then the buggy and horse fell over on the road. There was proof that the horse’s hide was removed and the body dissected the same day at the rendering works, and the part back of the right leg was much bruised "and one lung was clotted with blood.

There was proof for appellant that the horn of the automobile was sounded within ten rods of the buggy and again within two or three rods, and that it was running about twenty miles an hour when the first alarm was given. Appellant and two witnesses riding with him testified that the automobile did not touch the horse; that it was running eight or ten miles an hour as it passed; that they noticed that the horse was excited. One said that appellee seemed to be very much excited after the accident.

It is argued that the fact that no marks or bruises were visible on the body of the horse and that the automobile did not show any marks as the result of the collision corroborated appellant’s evidence that the horse was not struck.

The fact that no bruises were visible is not strange, as it is common knowledge that a heavy skinned animal may be struck blows sufficient to break its bones without causing external evidence of the injuries, and it seems obvious that appellee’s horse would not receive such injuries by simply falling on its side on the highway. An automobile travelling in the same direction at a great rate of speed could easily, in our opinion, injure a horse seriously without leaving any marks on the automobile. The absence of evidence of injury to the automobile was of little weight in support of appellant’s theory and the injury to the horse was very convincing proof of appellee’s claim.

It is true that a greater number of witnesses testified for appellant than for appellee, but the preponderance of evidence is not alone necessarily determined by the greater number of witnesses testifying, as a variety of facts and circumstances may arise which properly enter into a determination of that question. We think that the jury was warranted in concluding from all the evidence that the negligent driving of the automobile caused the death of the horse.

Appellant’s contention that the court erred in permitting appellee to give Ms opinion of the rate of speed at which the automobile was running is not before us to determine, because the abstract does not show an objection to either the question or the answer. But the ruling was not erroneous.

It was not error, as urged by appellant, to admit proof that there was' evidence of injury on the horse’s body, for the reason that it intended to establish appellee’s claim that the horse was struck by the automobile.

It is urged that the court erred in giving appellee’s 7th and 8th instructions. Their purpose was to inform the jury that one placed in sudden peril through the fault of another is not expected to act with the same caution as under ordinary circumstances. Appellee could not see appellant approaching on account of the top of the buggy being up and the back curtain down, and the evidence shows that he was excited. The only fault attempted to be attributed to him is that he did not turn to the right. Appellant was at fault by reason of the manner in which he drove under the circumstances. He was guilty of a want of reasonable care, and appellee was without fault so far as we can see from this record. The rule is that where one without his own fault is, through the negligence of another, put in such apparent peril as to cause loss of self-possession, and as a natural result thereof he, in attempting to escape, puts himself and property in a more dangerous position, this is not, in law, contributory negligence that will prevent Mm from recovering for the injury. Morse v. Sweenie, 15 Ill. App. 486; Ill. Steel Co. v. Paige, 136 Ill. App. 410. The instructions were not erroneous under the circumstances appearing in evidence.

The record disclosing no reversible error, the judgment is affirmed.

Affirmed.


text:
    M. Swarttz & Sons, Appellant, v. M. Goodman, Appellee.
    Gen. No. 5485.
    1. Appeals and ebrobs—when sufficiency of evidence not subject to review. If the bill of exceptions does not contain any motion for new trial, any ruling of the court thereon, any exception to such ruling, the question as to whether or not the verdict is supported by the evidence is not presented for review.
    2. Appeals and bbbobs—when rulings upon instructions not considered. If the instructions are merely complained of and the points relied upon in support of the assignments of error not pointed out, the propriety of the instructions will not be considered on review.
    3. Appeals and ebrobs—how original documents presented. If it is considered advisable for the Appellate Court to see original documents they should be required to be certified up by the trial court; they cannot be photographically presented in the briefs.
    Appeal from the County Court of Grundy county; the Hon. Geobge Bedford, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Cornelius Reardon, for appellant.
    J. W. Rausch, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellant is engaged in the manufacture and sale of clothing, with places of business in Philadelphia and Chicago.. Appellee is a retail merchant, with stores in Essex, Reddick, South Wilmington and Gardner, in Kankakee and Grundy counties. In the fall of 1909 a salesman of appellant, named Bilsky, called upon appellee at his store in Essex, and did not sell Tni-m any goods there. Bilsky stayed in Essex that night and went with appellee to -appellee’s store in South Wilmington the next day. The evidence tends to show that appellee became intoxicated before reach-mg his store in South Wilmington, but whether that is proven or not, the evidence is undisputed that Bilsky conducted his negotiations in South Wilmington with Charles Goodman, the son of appellee, who was in charge of the South Wilmington store. So far as the evidence shows, appellee took no part in the negotiations in South Wilmington. Bilsky sold a bill of goods amounting to $375 to appellee at South Wilmington through appellee’s son, who was then about sixteen years of age. Appellee sold a portion of the goods so sold to him, and sent appellant a check for such portion.. Appellee also shipped to appellant that portion of the goods which he did not sell. Appellant refused to receive the goods returned and sent appellee’s check back to him. Appellee returned the check to appellant and it has since been retained by appellant. Appellant sued appellee in the County Court of Grundy county for the price of the goods, and upon a trial there was a verdict and a judgment for appellee, from which plaintiff below appeals.

Charles Goodman, the minor son of appellee, testified that Bilsky, the salesman of appellant, came to the store in South Wilmington with appellee on a certain morning; that appellee, the father of the witness, was “kind of boozy” and went to sleep in the back part of the store; that Bilsky then showed his goods and wanted the witness to buy clothing, with the understanding that Bilsky would help sell the clothing and that any clothing not sold could be shipped back to appellant; and that the witness did not want to do it but that Bilsky “convinced him to do it that way.” Charles Goodman then bought goods to the amount of $375 of - Bilsky and they were received by appellee at South Wilmington in due course of time. This evidence is undisputed by appellant. Bilsky was not a witness for appellant and we are bound to consider that Charles Goodman stated the contract with appellant’s representative correctly.

Appellant claims that the following language: “No goods taken hack unless damaged, or by special agreement. Any objection to terms or prices as stated in this bill must be reported on receipt of same or no changes will be made at time of settlement. All goods shipped and released at risk of purchaser. No claims allowed after 5 days” was printed at the top of their original invoices, but that it had been cut off by appellee or by some one in his interest, before such invoices were introduced in evidence. The proof by appellee is that the invoices, when introduced in evidence, were in the same condition as when received by him, but that is immaterial, for no printed matter at the top of the invoice could revoke or modify the contract previously made by their representative, Bilsky, with the son of appellee.

The bill of exceptions does not contain any motion for a new trial, nor any ruling of the court thereon, nor any exception to such ruling, and in that state of the record the question whether or not the verdict is supported by the evidence is not presented for review. Yarber v. C. & A. Ry. Co., 235 Ill. 589. The rulings of the court upon the instructions are preserved by the bill of exceptions, but appellant does not point out in its argument wherein the rulings upon instructions are erroneous. Appellant states in its brief that some instructions given are erroneous and that other refused instructions should have been given, but practically asks this court to search through the given and refused instructions for errors, and to reverse for any such error as we may find. We do not feel that counsel can cast that burden upon us, and consider that appellant’s failure to point out errors in rulings of the court on instructions is a waiver of any such errors.

The original order was in the sum of $489.75, but the goods shipped amounted only to $375. Appellant has retained the check of appellee for $93 and has introduced no proof to show that the check is not good for that amount. We must therefore consider thát appellant has been paid for goods bought of it by appellee to the amount of $93. The balance of the goods bought by appellee have been returned by him under the terms of the contract with appellant’s representative which is undisputed in the evidence. It is not disputed but what the check for $93 and the goods returned account for the entire bill of goods shipped by appellant to appellee, and the terms of the contract, as proven by appellee and not denied by appellant, gave appellee the right to return any and all goods which he was unable to sell.

Appellant has attached to its brief photographs of what it claims are the original invoices, so mutilated in the interests of appellee. Appellee has moved to strike these photographs from the briefs and that motion must be granted. It is obvious that appellant cannot make evidence in this way, that the originals should have been certified to us in the manner provided by the rules of this court, if it was considered advisable for us to see them, and this not having been done, the motion to strike the photographs from the briefs must be granted.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


text:
    Albert Piper et al., Appellants, v. William Taylor et al., Appellees.
    Gen. No. 5486.
    Attachment and garnishment—how fraud must he established. If a conveyance urged as fraudulent does not so appear by the evidence the burden is upon the plaintiff to show that the defendant by such conveyance did actually render himself insolvent.
    Appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Jay L. Spaulding and Ira C. Gibons, for appellants.
    McEniry & McEniry and Coleman & Coleman, for appellees.
   Mr. Justice Willis

delivered the opinion of the court.

On June 1, 1909, William and Robert Taylor executed a note to Piper and Prutsman, partners, for $2200 due one year after date with interest at 6% in partial payment of an automobile to be used in their livery business at LaSalle, Illinois. The note was shortly afterwards endorsed by the payees and negotiated to the bank at Ohio, Illinois. About March 1, 1910, William Taylor sold out his interest in the livery business to Robert Taylor and moved to Iowa. The note, not being paid at maturity, the bank.called upon the endorsers to pay it. They paid the note and the endorsement was stricken off and the note delivered to them. On the refusal of Robert Taylor to pay the note. Piper and Prutsman brought this suit in attachment against the Taylors on June 7, 1910. The affidavit of attachment stated that the note was past due and not paid and that William Taylor was a non-resident of the state; that the Taylors were about to remove their property from the state to the injury of their creditors; that they had within two years last past fraudulently concealed and disposed of their property to the detriment of their creditors and were about fraudulently to conceal, assign and otherwise dispose of their property so as to hinder and delay their creditors. The attachment was levied upon real estate belonging to the Taylors in LaSalle county and personally served on Robert Taylor and returned “not found as to William Taylor.” On July 6, 1910, an automobile was seized by an attachment issued to the sheriff of Rock Island county. On July 10, 1910, Minnie Beverlin, a daughter of Robert Taylor, interpleaded, alleging that the automobile levied upon was, at the time it was seized, her property. A replication was filed to the interpleader denying that she was the owner of the automobile and re-asserting that it was the property of the Taylors and concluding to the country, to which a similiter was added. Upon a trial the jury returned a verdict finding the right of property and the right of possession thereto in the interpleader. Motions for a new trial and in arrest of judgment were denied, judgment was entered on the verdict, and Piper and Prutsman prosecute this appeal.

Appellees contend that the judgment should not be disturbed for the reason that the proof does not show the insolvency of Robert Taylor.

It appears from the evidence that Robert Taylor ■bought the interest of William in the livery stable and that he owned and operated it at the commencement of this suit, and the return on the LaSalle county writ shows a levy on the interest of both Robert and William Taylor in and to lot 1 and the east half of lot 2 in block 129 in the city of LaSalle, and there is no proof as to the value of either the Every business or the lot. There was no evidence tending to show that the Taylors owed any other debts; that either were insolvent or in failing circumstances, or that the automobile constituted the bulk of Eobert’s tangible property, and for aught that appears in the testimony, they may have been entirely solvent and possessed of abundant property within the jurisdiction of the court of LaSalle county subject to execution. While there might be circumstances in the evidence calculated to excite suspicion that the sale of the automobile to appellee was fraudulent, still in the absence of all testimony that the automobile constituted the whole or chief part of Robert’s property or that he was insolvent or in failing circumstances, there is no evidence at all tending to show that such sale would hinder or delay creditors. Appellants having failed to prove fraud in fact, the burden of proof devolved upon them to show that Eobert Taylor rendered himself insolvent by transferring the automobile to his daughter or was, in fact, insolvent at that time, before appellants could establish presumptive or legal fraud. In passing upon this question in Moritz v. Hoffman, 35 Ill. 553, the court said: “No one will dispute the principle appellant seeks to establish, that a voluntary conveyance, when the grantor is indebted at the time of its execution, is presumptive evidence of fraud, and a fraudulent intent will be presumed from the fact that the party conveying was indebted at the time the conveyance was executed, and that as to pre-existing creditors, every conveyance not made on the consideration valuable in law, is void. ' The principle is thus broadly stated, but it is subject to some qualification; to this extent, at least, that the debtor retains in his possession property sufficient to discharge all debts existing at the time of making the conveyance alleged to be fraudulent. If this was not permitted, trade of every description would be very much crippled, and instead of there being an active interchange of property, the whole business of the country would stagnate. No creditor, without a lien, has any right to complain that his debtor is giving away property to Ms wife or cMIdren, unless such creditor can establish the fact that he has not retained enough to satisfy existing debts. Such grantor must make himself insolvent by such gifts or conveyances, and to impeach them, fraud must be charged and proved.” And in the same case the court also said: “To impeach such a conveyance successfully, it lies upon the complainant to aver and prove that he was a creditor at the time, and that the grantor was then insolvent, or such facts and circumstances as would authorize a court or jury to presume insolvency, none of which have been established in this cáse.” This ease was followed and approved in Merrell v. Johnson, 96 Ill. 224; Bittinger v. Kasten, 111 Ill. 260; Faloon v. McIntyre, 118 Ill. 292; State Bank of Clinton v. Barnett, 250 Ill. 312. In the Bittinger case it was said: ‘ ‘ The owner of property may at any time give the same to anyone he chooses, so long as he thereby injures no then existing creditor, * * * and the mere fact that he may be indebted is not alone sufficient to make a gift or voluntary conveyance by him inoperative,” and it was held: “If the creditor failed to aver and prove insolvency of the debtor at the time the conveyance was made, he was entitled to no relief.” In passing upon the same question in Dimond v. Rogers, 203 Ill. 464, the court said: “In order to obtain relief it was necessary to prove a transfer which in fact or in law was fraudulent as to creditors, or in case of voluntary gift or conveyance to the husband, that the judgment debtor did not retain enough money or property to pay her debts.”

It will thus be seen that it was necessary to prove the insolvency at least of Robert Taylor at the time the bill of sale of the automobile was made to his daughter. From the proof appearing in this record it might well be said that on May 24, 1910, when the bill of sale was executed to appellee, that Robert Taylor had retained abundant means to pay all his indebtedness. If Eobert Taylor retained sufficient property within reach of his creditors to satisfy all his existing debts then he had a right to transfer the automobile to his daughter. Therefore, in the absence of proof of the insolvency of Eobert Taylor, the verdict in favor of the interpleader was the only verdict which could have been sustained upon the evidence, and it is unnecessary to consider the errors assigned upon the instructions.

The judgment is affirmed.

Affirmed.