author: Mr. Presidirg Justice Myers

text:
    The People, for use etc., Appellee, v. Frank B. Bowman et al., Appellants.
    1. Jurisdiction—when objection by one party available to all. If the jurisdiction, of the court is questioned by one defendant, such objection is available to all defendants notwithstanding they have not joined therein, if the cause of action is not susceptible of being severed.
    2. Jurisdiction—how question of, raised in chancery. The jurisdiction of the court to entertain a cause of action presented may be raised By answer or by plea.
    3. Jurisdiction—when equity without, to render decree against sureties. Equity has no jurisdiction to entertain a proceeding to compel an accounting with respect to a public official and to render a decree against his several sureties upon separate and distinct official bonds given during successive terms of office.
    4. Stjeetyship—extent of liability upon official bond. Sureties upon the bonds of a public official who has served several successive terms, giving separate and distinct bonds for each term, are only liable for the default occurring during the term or terms for which the particular bond or bonds were given.
    Bill in equity. Appeal from the Circuit Court of St. Clair county; the Hon. B. R. Bubboughs, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    B. H. Caret, C. E. Pope, D. E. Keefe, August Barthel, L. D. Turres and Wise, McNulty, & Keefe, for appellants.
    Wirkelmarr & Baeb, for appellee.
   Mr. Presidirg Justice Myers

delivered the opinion of the court.

For statement of this case we adopt, with some modifications, that made by appellants. A supervisor of commons in the village of Cahokia was authorized by an Act of the legislature in 1827, with duties and powers defined and enlarged by a number of subsequent acts. The statutes also provide for the election of trustees, whose duties respecting funds arising from the lease or sale of the commons’ property are likewise specified.

By the Act of 1841, the supervisor was authorized to survey and divide the commons into lots and lease the same and the proceeds, thus derived, were to be paid to the trustees and applied to the education of the children of the inhabitants of the village of Cahokia, and for no other purpose whatever. The provision which prohibited the appropriation of any part of the fund to any other than school purposes was repealed in part by an act, approved February 14, 1855. An act was passed in 1855 authorizing the sale and conveyance of lots in fee simple title.

By an act of the legislature approved March 24,1874, the supervisor was authorized to sell all the leasehold property when authorized so to do by a vote, and convey thereby the fee. The act provided for an election and an election was held on the 18th day of November, 1876, under the laws authorizing the supervisor to sell the commons of the village. Section seven of that act provided that the money arising from such sale shall be applied, after paying necessary expenses, to the same purpose that rents and profits derived from the leasing the commons have been hitherto applied under authority of law, but until otherwise provided by law only the interest shall thus be applied.

Section eight provides, that “the officer or officers authorized by law to lease the .commons * * * shall have the custody of all money derived from leasing or selling the same * * * and shall give bond * * * with sureties to be approved by the county judge * # * for the use of the inhabitants of such town or village and be conditioned for the faithful discharge of their duties, and accounting for and proper application of all money that may come into his or their hands.” Section nine: “Money derived from such sales may be converted into bonds of the United States, or State of Illinois, or other equally good securities or may be loaned on notes secured by mortgage on real estate worth at least double the sum loaned.” Under this act most of the property held in common has been sold by various supervisors and the money derived therefrom used, promiscuously, for the purposes authorized by the trustees of schools. The interest not being sufficient to maintain the schools, the principal fund was drawn upon and paid out upon the order of the trustees, from time to time, by the various supervisors until it was all exhausted.

In 1890, Antoine (called Anthony) Bordeaux was elected to the office of supervisor for the village of Cahokia, and after his election, entered into a bond in the sum of $50,000 with Clovis Soucy, Mary Soucy et al., as sureties. The term of his office was for the period of two years; and he was re-elected to this office for four successive terms, making a period of eight years. During this period, the evidence tends to show that some of the lands were sold, and moneys were collected, which were outstanding and due upon mortgages for fee simple lands. His successor in office was Camille Droit, and upon his election to office as supervisor, he filed a bill in equity in the Circuit Court of ‘St. Clair county, Illinois, against Antoine Bordeaux, Frank B. Bowman, Mary Soucy, et al. The bill represented that said Bordeaux had misappropriated the moneys coming to his hands, while supervisor, which belonged to the village, and prayed for an accounting and decree for the amount that was due. To this bill a demurrer was filed and overruled, after which an answer was filed on behalf of the defendants herein mentioned denying the allegations of the bill.

The evidence shows that from 1890 to 1892 Mary Soucy, one of the defendants here, was on Bordeaux’s bond as supervisor, and that from 1892 to 1894 Frank B. Bowman was on his bond, and that from 1896 to 1898, Edward Abend was on his bond. The evidence shows that for the eight years which he served as supervisor, he had four bonds, and each bond signed by different persons as sureties. The sureties upon the bonds were different each time a bond was given. During the time that Abend was surety on Bordeaux’s bond, he caused a citation to issue against Bordeaux from the County Court of St. Clair county, and as a result of this Bordeaux made a settlement with the trustees of the village in which it was found that he had in his hands moneys or securities, the sum of $3,174.21, and he was ordered by the court to execute a new bond. After the bill was filed, the matter was continued from term to term until the September term, 1907, when it was tried upon the bill, answers and replications, and a decree was entered by the court in favor of the complainants, • in which the court found different sums of money to be due from the respective bondsmen and ordered the same to be paid. The court adjudicated the rights of the parties and decreed that Mary Soucy, one of the sureties on the bond, should pay to the complainant the sum of $2,414.06 as principal, and the sum of $376.10 as interest, making a total of $3,290.16 with 5 per cent, interest thereon from the 3rd day of September, 1907; that the defendant, Frank B. Bowman, should pay to the complainant the sum of $753.89; that the executor of the estate of Edward Abend, should pay to the complainant the sum of $8,834.16, and directed that the several sureties upon the several bonds should pay the amounts of money in. said decree specified to the complainant. Exceptions were taken to the decree, and an appeal prayed for to the Appellate Court of the Fourth District by the solvent sureties.

There are at least two contentions made by appellants under which the decree in this case must be reversed and remanded. The jurisdiction of the Circuit Court was challenged by the answer of appellant, Frank B. Bowman, on the ground that the complainant had a plain, adequate and complete remedy at law in respect to any liability, if any, under the bond signed by bim as surety. This saves, for him, the question for consideration by this court, and inasmuch as he is joined in the bill and decree with the other appellants, in such manner that there may be no severance of parties and interest by decree in this court, this objection by one defendant, avails as to all. The bill seeks to bring into equity four entirely distinct and separate causes of a common law action, in which there is no. joint liability nor equitable connection between the parties defendant. Separate bonds with different sureties were given by Bordeaux, and in each case the complainant’s right of action, if any, was upon the bond against Bordeaux and his surety, for which there was a plain, adequate and complete remedy at law, and for this reason a court of equity should not entertain the hill when objection is made by plea or answer. This proposition is so well established and understood that citation of authority is unnecessary. The fact that there were five such causes of action, each based upon a separate official bond, with different sureties and relating to different terms of office, in nowise changes the forum to which the complainants should resort, and we find no decision to authorize a bill in equity to recover against sureties on an official bond, under facts similar to this case.

We do not think that several independent actions, such as we find here, may be combined in one proceeding and have several distinct and separate judgments embodied in one decree as done in this case. Appellant Mary Soucy was surety on the bond of Bordeaux for the term beginning March 4, 1890, and ending March 6,1892. Bordeaux was re-elected to the office of supervisor and qualified for the term beginning March 6, 1892, by giving bond with other and different sureties, so that the liability of Mary Sóucy, as surety, is limited to such default or misappropriation of funds by Bordeaux during his first term, that is, for only such default or misappropriation as occurred between March, 1890 and March, 1892. It is the contention which we find justified by. an examination of the abstract, that there is no evidence of any default or misappropriation of money by Bordeaux, during that time. There is evidence that he received from his predecessor $674 and from the sale of land $1740.06, a total of $2414.06, which with interest allowed by the court, amounts to $3290.16, the sum which the court decreed should be 'paid by Mary Soucy.

We find no authority in conflict with the proposition, that when one succeeds himself in office and gives a new bond which is approved, and entered upon his second term, the sureties upon his first bond are only liable for any default which occurred during the term for which that bond was given, and that fact must be proven. Appellee contends that having shown that money came into Bordeaux’s hands, it devolved upon the defendant surety to prove what became of it, no shortage or default appearing until a subsequent term for which the surety was not bound. Such is not the law as we understand it. If we are to deal in presumptions, it would be in favor of the surety to the extent that he is presumed not to be liable until liability is shown. According to authority no default will be presumed because a balance appears to have been in his hands at the end of his first term, the presumption being that the defaulting officer has such balance in hand when he entered upon his second term. Bruce v. United States, 17 Howard, 437.

As between the sureties on the bond for the first term and those on the bond for the second or succeeding term, the sureties on the second bond are prima facie liable for the shortage appearing during the second in funds with which the defaulting officer was chargeable at the beginning of his second term. Pine County v. Willard, 39 Minn. 125. The obligation to make good the defalcation of a public officer rests upon the sureties of the term in which the defalcation occurred. Potter et al. v. Board of Trustees, 11 Ill. App. 280; Bogardus v. The People, 52 Ill. App. 179; Trustees v. Arnold, 58 Ill. App. 103. In reply to this contention, appellee relies upon the case of Trustees of Schools v. Smith, 88 Ill. 181. It is observed that in the case cited, Smith, the township treasurer on whose bond the suit was brought, never gave but the one bond and never qualified for his second term by giving a new bond as required by the statute. The court says: “It is said that Smith became his own successor in office by virtue of his reappointment in March, 1872, and that the law presumes he paid over all the money and delivered all the property of which he was custodian, to himself, as successor at that time, the law requiring a township treasurer, at the expiration of his term of office, to pay and deliver over to Ms successor in office, all money on hand and all notes and securities for moneys, papers, etc. Smith after his reappointment never gave a new bond with securities for the faithful performance of duties of the office, the statute requiring that the township treasurer shall do so ‘before entering upon his duties.’ ”.At that time the term of town officers was for one year “and until others are elected or appointed in their places and are qualified,” and upon the proposition, that sureties may be held until a successor is elected and qualified, that is, during the term as extended by statute, the opinion in the Smith case supra has application, but under the facts and contentions of appellants in this case, it may not control. To hold otherwise would be to bring all the sureties on the several bonds under liability prima facie at least, for all defaults or misappropriation of funds without respect to the time when such default occurred. Such in our opinion is an undue enlargement of the obligation assumed by the sureties in this case. “A surety is only to be held by the precise terms of his undertaMng. His liability is strictissimi juris and cannot be extended by construction or enlargement by the act of others.” Orton v. City of Lincoln, 156 Ill. 499.

Without discussing other contentions made in argument, we deem it sufficient that we have carefully examined the abstracts and considered all that has been said and do not find other error or cross-error which alone would justify a reversal or modification of the decree. For the reasons indicated the decree of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mb. Pbesiding Justice Myebs

license: Public Domain

text:
    James S. Starnes, Administrator, Plaintiff in Error, v. Dering Coal Company, Defendant in Error.
    Appeals and errors—when no questions preserved for review. In an action for personal injuries where a peremptory instruction has been given for the defendant, held, that under the assignment of errors in this case, nothing is preserved for review where it did not appear from the record that a motion for a new trial was made or that an exception was preserved to the court’s ruling in allowing the motion for the peremptory instruction or to the rendering of judgment.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Franklin county; the Hon. Prince A. Pearce, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Webb & Webb, for plaintiff in error.
    Denison & Spiller, for defendant in error; W. H. Hart, of counsel.
   Mb. Pbesiding Justice Myebs

delivered the opinion of the court.

This was an action in case, brought by the plaintiff' in error against the defendant in error to recover damages for injuries, causing death of plaintiff’s husband. The declaration is in three counts, to which the defendant filed a plea of not guilty. The case was tried by jury, and at the. close of all the plaintiff’s evidence, a motion was made by the defendant to instruct the jury to find the defendant not guilty on each count of the declaration. This motion was allowed, the jury was instructed accordingly, and returned a verdict finding the defendant not guilty. Thereupon the court rendered judgment on the verdict, and plaintiff appealed, assigning as error the action of the trial court in instructing the jury to find the defendant not guilty and in rendering judgment on the verdict.

It does not appear from the record that a motion for new trial was made or that an exception was preserved to the court’s ruling in allowing the motion for the peremptory instruction, or to the rendering of judgment. In this condition of the record there is nothing before this court for review under the assignment of errors attached. Elliott v. Egyptian Power Co., 128 Ill. App. 159, and cases cited; Vogelsang v. Fredkyn, 133 Ill. App. 356; Derby v. Peterson, 128 Ill. App. 494.

The judgment of the Circuit Court will therefore be affirmed.

Affirmed.


author: Mb. Presiding Justice Myers

text:
    D. L. Gearner, Appellee, v. American Car & Foundry Company, Appellant.
    1. Master and servant—who are fellow-servants. Two servants of the same master habitually associated, who each had his understood part in a joint operation, are fellow-servants, and an injury to one of them resulting from the carelessness of the other in performing such joint work cannot be made the basis of a recovery against the master.
    2. Master and servant—when doctrine of assumed rislc applies. A servant cannot be heard to say that he did not know and appreciate the danger of a simple device the danger of which was obvious.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the- Hon. Charles T. Moore, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed with finding of facts.
    Opinion filed March 4, 1909.
    Wise, McNulty & Keeee, for appellant.
    J. M. Bandy, for appellee.
   Mb. Presiding Justice Myers

delivered the opinion of the court.

This is an action in case brought by appellee against appellant to recover damages for injuries sustained while in the employ of the appellant. The declaration is in one count, alleging that the defendant operated a manufacturing plant and had certain heavy iron moulding flasks used in the manufacture of car wheels; that, in the operation it was required to raise the said flasks from the ground by means of a bail, suspended from an air-hoist, and provided with an iron rod and hook at each end by which it could be fastened to lugs on the flask which was then raised by the air-hoist to the desired position; that when raised, and while suspended, it was the duty of plaintiff and a moulder, with whom he worked, to rap the mould or flask while suspended, in order to displace the sand with which it had been filled when used in moulding. It is further alleged that the defendant negligently permitted the said bail to become and remain defective in such manner that one of the hooks was liable to slip off the lug attached to the flask and cause it to fall; that plaintiff complained of the dangerous condition of the bail to his foreman (the moulder), that the foreman assured him there was no danger, and negligently ordered him to proceed with his work, and that while obeying the order the flask fell and he was injured. A plea of not guilty was filed and the case tried by a jury, which returned a verdict for the plaintiff, assessing damages at $300. A motion for a new trial was overruled, and the defendant appealed.

At the close of all the evidence, the defendant requested a peremptory instruction to find the defendant not guilty, which was refused, and an exception preserved. As we are of opinion that the trial court erred in not taking the case from the jury, it will not be necessary to consider other errors assigned and discussed in argument. It appears from the evidence, largely from the testimony of appellee himself, that he was employed by appellant as a moulder’s helper in making car wheels, that he was forty-one years old, with four months’ experience, and entirely familiar with the duties of his employment. The operation in which appellee was engaged, when injured, his part in the work to be done, and the machinery in nse, appears in evidence and is briefly described as follows: Two men are required in the operation—a moulder and a helper. Appellee was employed as a helper. The iron flask or receptacle in which the mould for the wheel is made, is cylindrical in form, four feet in diameter, 14 inches thick, and in two parts, the upper and lower part called cope and drag respectively. The mould for the wheel is made in two parts, one half in the cope and the other half in the drag. The moulder places the wheel pattern first in one and then in the other, while the helper puts in and tamps the sand about it; after which the pattern is withdrawn, the parts are fitted and clamped, making the flask, into which the molten iron is poured to make the wheel. When the iron has cooled and hardened, the helper removes the clamps, and by means of a bail and air-hoist the cope or upper part of the flask is raised a foot or two from the ground, leaving the wheel and most of the sand on the ground. To clean and remove the adhering sand from the flask, it is raised by the air-hoist about four feet, turned over and jarred by a hammer. The bail by which the flask is raised and suspended is composed of a cross-beam four feet long, with an iron rod at each end, terminating with a hook to be hooked over or around the knobs or trunnions on the flask when it is to be raised from the ground. Preparatory to this operation, it is the duty of the moulder to fasten the hook on one side and that of the helper to fasten it on the other. In substance, the appellee testifies, that in the morning of Nov. 21,1907, the day of the accident, he noticed that one of the bail-rods was twisted out of shape, and, as he feared, was likely to slip off the trunnion and allow the suspended flask to fall. He watched it with concern all day, or- until he was injured at 2:30 in the afternoon. He called the moulder’s attention to the defective rod and was told that it was all right. Of what occurred at the time of his injury the appellee testified: “After he (the moulder) had raised it (the flash) up and turned it over, I was standing out there watching, and he said, what are you standing out there for, why don’t you come over here and get to work. And I said, I am afraid. He said, that bail is all right and went up and hit it one rap with the hammer. * * * I went up and hit the flask two licks with the hammer and it slid off the hook on his side and swung to me and hit me, knocked me down and fell on my leg.”

Without considering the testimony of appelllant’s witnesses', by which appellee, who alone testifies in his own behalf, is contradicted, and wholly disregarding his own written- statement at variance with the facts as stated on the witness-stand, we are clearly of opinion that he has not proved a cause of action.

The fellow-servant doctrine, that when a servant is injured by the negligence of another servant, when they are co-operating with each other in a particular business in the ^ line of their employment, or their duties are such as to bring them into habitual association so that they may exercise a mutual influence upon each other, promotive of proper caution, and the master is guilty of no negligence in employing the servant causing the injury, the master is not liable, has been so often declared by the Supreme Court, and is so well understood by the profession,. that citation of authority is unneccessary. According to appellee’s testimony, he and VanEssler, the moulder, were fellow-servants within either branch of the definition as we find it in the Supreme Court opinions. They were co-operating together in a particular business in the line of their employment, and their duties were such as to bring them into habitual association, so as to exercise a mutual influence upon each other promotive of proper caution, and there is nothing in the evidence from which it can reasonably be said that the moulder was the foreman or superior over appellee in the work they were about. They each had their understood part in the joint operation, and their duties, in hooking the bail to the flask and beating out the sand, were precisely the same. The language of the moulder, “Why don’t you cpme over here and get to work” is not, in form, an order, nor may it under the circumstances be so interpreted. At most it was only a call or direction to appellee, by his fellow-servant, to attend to his regular duty of striking the flask with the hammer. Appellee’s answer and explanation of his standing back came after the supposed order, and immediately, without compulsion, by order or otherwise, he stepped forward in performance of his customary duty and struck the flask with the hammer. Whether appellee acted pursuant to an order by the moulder or not, he cannot recover because of contributory negligence or risk assumed. He knew the defect and fully appreciated the danger long before the accident occurred, if his testimony is credited. The rod and hook attached to the bail is so simple a device that appellee cannot be heard to say that he did not know or appreciate the danger in using it. M. V. G. Co. v. Nisbett, 205 Ill. 273; Kistner v. Am. Steel Foundry, 233 Ill. 35; Gunning System v. La Pointe, 212 Ill. 274. In this case, however, appellee does not declare or claim that he was ignorant of the defect, or that he did not appreciate the danger incurred by its use. On the contrary, he says he knew and complained of the defective rod in the morning and, thereafter, continued to work with it all day without promise of any one to repair, relying, not upon his own knowledge, but upon the assurance of his fellow-servant—foreman as he contends—whose means of knowing the defect and danger was no greater than his own. Under the evidence presented by the record the trial court should have given the peremptory instruction to find the defendant not guilty. The judgment will therefore be reversed without remanding the cause.

Reversed with finding of facts.

We find as facts, to be incorporated with the judgment, that appellant was not guilty of the negligence charged; that appellee and VanEssler, the moulder, were fellow-servants, that appellee was guilty of contributory negligence, and assumed the risk of danger from the alleged defective rod or appliance of which complaint is made.


author: Mr. Presiding Justice Myers

text:
    Mrs. P. A. Mohhard, Appellee, v. St. Louis, Iron Mountain & Southern Railway Company, Appellant.
    1. Appeals and ebrobs—when objection not considered. An objection made in the trial court will not be considered on review if not shown by the abstract.
    2. Verdict—when not disturbed. A verdict not manifestly. against the weight of the evidence will not be set aside on review in the absence of errors of.law.
    3. Measure op damages—for injury to real property. In an action for a permanent injury to real property by a permanent improvement legally erected, the measure of damages is the difference in the market value affected by such improvement.
    Trespass on the case. Appeal from the Circuit Court of Randolph county; the Hon. B. R. Burroughs, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    R. F. Sprigg, H. L. Browning and L. 0. Whitnel, for appellant.
    A. E. Crisler, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

This is a suit brought by appellee against appellant to recover damages alleged to have been sustained by reason of the building and maintenance by appellant of certain embankments and bridge, thereby causing the overflow-waters of Prairie Du Bocher Creek to flood appellee’s premises.

The declaration is in two counts, which are substantially the same in material allegations, and charges permanent injury to real estate and destruction of personal property by the wrongful act of the defendant. A plea of not guilty was filed, and a trial by jury resulted in a verdict for plaintiff. A motion for a new trial was made and overruled. Judgment was rendered on the verdict, from which the defendant appealed, and asks a reversal by this court upon errors duly assigned.

The appellee owned about two acres of land lying north of and adjoining the village of Prairie Du Bocher and separated from the village by Prairie Du Bocher Creek, the boundary line of the village at this place. From a point east of appellee’s premises the creek runs almost due west by and beyond her property, a distance of 400 feet, and then turns to the south and southwest through the village. Immediately north of appellee’s property is a bluff, extending about 100 feet west of her west line. From the west end of the bluff, a levee, known in this record as the Bessen levee, was built in 1892, running along the north side of the creek following the general course of the creek, and about 150 feet from it, to and beyond the appellant’s right of way and embankment. In 1906 appellant built a switch- from its main line east, crossing the Bessen levee and the creek, and extending along near the south bank of the creek, which is the south boundary of appellee’s property. The switch' embankment crosses the Bessen levee and creek a short distance from the southward turn of the creek as above mentioned. The embankment is solid throughout, without opening or sluice-ways, except a bridge at the creek. The natural slope of the ground from the north side of appellee’s property is to the southwest, and the overflow water from the creek above and in front of her property, in natural course, flowed across the land on which the switch embankment was built. It is in evidence that the creek channel is not sufficient for the water of an ordinary heavy rain fall, and that an overflow of the creek is likely to occur two or three times a year. With the bluff and Bessen levee on one side of the creek, and appellant’s embankment on the other, the bridge at the creek being the only outlet, it is apparent that the obstruction of overflow water from the creek was calculated to affect the enclosed property. The channel of the creek, though clear of obstructions, not being sufficient- to carry the water of an ordinary heavy rain, the natural and usual overflow was to be regarded by the appellant in constructing its embankment.

It is not in this case a question of negligence, but one of legal obligation to compensate for damages caused by a legally authorized permanent improvement, and within the constitutional inhibition that private property may not be taken or damaged without compensation. There is evidence, which if credited by the jury, justifies the verdict, and this must be held conclusive, unless there was prejudicial error appearing in the record brought here for review. Whether the injury complained of was due to an extraordinary and unprecedented flood, or was caused in whole or part by appellee’s levee around her lot, or by the Bessen levee north of the creek, were all questions of fact properly submitted to the jury, and we cannot say that the verdict is manifestly against the weight of the’evidence.

The objection that appellee was permitted to testify from a memorandum does not appear in the abstract of evidence, and is not, therefore, available in this court. The proper measure of damages to the real estate was the difference in market value as affected by the embankment. The action was for permanent injury by a permanent improvement, and, as already stated, it was a question of compensation for which the law allows in such cases. The rule applied by the trial court was proper and correct under the law applicable in this case. Besides it does not appear from the abstract that appellant objected to the evidence as to damages, its contention throughout being that its embankment was properly and rightfully constructed, for which there was no liability whatever. The given instructions complained of are not as clear and accurate as they should be, in the statement of legal principle intended, but when considered in connection with all the other instructions, we do not think the jury misunderstood or was misled to the prejudice of appellant. Appellant’s tendered instruction No. 9, was properly refused for, as already indicated, the question of negligence or ordinary care is not involved. The jury inspected the premises and heard the testimony of witnesses in estimate of damages, and there is nothing of record to justify this court in holding that the verdict is excessive. The judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    National Rolling Mill Company, Appellee, v. Max Rubenstein, Appellant.

      Coepoeations—what not “doing business in this state.” Held,that there was no evidence showing that the corporation in question in this case did “business in this state” contrary to the statute.

      Assumpsit. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    John J. Brenholt, for appellant.
    Levi Davis, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

Appellee brought suit against appellant in an action of assumpsit on the common counts to recover for two carloads of iron sold by appellee to appellant and delivered according to contract. The defendant filed a plea of general issue and one special plea, averring that plaintiff was a foreign corporation not authorized to transact business in the State of Illinois. The case was tried by the court without a jury. The court’s finding was in favor of the plaintiff for the sum of $2,053.47, upon which judgment was rendered and the defendant appealed.

It appears in evidence that appellant, of East St. Louis, Illinois, ordered of appellee (a corporation) of Vincennes, Indiana, two carloads of bar iron to be delivered to Morris & Lewis at Bock Island, Illinois, for which appellant agreed to pay $1.80 per hundred pounds. At the time of making the order it seems that appellee was indebted to appellant in the sum of about $3,000. Before the two cars of iron were shipped to Morris & Lewis, one Finkelstein, a creditor of appellant, brought suit in attachment, in the court at Vincennes, to recover a claimed indebtedness, and garnisheed the appellee. Appellant was duly notified of the garnishee proceedings but defaulted; whereupon judgment was rendered against appellee on answer for the balance due from appellee to appellant, which judgment appellee paid.

The iron was duly shipped and delivered by appellee to Morris So Lewis, according to agreement with appellant. It is contended that appellee’s indebtedness to appellant at the time of the order should be reckoned and regarded as a payment in advance for the iron purchased, and that appellee is not to be allowed for the sum paid on garnishee judgment in favor of Finkelstein. This contention cannot avail, for the simple reason, that no such arrangement was provided in the contract between appellant and appellee, and we find nothing in the evidence to suggest that such was the understanding of either of the parties to the contract. When served with garnishee summons, appellee had not filled the order or delivered the iron sold and, therefore, had no claim to offset Finkelstein’s claim in the garnishee proceedings. Appellee could not have answered truly that it was not then indebted to appellant, and payment of the judgment must therefore be regarded as conclusive of that contention here.

It is not shown by the evidence that appellee was “doing business in this state”- within the meaning of statutory restrictions, invoked by appellant in bar of the action. This controversy grows out of an Indiana transaction. The contract was made in Indiana and the iron was sold and delivered in that state. The delivery to the carrier in shipment was a delivery to Morris & Lewis according to the order made by appellant. There was no violation of Illinois law. Havens and Geddes Co. v. Diamond et al., 93 Ill. App. 557; Black-Clawson Co. v. Carlyle Paper Co., 133 Ill. App. 61. The trial court’s finding of the facts is fully justified by the evidence, and no substantial error being pointed out in argument, the judgment will be affirmed.

Affirmed.


author: Mr'. Presiding Justice Myers

text:
    The People of the State of Illinois, Defendant in Error, v. David F. Johnson, Plaintiff in Error.

      Assault—when conviction illegal. One charged with “assault with a deadly weapon with intent to inflict bodily injury” cannot legally be convicted of an assault and battery, as the two offenses are separate and distinct.
    Criminal prosecution for assault. Error to the County Court of Lawrence county; the Hon. John A. Lopp, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed.
    Opinion filed March 4, 1909.

      G-ee & Barnes, for plaintiff in error.
    T. H. Cunningham, for defendant in error.
   Mr'. Presiding Justice Myers

delivered the opinion of the court.

By indictment found and returned by a grand jury in Lawrence county, the plaintiff in error was charged with having made an “assault with a deadly weapon, with intent to inflict a bodily injury” upon the person of one Charles H. Pinkstaff, and thereafter, upon trial by jury in the County Court, to which the indictment was duly certified, he was found guilty of an “assault and battery.” A motion in arrest of judgment was made and overruled, and the plaintiff in error was then sentenced to pay a fine of fifty dollars and costs and to stand committed until the fine and costs were paid. The judgment should have been arrested and the defendant discharged, for the reason assigned in the motion and upon the record, that the verdict was not responsive to the charge in the indictment.

There is a clear and well defined leg’al distinction between an assault and an assault and battery. They are separate and distinct offenses under the law, so that an indictment„ for an assault (whatever the intent) will not authorize a verdict and judgment, that the accused is guilty of an assault and battery. The precise question was decided in Moore v. The People, 26 Ill. App. 137, wherein it was said: “An assault and an assault and battery are separate and distinct offenses under our statute. An assault with a deadly weapon with intent to inflict bodily injury may be committed either with or without an actual battery, and as we have seen no battery is alleged in the present indictment.” See also Hunt v. The People, 53 Ill. App. 111.

The opposing contention that plaintiff in error may not complain because the verdict was authorized by an instruction given at his instance, cannot avail here, for the reason, that no such instruction appears of record to which we are confined in the consideration of errors assigned. The legal effect of the verdict, accepted by the court, was to acquit the plaintiff in error of the offense charged in the indictment, and he ought therefore to have been discharged. Logg v. The People, 8 Ill. App. 99.

The judgment of the County Court will be reversed and the order entered in this court discharging plaintiff in error.

Reversed.


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    John Thomas, Appellee, v. John Armstrong Lime & Quarry Company, Appellant.
    1. Master and servant—when latter cannot recover where in-, jury results from use of dynamite. If a servant undertakes to use dynamite in a way known by him to be dangerous, he cannot recover of his master for an injury resulting, notwithstanding assurances of safety by his. foreman—the servant’s knowledge of the danger being equal to that of the foreman.
    2. Ordinary care—when question of exercise of, one of law. Ordinarily, it is a question of fact for thfe jury whether or not a plaintiff was in the exercise of ordinary care, or whether he was relieved of assumed risk, or excused in obeying an order-contrary to his own better knowledge and judgment, but where the evidence, facts and circumstances are such that all reasonable men will agree that he was guilty of negligence, the question becomes one of law.
    Action in case for personal injuries. "Appeal from the Circuit Court of Madison county; the Hon. Charles T. Moobe, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed with finding of facts.
    Opinion filed March 4, 1909.
    Wise, McNulty & Keefe and Lmisr K. Brokaw, for appellant.
    J. V. E. Marsh and E. 0. Haagen, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

This is an action in case brought by appellee against appellant to recover for personal injuries sustained by appellee while in the employ of appellant. The declaration consisted of three counts. In the first count it is alleged that the defendant negligently failed to provide the plaintiff with a safe tamping pole or rod to be used in loading dynamite. In the second count it is alleged that the plaintiff requested the defendant to furnish him with a wooden tamping pole for use in loading dynamite, which the defendant negligently refused to do, and negligently directed the plaintiff to use an iron pole or rod instead. In the third count it is alleged that plaintiff requested the defendant to furnish him with a wooden pole, which the defendant neglected and refused to do, and ordered the plaintiff to use a steel tamping pole in loading dynamite, promising that a suitable wooden pole would be provided for charges to be loaded thereafter. It is alleged in each of the counts that the plaintiff was in the exercise of due care for his own safety, that the iron rod was a dangerous tool for tamping dynamite, that it caused an explosion, and that by reason of the negligence alleged the plaintiff was injured.

A plea of not guilty was filed, the case was tried by a jury, which returned a verdict for the plaintiff for $8,500. A motion for a new trial was overruled, judgment on the verdict rendered, and the defendant appealed.

It appears from the evidence that plaintiff is a man forty-nine years old and, for thirty years, his chief occupation has been that of a quarryman, working in the stone quarries about Alton where dynamite has been used. He was familiar from experience with all kinds of work required in quarrying stone in that vicinity, and, especially, with the use of drill and dynamite as employed in appellant’s quarry at the time of the injury. He was employed by appellant for general service in the quarry, that is, to work in whatever capacity directed, his experience and qualifications being understood and recognized. At the time of injury, he was employed as the regular powder man in the quarry work, and it was his duty to load with dynamite the drilled holes in the rock, and to prime and discharge the blasts in this quarry. He had been working continuously at this job for more than a year, and, from the evidence, it may be said that he was an expert workman in that kind of work. On the day in question, he took a box of dynamite to the ledge of rock where blasting was to be done, and where a number of holes, about twelve feet deep, had been drilled and prepared for loading. The dynamite was in the forms of sticks, eight inches long and seven-eighths of an inch thick, covered by paper shells. To load and prepare a blast, the hole was half filled with dynamite sticks tamped with a pole. Above the dynamite, the hole was filled with clay. It was the duty of appellee to load the hole, prepare the blast, and thereafter discharge thó same by means of electrical connection and apparatus. On the day of his injury, the appellee loaded two" of the holes, using a steel or iron rod for tamping the dynamite sticks put in. Appellee testifies that while at work filling the third hole, he asked the foreman for a wooden pole for tamping, and was told to go ahead and load up with the steel rod, and that a wooden pole would be supplied for the next load. He further testifies, that the foreman assured him that he would get along all right using the steel rod, and when appellee expressed dissatisfaction, the foreman threatened to discharge him if he did not go ahead. He proceeded with his work, using the' steel rod, and shortly thereafter the dynamite was exploded, causing the injury complained of.

A peremptory instruction to find for the defendant was asked at the close of the evidence and refused by the court. After a careful review of the evidence and consideration of the argument of counsel, we are of opinion that the peremptory instruction should have been given, and that the appellee has no cause of action. Under the evidence of record, we do not think that appellee was in the exercise of due care for his own safety, or that he could reasonably rely upon the assurance of safety by his foreman, or, as a reasonably cautious man, that he should have obeyed the order of his foreman. From appellee’s own testimony, he must be held to have known and fully appreciated the fearful danger from use of the steel rod in tamping the dynamite. That he used it voluntarily in loading two holes before calling for a wooden pole, known by him to be the only proper implement, is proof of his reckless indifference to consequences. Familiar with the powerful explosive nature of dynamite, and the need of the highest degree of care in handling it, he could not, in the exercise of reasonable care for his own safety, take any chances whatever in using an implement, which, as he says in effect, he knew was liable to cause an explosion. Experienced as he was, with knowledge of the danger, equal, if not superior, to that of his foreman, it may not be argued that he anted as a reasonably careful man in risking life to save his position as an employe. Appellee testifies that only wooden poles should be used in tamping, and that it was against the law of the dynamite company to use any other. In the case of McCormick Machine Co. v. Zakzewski, 220 Ill. 522, the action was to recover for injuries sustained while the plaintiff, under an order of the defendant, was engaged in removing stacks of lumber alleged to be in a dangerous condition. It was claimed that the lumber was piled without the use of cross-pieces, which theretofore had been the custom, and that the failure to use cross-pieces rendered the stacks unsafe and caused them to fall. In discussing the question of assumed risk in that case the court says: “If there had been a departure from the customary method of constructing the stack, the appellee, relying on such customary method, and without notice of a change therefrom, had been injured, and if the method actually used was defective and contributes to the injury, then appellee would not have assumed the risk of the defect arising therefrom. Here, however, appellee knew of the departure from the customary method of constructing the stacks, and therefore necessarily did not rely upon such method.” It was held that appellee failed to establish that he did not know the defects in construction which rendered the- place at which he was ordered to work unsafe, or did not have equal oppurtunities, with appellant, of knowing them. It was therefore held, as matter of law, that appellee assumed the risk from the defects pointed out. With equal propriety it may be said of the appellee in this case, that the appellee knew of the departure from the customary method of tamping dynamite, and the customary implement used for that purpose, and therefore necessarily did not rely upon such method or such implement. A like conclusion follows, and we are constrained to hold as matter of law, that appellee assumed the risk arising from the use of the steel rod in tamping dynamite. A case in point is found in' the 113 Mo. App. 597 (Whaley v. Coleman) from which we quote: ‘ ‘ The plaintiff, an experienced miner, was injured on August 5, 1902, by the premature explosion of a stick of giant powder, which the plaintiff’s assistant, under his direction, was pushing into a drilled hole, using for the purpose the shank of a steel drill. It is shown that the holes after being drilled were usually filled with the explosive late on each day and exploded before the next shift of miners began work.” It was alleged that plaintiff complained to the defendant’s foreman and requested to be furnished with a gas pipe, a less dangerous implement for pounding the powder into the holes and was told, “All right, go ahead and use the steel; it will be all right, but don’t punch the powder.” The court says: “But he seeks to avoid the responsibility of using the instrument on the ground that he had called the attention of the defendant’s foreman to the matter and that he continued to use it under a promise that he would be furnished one safer and more suitable for the work. The general rule in such cases is that, if the servant continues his employment he is not precluded from recovering for injuries sustained by reason of the negligence of the master if the risk is not of such a character that a reasonably prudent person would not continue in the service. * * * But there are exceptions to all general rules; where there is no conflict but the evidence is all one way, and there can be but one conclusion, the matter becomes a question of law for the court. The use of the steel drill by the plaintiff was an act of the grossest negligence. It is a matter of common experience that where steel and flint are forcibly brought in contact, the result will be sparks o'f fire, and that fire coming in contact with powder produces an explosion. And no one knew such to be the case better than the plaintiff. He was not authorized by anything that was said by the foreman to use the drill, because he was equally as well informed of the danger as the foreman. On the face of things, the risk was so glaring, and at all times impending to such a degree, that no person of ordinary prudence could for a moment have believed that the drill could be used by the exercise of ordinary care with safety. A servant is not bound to obey the master when he has reason to anticipate that danger in the service is always impending and that he is liable to suffer injury at any moment, which the greatest, care and caution on his part will scarcely avert.” And such we think is the rule applicable under the decisions of this state, to the evidence in the case at bar.

“The rule which exempts an employe from assuming the risk where a promise to repair is made is designed for the benefit of those engaged in work where machinery and materials are used of which the employe has little knowledge, bnt it does not apply to ordinary labor which only requires the use of implements with which the employe is entirely familiar.” Webster Mfg. Co. v. Nisbett, 205 Ill. 273. “Where, from the construction of 'the appliance and the familiarity of the servant with its use, there is no reason to presume the master knows or could have known more of the dangers arising from its use than the servant, the rule that the servant is not exempt from the assumption of the risk does not apply, even though the master has notice of the defect and has promised to repair.”" Consolidated Barbed Wire Co. v. Maxwell, 116 Ill. App. 196.

Ordinarily, it is a question of fact for the jury, whether or not a plaintiff was in the exercise of ordinary care, or whether he was relieved of assumed risk, or excused in obeying an order contrary to his own better knowledge and judgment, but where the evidence, facts and circumstances are such that all reasonable men will agree that he was guilty of negligence, the question becomes one of law. Serious and distressing as are the appellee’s injuries,” we are compelled to hold under the prevailing law, that he has' no cause of action against appellant, and that the judgment must be reversed without remanding the cause.

Reversed with finding of facts.

We find as facts, to be incorporated in the judgment, that the appellee was guilty of contributory negligence and that the injuries sustained were within the risk assumed by him.


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    James E. Moore et al., Appellants, v. Dering Coal Company, Appellee.
    Mines and Miners Act—extent of application. By the express terms of this act it is limited in its application to “coal mines” and persons employed therein, and it does not apply to a mine or to a shaft 'of a mine in course of construction or to the persons employed in the preliminary work of construction.
    Action in case. Appeal from the Circuit Court of Franklin county; the Hon. J. R Creighton, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Hickman, Moore & Layman, for appellants.
    Denison & Spilleb, for appellee; W. H. Hart, of counsel.
   Mb. Pbesiding Justice Myebs

delivered the opinion of the court.

This is an action in case brought by appellants against appellee to recover for injury to their means of support, caused by the death of their son Charles E. Moore, while working for appellee in sinking an air shaft preparatory to opening up a coal mine.

The appellee owned and operated a coal mine near ■West Frankfort, Ilinois, known as No.'ll. At the time of the accident involved in this case, it was engaged in opening up another mine, known as No. 18, about two miles from No. 11. The main shaft of the new mine had been completed down to and through the vein of coal, and appellant had hoisted therefrom in buckets or tubs the coal removed in passing through the vein in the main- shaft, but no cages or permanent machinery had been installed and no coal removed for commercial purposes. The air-shaft at the new mine was also in course of construction, but had not been excavated down to the vein of coal. At the air-shaft a temporary engine was installed and being used for the hoisting of rock blasted out by the men engaged in the sinking of the air-shaft. The engine and machinery at the air-shaft were in no way connected with the engine and machinery at the main shaft. The machinery in use was for construction purposes only and no part of the operating equipment for the mine when completed. The deceased was employed at blasting rock in the construction of the air-shaft, and while going down in the bucket or tub used for hoisting rock, the cable slipped off the drum, which was not provided with flanges, and allowed the bucket to drop a distance of fifteen or twenty feet, causing deceased to lose his hold and fall to the bottom of the shaft.

The declaration is in one count, and charges appellee with wilful violation of the statute in not providing the drum'used by the hoisting engine at the air-shaft with flanges as required by clause (c) Section 4, Chapter 93, Revised Statutes. Appellee pleaded not guilty, the case was tried by a jury, which returned a general verdict in favor of plaintiff for $3,000, with special findings on interrogatories submitted as follows :

“1. Was the opening in the ground at which the engine in question in this ease was being used at the time Charles Moore was killed, being used for the hoisting or lowering of men and material in connection with the mining of coal? No.

2. Was the opening in the ground at which the engine in question in this case was being used at the time Charles Moore was killed, being used at the time for ventilating any coal mine of the defendant? No,

3. Was the opening in the ground at which the engine in question in this case was being used at the time Charles Moore was killed, being used at the time for an escapement shaft from any coal mine of defendant? No.

4. Was the opening in the ground, at which the engine in question in this case was being used, at the time Charles Moore was killed, at place where the deceased and others were constructing a shaft which when completed, was to he equipped and used as a shaft for the purpose of an escapement or ventilation for hoisting and lowering of men and materials in connection with the mining of coal? Yes.”

The defendant filed a motion for judgment in its favor upon the special findings, which was allowed and judgment rendered accordingly, from which the plaintiff appealed.

The only question which we deem necessary to consider is made by appellant’s fifth assignment, wherein is challenged the action of the court in rendering judgment for appellee upon the special findings of the jury. The special findings are in accord with the undisputed evidence in the record and therefore it only remains to determine, as a matter of law, whether the statute invoked is applicable in this case.

The scope and purpose of the Mines and Miners Act is in the enacting clause, which is “to revise the laws in relation to coal mines and subjects relating thereto and providing for the health and safety of persons employed therein.” By plain and express terms the statute is limited in its application to “coal mines” and persons employed therein. A “coal mine” as defined by the statute “is intended to signify any and all parts of the property of a mining plant on the surface or underground, which contributes directly or indirectly, under one management, to the mining or handling of coal.” (Section 34).. A “shaft is a necessary part of a coal mine” and this, by statutory definition, is a “vertical opening through the strata which is or may be used for the purposes of ventilation or escapement, or for the hoisting or lowering of men and materials in connection with the mining of coal.” We do not think the work and construction in progress at the time of the accident in this case had reached that stage that it could be called a coal mine within the meaning of the statute, for though the main shaft was substantially finished, it did not then contribute directly or indirectly to the mining or handling of coal, nor could it be so applied or used without further essential equipment not yet installed. And the opening in which deceased was employed was not a “shaft” according to the statutory definition, for it was not and could not be used “for the purpose of ventilation or escapement ■* * * in connection with the mining of coal.” It is true that the purpose of appellant was to construct and develop a coal mine, and that the opening where deceased was at work was intended as ail air-shaft for use in connection with such proposed mine when completed, but we find nothing in the statute from which it can reasonably be said that the legislature intended to provide for the safety of persons employed in this preliminary or construction work. In all its provisions for the security and protection of employes, the law seems to contemplate only those engaged about the operation of mining coal, and no where does it appear that those employed to prospect, open up and construct a coal mine, were within the legislative intent. As was said in Springfield Coal Co. v. Grogan, 53 Ill. App. 60, where a like question was under consideration, and the statute was construed: “Courts may expound statutes, but have no power to enact them, nor to extend such as are enacted to cases which might seem in good reason ought to be, but are not, included within them. ’ In the case of Cox v. Mount Olive and Staunton Coal Company, 127 Ill. App. 24, decided by this court, the declaration alleged that plaintiff was injured in digging a hole in the ground which, when completed, it was the purpose to equip and use as a “shaft” for .a coal mine, and we then said, “that it is quite clear that it (the hole) was not a shaft in use for ventilation or for ‘escapement’ or for the hoisting of or lowering of men and materials ‘in connectio'n with the mining of coal’ ” and cited with approval Springfield Coal Mining Co. v. Grogan, supra. The case of Spring Valley Coal Co. v. Greig, 226 Ill. 511, cited by appellant, has no application to the question in this case, for the reason, that the court considered and construed section 34 of the statute as applied to a coal mine entirely completed, fully equipped, and in actual mining operation—-circumstances not denied or in any way brought in question. This action is based upon and alleges a wilful violation of a statute which, as above indicated, has no application under the established facts in the case. It follows therefore that the judgment of the Circuit Court must be affirmed.

Affirmed.


author: Me. Presiding Justice Myebs

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    William P. Launtz, Appellant, v. E. P. Brown et al., Appellees.
    Appeals and unmans—harmony of verdict and judgment. Where a verdict is not responsive to the issues and the judgment is not predicated upon the verdict, the cause will he reversed and remanded.
    Attachment. Appeal from the City Court of Bast St. Louis; the Hon. W. J. N. Moyebs, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    William P. Launtz, pro se.

    Wise, McNulty & Keefe, for appellees.
   Me. Presiding Justice Myebs

In this case, appellant brought suit in attachment against appellee Brown, to recover a sum for rent claimed to be due, and levied upon certain personal property covered by two chattel mortgages held by appellee Piroved. Firoved filed an interpleader, claiming first lien upon the property attached by virtue of the chattel mortgages. Issues were joined and the case tried by jury, which returned the following verdict: “We the jury find the issues on the attachment in favor of the defendant Firoved,” and the court entered the following judgment: “It is therefore considered and adjudged by the court, that the attachment in this case be dissolved, judgment is rendered in favor of plaintiff and against the defendant for the sum of $162.15.” This is not in conformity with the issues joined and to be tried. The judgment does not conform to the verdict, and neither verdict nor judgment can be held to have determined the rights of all the parties to this action. For these reasons the judgment must be reversed and the cause remanded. Barbour et al. v. White et al., 37 Ill. 164; Dow v. Battle, 12 Ill. 373; Mattson et al. v. Harnisch, 5 Ill. App. 102; Hackett v. Jones, 34 Ill. App. 562. By the pleadings, statement of counsel and argument, two issues were submitted to the jury, one by traverse of appellant’s affidavit for attachment, and the other by traverse of appellee Firoved’s interpleader. The verdict is not responsive to either issue, and the judgment does not even purport to be on the verdict returned. It is therefore ineffectual as a conclusive determination of the rights of the parties and the matters in controversy. This much appears of record, and notwithstanding the failure of appellant to properly abstract the record and present the matter to this court, justice requires that the judgment be reversed. Numerous questions of law and fact are discussed by appellee in elaborate argument, which for want of sufficient abstract, and for the reason that it is unnecessary, we will not further consider.

Reversed cmd remanded.


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    Martha Schnitzmeyer, Appellee, v. Illinois Central Railroad Company, Appellant.
    Common cabbiers—when obligations those of warehousemen. As to the baggage of a passengSr the liability of a carrier ceases and that of a warehouseman begins after the lapse of a reasonable time following the transfer of the baggage from the train to the station.
    Action in case. Appeal from the Circuit Court of Marion county; the Hon. Aebbrt M. Rose, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed with finding of facts.
    Opinion filed March 4, 1909.
    R. J. Goddard and Kagy & Vandervort, for appellant; W. T. Abbott, of counsel.
    Frank F. Noleman, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

This action was brought by appellee against the ap_ pellant to recover for the loss of wearing apparel and jewelry stolen from her trunk while it was in the station house of appellant at Hoyleton. The declaration is in one count, to which the defendant pleaded the general issue. The case was tried by a jury, which returned a verdict in favor of the plaintiff for $106.75. From a judgment on the verdict, the defendant appealed.

At the close of the evidence the defendant requested the court to instruct the jury to find the defendant not guilty, which was refused. In this we think the court erred, for we are of opinion from the undisputed evidence, that appellee has no cause of action against the appellant.

It appears that in the evening of November 19, 1906, appellee bought a ticket and checked her trunk from Centralia to Hoyleton, distant ten miles, over appellant’s railroad. She arrived at Hoyleton between five and six o’clock in the evening, where she was met by friends, and went to the country to stay over night, expecting to go on to St. Louis the following day. The trunk was put off on the platform, and after the train left, taken by the agent into the station, which, later, was closed, locked, and left for the night. During the night burglars broke into the station, broke open the trunk, stole and carried away a portion of the contents for which this suit is brought.

That it is the duty of a carrier of passengers, and was the duty of the appellant in this case, to safely carry the baggage of the passengers to its destination, and there deliver it, when called for, within a reasonable time after its arrival, is a proposition of law not in dispute. But it is also the law, that the carrier may not be held to this strict liability, as an insurer, after the baggage has reached the delivery station, beyond a reasonable time for the owner or passenger to apply for and receive it. “The reasonable time, within which the owner must apply for his baggage, when it is transported by the same train on which he himself travels is directly after its arrival and transfer to the platform, making due allowance for the confusion occasioned by the arrival and departure of the train, and for the delay necessarily caused by the crowd upon the platform.” Chicago and Alton R. R. Co. v. Addizoat, 17 Ill. App. 632, and cases there cited. Within the foregoing rule, which we think applicable to the facts in this case, it cannot be claimed that appellant was liable as a carrier for the loss of appellee’s goods. She left her trunk on the platform at a small day station, without any intention to call for it until the next day, and did not even claim it or make known her intention to leave it at the station. The appellant, as was its duty under the circumstances, put the unclaimed baggage in the baggage room, the proper place for it, fastened and locked the doors and windows and thereafter appellant’s liability, if any, was that of warehouseman only. In that capacity the appellant was bound to use no more than ordinary care to prevent the baggage from being stolen, lost or damaged, and inasmuch as it appears from the undisputed evidence that the doors were locked and the windows fastened in such manner as to be reasonably secure, considering the location, surroundings and exposure, the appellant cannot be held to liability as warehouseman.

The judgment will be reversed with the finding that the appellant was not guilty of the negligence charged in the declaration.

Reversed with finding of facts.


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    Tony O’Farrell, Appellee, v. C. A. Ambrosius et al., Appellants.
    Appeals and errors—when motion to redoeket cannot he entertained. After the lapse of two years from the final order of reversal neither party can proceed to have a cause redocketed.
    Action on the case for libel. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    R. Guy Kheedler and B. H. Cauby, for appellants.
    Laxe & Cooper, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

In March, 1904, appellee recovered a judgment in the ¿Circuit Court against appellants in an action on the case for libel. From this judgment appellants appealed to this court where, on March 17, 1905, the judgment was reversed and the cause remanded. No remanding order was ever filed in the trial court, and on December 12, 1907, more than two years after the Appellate Court judgment, the appellants filed their written motion in the Circuit Court to have the said cause redocketed, the suit dismissed, and for a judgment against appellee for the costs incurred by the appellants in the Circuit Court. A certified copy of the Appellate Court order reversing and remanding the cause on former appeal was attached to and made a part of the motion. On hearing by the court, appellants in support of their motion offered in evidence a fee bill of the appellants ’ costs in said cause, properly itemized, which amounted to $375.30. The court denied the motion, the appellants excepted and prosecute this appeal to reverse that judgment.

The statute provides that, “If neither party shall file such transcript within two years from the time of making the final order of the Supreme Court or Appellate Court, as the case may be, reversing any judgment or proceeding, the cause shall be considered as abandoned, and no further action shall be had therein.” Section 84, Chapter 110, Hurd’s Statutes. In this case the transcript was not filed by either party within two years and the question is whether, under the statute, the cause is to be considered as abandoned by both parties, and whether any further action by either may be had therein. This statute has been construed as a time limitation, within which further proceedings may be had in a cause reversed and remanded by the Appellate Court, and inasmuch as either party may institute such further proceedings by filing a remanding order in the trial court, we think the statute applies and is a limitation affecting both parties, the appellant as well as appellee. The language that “no further action can be had therein.” seems clearly to bar the motion—the “action” in this case. The manifest purpose of the statute and0 the absence of an express provision limiting its application to the plaintiff in the cause, clearly justifies this conclusion. Any other construction would be contrary to the plainly expressed legislative intent. Heath v. Jones, 12 Ill. App. 493; Austin v. Defour, 110 Ill. 85. The judgment of the Circuit Court will be affirmed.

Affirmed*


author: Mb. Presiding Justice Myebs

text:
    Joseph A. Combs, Appellant, v. Baltimore & Ohio Southwestern Railroad Company, Appellee.
    1. Instructions—approved form as to proximate cause. An instruction upon this subject as follows, approved:
    “It is not sufficient to entitle the plaintiff to recover in this case, to show a negligent breach of duty on the part of the defendant, but it devolves upon the plaintiff to show further, that such breach of duty was the proximate or immediate or real cause of the injury to the plaintiff’s property; that in no case can a recovery be had for a negligent breach of duty, unless the evidence shows that such negligent breach of duty was the proximate or immediate cause of the injury occurring.”
    2. Instructions—when estoppel to complain arises. A party cannot complain of an instruction identical in language with one which has been given at his own instance.
    Action in case. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Movers, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Hadley & Wheeler, for appellant.
    Kramer, Kbameb & Campbell, for appellee.
   Mb. Presiding Justice Myebs

delivered the opinion of the court.

This is an action in case by appellant against appellee to recover the value of a team of horses, harness and wagon destroyed by appellee’s train at a highway crossing. The first count of the amended declaration, upon which appellant relies in argument here, alleges, that the defendant, a railroad corporation, owned and operated a railroad running through the village of Caseyville, and across a public street or highway in said village; that the plaintiff owned a team of horses and wagon which had been loaned to one Frank Casey; that while Casey was driving the team upon the street and across the railroad, the defendant negligently ran a train at a high rate of speed over said crossing, striking the team, killing the horses and destroying the wagon and harness. The defendant pleaded not guilty. The cause was tried by a jury, which returned a verdict for the defendant, upon which judgment was rendered, and plaintiff appealed.

It appears from the evidence that Long street, in the village of Caseyville, runs north and south and the railroad east and west. Appellant had loaned his team to Frank Casey, who, at the time of this accident, was in the wagon driving rapidly north on Long street toward the railroad crossing. He was standing up in the wagon driving the horses in a run. Witnesses who heard the train approaching, endeavored by shouting and signals to warn Casey before he reached the railroad, but not regarding the warning, and seemingly oblivious to the danger, he drove upon the crossing immediately in front of the train, which was running at the rate of sixty or sixty-five miles an hour. There was no sufficient obstruction to prevent Casey from seeing the approaching train,in time to avert the accident, had he been on the look-out.

Whether the appellant was guilty of actionable negligence in running its train at a high and dangerous speed, as charged in the declaration, was, under the evidence in this case, a question of fact for the jury, and their verdict must be held conclusive and must stand unless there is prejudicial error in the record to justify a reversal of the judgment.

Appellant complains of appellee’s third given instruction, which reads:

“It is not sufficient to entitle the plaintiff to recover in this case, to show a negligent breach of duty on the part of the defendant, but it devolves upon the plaintiff to show further, that such breach of duty was the proximate or immediate or real cause of the injury to the plaintiff’s property; that in no case can a recovery be had for a negligent breach of duty, unless the evidence shows that such negligent breach of duty was the proximate or immediate cause of the injury occurring. ’ ’

This we think was a correct statement of the law and applicable in this case, bnt were it otherwise, appellant may not complain for at his instance the court instructed the jury, in language almost identical, that if the negligence proved “was the proximate or immediate or real cause of the accident, then the mere fact that Casey may also have been negligent in driving upon the railroad tracks of the defendant, will not relieve the defendant of liability. ’ ’ Hefner v. Herron, 165 Ill. 242; Kirk & Co. v. Jajko, 224 Ill. 338. We find no harmful error in any other instructions upon the proposition of law, advanced by appellant, that appellee would not be relieved of liability by the contributory negligence of Casey, the driver of the team. That proposition is contested in argument here, but inasmuch as the judgment of the Circuit- Court may be affirmed without a decision of the question thus raised, we do not deem it necessary to consider the argument and contentions regarding it, and we, therefore, expressly withhold any opinion as to the correctness of appellee’s contention and the trial court’s holding upon that proposition. The appellant had a fair trial upon the theory adopted, and the verdict of the jury was within the evidence submitted. The judgment will be affirmed.

'Affirmed.


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    M. J. Crowe et al., Administrators, Appellants, v. Charles Morrison, Executor, Appellee.
    1. Administration of estates—authorization of expenditures. An administrator to protect himself and preclude the questioning of his expenditures, should obtain the authority of the court of probate authorizing the institution and conduct of litigation.
    2. Appeals and errors—what does not affect right to review order approving administrator’s final report. No exception to the final judgment approving an administrator’s final report is essential to the right to review the same, nor is it required that written objection be interposed to such report to preserve the right of review.
    Objections to administrator’s report. Appeal from the Circuit Court of Monroe county; the Hon. Chables T. Moose, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Bickert, Winkelmann & Ogle, for appellants.
    L. D. Turner and Louis Klingel, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court respecting the final report and accounting of appellants as administrators of the estate of T. J. Payne, deceased.

On May 9, 1907, the appellants, administrators, presented their final report in settlement of the estate to the County Court. Objections were made by appellee, executor of the estate of Margaret Burroughs, deceased, to certain items of credit specified by the exceptions filed. Upon hearing by the County Court, the exceptions were sustained in part and overruled in part, and appellants ordered to restate their account, “in form as prepared by the court,” which was done, and the order entered as follows: “It is further ordered that the final report filed May 9th, 1907, together with the Exhibit ‘A’, £B’, £C’ and £D’ attached thereto, be recorded and report as re-stated, filed May 31, 1907, be also recorded.” * * * “It is further ordered that said reports be and are considered to be final reports of all the acts and doings of said administrators in said estate, except as to the deed to be obtained upon the sheriff’s certificate of sale set out in Exhibit1B ’ herein. ’ ’

From this order appellants appealed to the Circuit Court, where, upon hearing, the court ordered a reduction in the allowances claimed for witness fees, attorney fees, and other expenses, and corrected a palpable mistake in a double charge of $246.85. The contested item, other than the double charge mentioned, pertains to litigation, which appellees insist, and the court found, was not authorized by the County Court, was not made in good faith for conserving the estate, and, whatever the motive, that unreasonable and unnecessary expense was incurred for which the allowance claimed should be reduced. We have read the evidence abstracted, fully considered the argument of counsel, and are not persuaded that the judgment should be reversed for want of evidence to support it.

For his own protection, and because it is usual and proper practice contemplated by the statute, the administrator should first submit to the Probate Court the propriety of unusual expense to be incurred in litigation, especially when, as it seems in this case, the outcome is doubtful. In that way his duty in the premises and the limit of expenditures may be defined in advance. His acts and expenses incurred, pursuant of a court order, may not be challenged on final accounting. If he chooses to act otherwise, relying upon his own judgment, he may not complain when it comes to final report, if the court should then find, as it would have found, on application for' advance authority, that the facts presented did not justify the litigation and expense proposed. Imprudently and unnecessarily he assumed the risk and personal responsibility for the expense, unless it was his purpose and intention to litigate at his own expense should the court refuse to allow his charge against the estate.

In the Circuit Court the appellants moved to dismiss the appeal from the County Court on the ground that no objection was made or exception taken to the final order of the County Court. In appeals from the Probate to the Circuit Court, it is not required that an exception to the order or judgment shall be preserved, as under the practice in the Appellate or Supreme Court, nor is it required by statute that written objections to the administrator’s report shall be filed. Appeals are allowed by the statute, to an aggrieved party, from any judgment, order or decree of the Probate or County Court, and such appeal may be had, though the party praying therefor is wholly in default in the hearing below. In this ease the appeal was from the order approving the final report of the administrators, and it brought before the Circuit Court all the items of charges and credits, which the report contained. The case was on hearing de novo, and precisely the same questions could be raised and determined as in the County Court. The appeal might have been limited, but was not, to particular items contested, in which case, other items, not questioned, would not be considered. Such in effect is the ruling of the court in Elder v. Whittemore, 51 Ill. App. 662, cited by appellants.

We are of opinion, that the Circuit Court did not err in refusing to dismiss the appeal, or in considering and determining the correctness of the claim of $246.85, though no formal written objections were filed. We find no ground within the assignment of errors or cross errors to justify a reversal of the judgment, and it will therefore be affirmed.

Affirmed.


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    William C. Rich, Sr., Appellant, v. William S. Lence, Appellee.
    1. Appeals and ebbobs—what assignments deemed waived. Objections to rulings relied upon but not pointed out are deemed waived.
    2. Appeals and ebbobs—what abstract should show. The abstract should show the making of the appropriate motions and the taking of the necessary objections in order that a review of the judgment complained of will be undertaken.
    3. Instbuctions—when erroneous, as to preponderance of evidence will not reverse. An instruction is erroneous which requires a clear preponderance, but such an instruction will not reverse where other instructions have been given which state the law correctly and no prejudice appears to have resulted.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Union county; the Hon. William N. Butlek, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    D. W. Karraker and H. F. Bussey, for- appellant.
    William D. Lyerle and Taylor Dodd, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

This suit was brought before a justice of the peace by the appellant against appellee to recover damages. for cutting and taking timber from land claimed by appellant. From a verdict and judgment in the justice court in favor of the plaintiff, the defendant appealed to the Circuit Court, when another trial by jury resulted in a verdict for the defendant. On motion made by plaintiff, the verdict was set aside and a new trial granted. The case was again tried by a jury, which returned a verdict in favor of the defendant, upon which judgment was rendered' and the plaintiff appealed.

It appears that appellant and appellee are adjoining landowners, and that the location of the line which separates them is in dispute, aggravated by conflicting surveys made by different, but apparently competent surveyors. The evidence is somewhat voluminous and throughout is more or less conflicting as to the location of the corners, lines and monuments adopted by one or other of the surveyors, in trying to establish the true line between the lands of the litigants.

The timber or trees for which the suit was brought, were taken from a strip of land intended for a private road, granted by appellee to another party. There is some evidence" that the Johnson survey, upon which appellee relies, was procured and made under verbal agreement or understanding between the parties herein, to have the division line, and their dispute settled in that way. Be that as it may, the disputed territory lies between two lines, one of which was established by the survey of W. M. Johnson, and the other by the survey of W. E. Townsend. Appellant insists that Townsend’s survey should control, and appellee is equally insistent that Johnson’s is the true line. The difference between them arises, not because of the superior professional qualifications of one surveyor over that of the other, but by reason of the uncertainty as to the location of formerly established or recognized corners, monuments or lines from which to make measurements and determine the true boundary line. That the evidence respecting these matters was conflicting is not denied, but we are asked to reverse the judgment- because the verdict was manifestly against the weight of the evidence. There is complaint of the "court’s ruling upon the admission of evidence, but as the error is not pointed out in argument, that objection is waived.

After carefully reading the evidence found in the abstract, we are unable to say that the jury’s finding is not sustained, or that it appears of record that the verdict is contrary to the clear preponderance of the evidence.

The only error presented and to be' considered is that which challenges the action of the court in giving appellee’s first instruction. We accede to appellant’s contention, that this instruction does not correctly state the law respecting the degree of proof required of the plaintiff in this action, and if this instruction stood alone, unqualified, and if it were not practically annulled by all other instructions given at the instance of both the appellant and the appellee, we would be inclined to hold that the court committed prejudicial error in giving it. This is not a case wherein a clear preponderance of the evidence is required of the plaintiff. It is sufficient that he has a mere preponderance, and this, the correct rule, we find clearly stated and repeated by a number of instructions given, and we are of opinion that the jury was not misled or influenced to the appellant’s prejudice by the erroneous instruction given. Nothing appears to indicate that the jury was moved by passion or prejudice, or that the verdict is not the result of a fair, impartial and conscientious consideration of the evidence submitted. Appellant had a fair trial of his case, two juries have found adversely to his claim, and we think the judgment should stand.

If for no other reason, the judgment would be affirmed because it is not shown by the abstract what objections were made by a motion for new trial, or that exceptions were preserved to the court’s action in overruling the motion for a new trial and in rendering judgment on the verdict. It has frequently been held that an objection or exception not appearing from the abstract to have been made and preserved in the lower court, may not be considered on appeal. Carey v. Walsh, 92 Ill. App. 89, and cases there cited. The judgment of the Circuit Court will be affirmed.

Affirmed.


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    Edmond S. Nevois, Appellee, v. St. Louis, Iron Mountain & Southern Railway Company, Appellant.
    1. Verdicts—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review in the absence of errors of law.
    2. Railroads—duty to construct culverts. The statutory duty of a railroad company in constructing its road-bed to provide culverts and sluices necessary for natural drainage is a continuing duty imposed by law upon the grantees or the lessees of the original builder, and prior notice and complaint of defective construction is not required as foundation for an action.
    3. Evidence—when use of memorandum will not reverse. Even though the court may have improperly permitted a witness to use a memorandum in testifying to questions of damage, a reversal will not be ordered where no prejudice appears to have resulted.
    Trespass on the case. Appeal from the Circuit Court of Randolph county; the Hon. B. R. Burroughs, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    R. E. Sprigg, H. L. Browning and L. 0. Whitnel, for appellant.
    A. E. Crisler, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

This suit was brought by appellee against appellant to recover damages alleged to have been sustained by him by reason of the construction and maintenance of a railroad embankment and bridge, without providing sufficient waterways to accommodate the overflow and natural drainage of Barbeau Creek, which is a small creek rising on top of the bluffs, and running along the northwest side of appellee’s land and under embankment through a railroad bridge known as No. 61. Pleadings consisted of declaration and general issue. Trial by jury resulted in verdict for appellee for $1204.95. Motion for new trial denied and judgment rendered on the verdict. Appellant thereupon excepted and appealed to this court.

Appellee owns 156 acres of land lying on the southeast side of Barbeau Creek. The railroad crosses this land at right angles with the creek. A thousand feet southeast of the bridge is a two-foot tile opening through the railroad embankment, for drainage purposes. The railroad embankment, bridge and tile were constructed and owned by the St. Louis Valley Railway in 1901, and in the spring of 1903, the railroad was sold to, and since that time has been operated by appellant, no change having been made in its construction, with the exception, that chat has been replaced under the ties where they sunk in the embankment. Barbeau Creek naturally flows southwest, out of a hollow in the bluffs, and along the upper or northwesterly side of appellee’s land, through the railroad bridge mentioned, and across the right of way of appellant, continuing southwest therefrom until it reaches its natural outlet in the Mississippi River.

The evidence tends to prove the allegations of the declaration and the damages allowed, and we cannot say that the verdict is manifestly against the weight of evidence, so that it only remains to determine whether or not there is error of record to justify a reversal of the judgment.

The complaint of appellant that appellee claimed and recovered damages for crops for the year 1904, which he did not own, is not borne out by the record. Appellee bought 54 acres of the 156-acre tract and went into possession thereof in March, 1904. He claims and .proves loss of corn and clover seed planted by him that season, but makes no claim, nor was he allowed, for the loss of 27 acres of wheat on the 54 acres, which belonged to, and was harvested by, a tenant of appellee’s grantor.

The fact that the embankment and trestle were built by the St. Louis Valley Railway, the grantor of appellant, will not avail as a defense, for the Supreme Court in Tetherington v. St. L. T. & E. R. R. Co., 226 Ill. 129, has declared, that the statutory duty of a railroad company in constructing its roadbed, to provide culverts and sluices necessary for natural drainage, is a continuing duty, imposed by law upon the grantees or lessees of the original builder, and that prior notice and complaint of defective construction is not required as foundation for an action. Complaint is made and argument elaborated, that appellee was permitted to testify from a memorandum or statement of the damages claimed, and that afterwards, over the objection of appellant, the court permitted the memorandum to go to the jury. We do not find in the abstract that any objection was interposed to the testimony so given, though appellee was fully examined and cross-examined respecting every detail set out in the memorandum and concerning which his independent recollection, judgment, and estimate as to the correctness of the several items was thoroughly sounded. It was no more than a tabulated statement of appellee’s testimony which was in no way contradicted by other evidence in the case. We are therefore of opinion that it was not harmful error to allow the memorandum in evidence. Appellant offered no evidence upon the question of damages, relying wholly upon the defense that there was no liability whatever.

The objection to appellee’s given instruction No. 1, is fully met by the Supreme Court in O, & M. Ry. Co. v. Thilhnan, 143 Ill. 127, wherein an instruction, identical in language, was approved. The damages allowed are undisputed in the evidence, and no theory is presented upon which the court may say that they are excessive in amount. The judgment must be affirmed.

Affirmed.


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    William Edgar Revis, Plaintiff in Error, v. Toledo, St. Louis & Western Railroad Company, Defendant in Error.
    1. Master and servant—when relation not established. Held, that the evidence in this case did not establish a contract of employment and that the relation of master and servant was not shown to have existed at the time of the injury complained of.
    2. Master and servant—when unlawful employment of minor does not authorize recovery. In order that an injury sustained by a minor claimed to have been unlawfully employed at extra-hazardous work may be the basis of a recovery it must appear that such Injury was occasioned by such unlawful employment.
    Action in case for personal injuries. Error to the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.

      C. H. Burton and Dan McG-lynn, for plaintiff in error.
    O. E. Pope, for defendant in error; Charles A. Schmettau, of counsel.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

This is an action in case to recover damages for injuries alleged to have been sustained by plaintiff in error, a minor under sixteen years of age, while in the employ of the defendant in error.

The amended declaration in two counts alleges, in substance, that on the 18th day of June, 1905, the defendant employed the plaintiff, then under sixteen years of age, as a call boy and messenger to work in and about its yards and a turn-table therein located, that the turn-table was dangerous to the life and limb of minors under sixteen years old, and that while in line of duty, standing on the turn-table, it was moved by other servants of the defendant, and caused the injury complained of. After a demurrer to the declaration was overruled by the court, the defendant filed a plea of not guilty. At the conclusion of the plaintiff’s evidence in a trial by a jury, the court, on motion of the defendant, instructed the jury to find the defendant not guilty. A motion for new trial was made and overruled and judgment rendered on the verdict, from which the plaintiff sued out a writ of error.

Under the evidence appearing of record we think the trial court did not err in taking the case from the jury by peremptory instruction. There was lack of evidence to prove at least two material allegations, without which, a verdict other than not guilty, could not be sustained. The first of these is the allegation that the plaintiff was employed by the defendant. The evidence produced in support of this proposition was to the effect that Noah Merriman, an employe of the defendant, hired or employed the plaintiff to assist him, Merriman, for one night, and while so employed and working, not for the defendant but for Merriman, he was injured. Merriman testifies that he got his fingers hurt that day and arranged with the plaintiff and his mother that plaintiff should go with him at night and assist in the duties for which Merriman was employed, which was to call the crews for outgoing trains, and to clean, fill and trim lamps at the round-houses where the engines were kept. Merriman reported to his foreman his arrangement with plaintiff and the foreman said, “All right, go ahead.” This does not show employment by bthe defendant. The plaintiff was em-° ployed and was to be paid by Merriman to work, not for the defendant but for Merriman. Such was the express agreement and understanding of all parties. Merriman was not authorized to employ plaintiff in the service of the defendant, nor did he report to the foreman that he had so employed him. The foreman’s assent to Merriman’s arrangement for temporary assistance cannot be held as an employment by the company. It was not so intended by the plaintiff, Merriman, or the foreman, and we think it would be unreasonable to say that the plaintiff was in the employ of the defendant.

The other material allegation which fails for want of proof is, that the plaintiff was injured while in the line of duty about the service for which he was employed. Though the turn-table is in the vicinity of the roundhouse, where plaintiff’s duties required him to be, there is nothing in the evidence to show that he had any business on or about the turn-table at the 'time of the accident. We understand it to be the law that the negligence, to be presumed from the employment of a minor within the prohibition of the statute, pertains only to consequences which result from such employment, and when seeking to hold the employer to liability for injuries sustained by the minor employe, it must be shown that he was injured by reason of such unlawful employment. American Car Co. v. Armentraut, 214 Ill. 509; Swift & Company v. Rennard, 119 Ill. App. 173.

The doctrine of what are known as the “turn-table cases” wherein it is held to be actionable negligence to leave exposed and unguarded dangerous machinery or contrivances, calculated to lure and injure children of tender age, has no application in this case, for that is not the charge made by this declaration. If the duties of the plaintiff required him to be upon or about the turn-table there would be force in the contention that he was in “extra hazardous employment,” and that his injury was the result of such employment. But there is no evidence here to warrant that inference and, however inviting or alluring or dangerous to children may have been the turn-table, the plaintiff’s yielding to the allurement and his injury in consequence, does not tend to prove that he was in the line of duty when injured.

It does not appear by bill of exceptions or certificate that all the evidence heard by the trial court is in the record before us, and for that reason alone the judgment should be affirmed according to well-established rule applied by this court in Ronan v. Swift & Company, 122 Ill. App. 256. In that ease, as in this, the judgment was rendered upon a verdict returned under a peremptory instruction, and the error relied upon was that the verdict was contrary to the evidence. The propriety of the court’s action in taking the case from the jury for want of evidence cannot be determined from a consideration of only a part of the evidence produced and heard in the trial below, but all the evidence must be shown by the record. Other! wise it will be presumed that the evidence omitted from the bill of exceptions justifies the verdict and judgment. For reasons indicated the judgment of the Circuit Court will be affirmed.

Affirmed.