text:
    Leo Singer, Appellee, v. W. D. Boyce Paper Hills Company, Appellant.
    Gen. No. 4,894.
    Contbibutoby negligence—when person injured by falling into elevator shaft guilty of. Held, under the evidence in this case, that the plaintiff, who was injured by falling into an elevator shaft, was guilty of contributory negligence which precluded his recovery.
    Action in case for personal injuries. Appeal from the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed March 11, 1908.
    H. L. Richolson and Frank M. Cox, for appellant.

      E. J. Kelly and Butters, Armstrong & Ferguson, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Appellee, Leo Singer, was injured while employed by appellant, Boyce Paper Mills Company. The building where he was hurt, sometimes called the “cement mill,” contained the machinery room, the beater room and the elevator shaft. The machinery room occupied the east end of the building. West of the machinery room, and connected with it by a large door, was the beater room, in which were tanks or vats. There were windows on the west side, opening upon a large uncovered platform. The elevator shaft, extending one or more stories above the first floor and into a pit sixteen feet below the floor of the beater room, projected from the south wall of the beater room, having an opening on each of its four sides about 3.8 feet wide by seven feet in height. That on the north side was the only opening on the south side of the beater room; that on the south side was over a railroad track that ran along the south side of the building. The east opening was upon a platform extending east along the south side of the building. The west opening was upon a platform, at the end of which was a plank runway thirty-three feet long that led to the ground. There were doors to these openings which were left open except when the weather was cold and were open at the period here in question. Gates were also provided that closed automatically when the elevator went up or down and opened automatically when it. was on a level with the floor of the beater room and the platform east and west of the shaft. There was what was called a dog house about twenty feet long by fifteen feet wide, adjoining the beater room on the south side of the west wall, with a door connecting the two rooms. There was' also a door on the south side of the dog house opening out on a small platform from which steps led to the ground. Across switch tracks, southwest of the cement mill and disconnected with it, was a pulp mill. Appellee, nineteen years of age, entered the employ of appellant on Monday morning, April 23, 1906, and worked Monday, Tuesday and Wednesday nights conveying material into the beater room. At about three o’clock, Thursday morning, he and Perry, a fellow workman went to the pulp mill for a drink of water, returning by different ways. Appellee, in coming back, went up the incline at the west end of the south platform, which was west of the elevator shaft. The elevator was up, the gates were tied up and planks were laid side by side from the west platform to the beater room on which to walk over the opening. Appellee did not notice these planks and fell into the shaft.

He, by his next friend, brought this suit in the Circuit Court of LaSalle county against appellant to recover damages resulting from injuries claimed to have been sustained by him from his fall into the elevator shaft. His declaration contained two counts averring in substance that appellant while the elevator was above the first story, and the building insufficiently lighted, negligently suffered the elevator shaft to be open and unguarded by gates, whereby plaintiff, then but nineteen years old, and without experience and knowledge concerning the construction of buildings, elevators and machinery, and while attempting to enter the building, in the exercise of due care, unavoidably stepped and fell into the elevator shaft and was thereby injured. Appellant interposed the plea of not guilty. There was a trial and verdict of $2,000 and a motion for a new trial by appellant. The court required a remittitur of $999. Appellee desired to remit $1,000 but on the objection of appellant, this was denied. He remitted $999. The motion for a new trial was overruled, judgment was entered on the verdict for $1,001 and this appeal was taken.

The apparent preponderance of the evidence is that about twelve o’clock, Wednesday night, Cooper, engineer of the beater room, finding that the elevator was stuck above, told appellee and Perry of the situation, and said that they would have to put boards across the elevator and get in the sulphite at which they were at work, just the same; that with the help of Erickson, a workman, he placed two two-inch planks eight or nine feet long and ten inches wide, side by side, across the opening, diagonally from the west opening of the elevator shaft to the floor of the beater room, then raised the gates; that from that time on until they went to the pulp mill for a drink, appellee and Perry continuously wheeled sulphite over these planks into the beater room. Appellee’s proof tends to show, however, that it was on Tuesday night that this occurred, and that he had not been at the elevator shaft since that, and was not at the shaft on the night he was injured at all until the accident.

The situation, then, is this: Appellee was nineteen years old, had been a student in the public schools of Ottawa, and had had some experiences with machinery, so that inexperience cannot be attributed to him. He knew that the elevator moved up and down; that it was not always level with the floor of the beater room and the platforms. He had wheeled sulphite over the opening when the elevator was not there. He knew that there were gates to guard' the entrance when the elevator was up or down below the level of the platforms, but he also knew that sometimes when the elevator was not there, the gates were fastened up and planks were put in on which to walk across the opening. He testified himself that the last time he passed through there or was near the elevator shaft prior to his injury, he knew the gates were fastened up, and that he wheeled material over the planks across the shaft into the beater room. He says, however, that this was the night before the accident, and his proof tends in a measure to corroborate his claim. Appellant’s proof strongly tends to show that it was the night of the accident and immediately preceding his being hurt. It is unnecessary to decide which is correct. In either event he walked into the elevator shaft with the gates and elevator up, when the last time he had been there he had walked through it on planks with them in. the same position. It is immaterial whether this was a few minutes before the accident or the night before. He could not rely upon the fact that the gates were up to show that the elevator was there. While there is some conflict in the evidence as to the amount of light in the building, it is clear from appellee’s own testimony that the light was sufficient for a person who looked to see the gates up and the planks across the shaft.

We are of the opinion that the evidence does not tend to establish appellee’s averments that he lacked age, experience and knowledge concerning the construction of the building, elevators and machinery, that the building was insufficiently lighted, that he was in the exercise of due care or that he unavoidably fell into the elevator shaft. As he had last seen and walked across the shaft in that condition, in not looking to see whether the planks were still there or whether the platform was there he was guilty of negligence that contributed to his injury. Appellee knew the unguarded hole was there, that the planks laid across it. He knew the extent and condition of the light.

The judgment is reversed.

Reversed.

Finding of facts, to be incorporated in the judgment:

We find that appellee at the time he was injured was not in the exercise of due care for his own safety and that the lack of such care contributed to the injury.


source: Caselaw Access Project

author: Mr. Presiding Justice Willis

license: Public Domain

text:
    John A. Wohlford, Plaintiff in Error, v. Jacob Burckhardt et al., Defendants in Error.
    Gen. No. 4,888.
    Parent and child—rule with respect to right to custody. The mere fact that other relatives or persons might give better care, and spend more time and money upon the child, is no reason for depriving the father of its custody. It is not a question of relative ability, but the sole question is, is the father able and will he give the child good care and treatment, and the court is only warranted in depriving a father of the custody of his child when the evidence discloses that the child, on his account, is destitute, abandoned or dependent, or that he is living an immoral life or in vicious or disreputable surroundings, or that he neglects or treats the child unkindly or cruelly, or may do this, or is wanting in good principles, or is illy adapted to the care of the child on account of defects in his mental or physical qualities, which prevent him from being a kind and affectionate father.
    Petition for habeas corpus. Error to the Circuit Court of Stephenson county; the Hon. Richard -S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 14, 1908.
    E. K. Welsh, for plaintiff in error.
    Douglas Pattison, for defendant in error.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

At the March term, 1907, of the Circuit Court of Stephenson county, a writ of habeas corpus was issued upon the petition of John A. Wohlford, plaintiff in error, for the custody of his infant child, Hazel Wohlford. The petition alleged that plaintiff in error was the father of the child and that she was restrained of her liberty by Jacob Burckhardt and Bertha Burckhardt, her maternal grandparents, defendants in error. Plaintiff in error was therein designated as the petitioner and defendants in error as respondents, but will hereinafter be called plaintiff and defendants. In the return to the writ the defendants admitted the child had been in their custody since about October 22, 1903, and averred they were the grandparents of said child, and that on or about October 22, 1903, plaintiff turned over said infant child to them under an agreement that they should care for and raise her; that the child weighed less than four pounds and was expected to die; that they had expended a great amount of care and attention upon her and provided her with the best of attention and a good home; that they were financially able to do so and would continue to do so if the child was left in their custody. The return further averred that the plaintiff had failed to provide for said child since its birth" and had never shown any affection for her, and that they believed plaintiff would not provide a good home for her and that he had not the means to give her the care and attention her tender years needed, and that the best interests of the child demanded that she continue to reside with defendants until she became older and more mature. Plaintiff’s traverse denied that he turned the child over to defendants under an agreement that they should care for and raise her, and averred that defendants came to him and said they wanted the child and that they would care for her and he could take her home any time, and denied that he had failed to provide for said child, and denied defendants’ averment that he had never shown her affection and that he would not provide a good home for her and that he had no means to give her the care and attention needed, and .denied that it would be for the best interests of the child to reside with defendants until she became older.

Evidence was heard upon the issues made by the traverse to the return, and an order was made denying the prayer of the petition and remanding the child to the custody of defendants, and judgment was entered on such order and that plaintiff pay the costs. To review such judgment this writ of error was sued out.

The evidence shows that plaintiff was married to Clara Burckhardt, daughter of defendants, February 10, 1903. Hazel, the child in controversy, was born September 26, 1903, and the mother died October 15, 1903. After her death plaintiff’s mother had the custody of the child for a time, during which period there was some discussion as to where she should be placed, and she was finally taken by defendants about October 22, 1903. In February, 1904, plaintiff went to Minnesota and remained there until December, 1906. Prior to going to Minnesota plaintiff visited the child frequently, and while in Minnesota wrote defendants a number of times inquiring about her. After his return, he visited the home of defendants every other Sunday up to a short period prior to the commencement of the proceedings, he insists, for the purpose of seeing his child; defendants claiming, however, that his visits were more on account of a sister of his deceased wife than the child. Whatever the motive for his visits, an estrangement grew between plaintiff and defendants’ family, and plaintiff demanded the custody of his infant daughter of defendant, Jacob Burckhardt. Burckhardt replied, “If you take her you got to pay me.” To which plaintiff answered: “If you will tell me what you want and you are reasonable, I will pay you.” Burckhardt then said, “That is not it. The law will have to make the costs and I will charge you every cent the law allows me and I will see the doctors too?” Plaintiff subsequently renewed the demand and was again refused the custody of the child, following which he instituted this proceeding.

The evidence also shows that plaintiff lives with his father and mother, and helps his father carry on his farm, for which he receives about the equivalent of $40 per month, and that he owns 120 acres of land in Minnesota worth about $40 per acre, which is mortgaged for $1,400, hearing interest at 5 per cent, per annum. Plaintiff’s family consists of Ms father, sixty-six years of age, and Ms mother, sixty-three years of age. He is tMrty-three. Defendants- are aged respectively sixty-one and fifty-three years and their family consists of two daughters, women grown, and two sons, one twenty-two and the other twenty years old. Defendant, Jacob Burckhardt, has 208 acres of land, encumbered for $2,000, a lot in town and one-half section of land in Minnesota. Both families are Germans and reside in a German community. The Burckhardts keep beer and wine in the house, and the male members, like plaintiff, occasionally frequent saloons. Some effort was made to show that plaintiff’s habits were such as to render him an unfit person to have the custody of Ms infant cMld.

Plaintiff’s father, mother, sister and three apparently disinterested witnesses testified that plaintiff’s habits were good, and that he was industrious and, in their opinion, a suitable person to have the custody and education of an infant child. Furthermore, while some of the witnesses for defendants testified that plaintiff sometimes frequented saloons and drank beer and occasionally played cards, none of them testified that in their opinion he was an unfit person to have the care of his infant child. It is apparent to us that plaintiff and his family and the defendants are equally fitted and financially able to have the care and custody of the infant in question, and that she would have as good a home with her father and his parents as she has with the defendants.

Section 4, chapter 64, of Hurd’s B. S. 1905, provides that “the parents of a minor, if living, and in case of' the death of either of the parents, the surviving parent, they being respectively competent to transact their own business, and fit persons, shall be entitled to the custody of the person of the minor and the direction of Ms education. ’ ’

In the case of Cormack v. Marshall, 211 Ill. 523, the Supreme Court says: “We regard the rights of the parent as superior to those of any other person, when that parent is a fit person to have the custody of children and is so circumstanced that he can provide the necessaries of life and administer the requirements of such a charge.” This rule is in accordance with a long line of decisions, and there can he no longer any doubt as to the law governing this class of cases.

Unless the evidence is clear that the parent of the child is unfit to care for it, the father should have the custody. The mere fact that other relatives or persons might give better care, and spend more time and money upon the child, is no reason for depriving the father of its custody. It is not a question of relative ability of the parents, but is the sole question of whether the father is able and will give the child good care and treatment. The court is only warranted in depriving the father of the custody of the child when the evidence discloses that the child, on his account, is destitute, abandoned or dependent, or that he is living an immoral life or in vicious or disreputable surroundings, or that he neglects or treats the child unkindly or cruelly, or may do" this, or is wanting in good principles, or is illy adapted to the care of the child on account of defects in his .mental or physical qualities, which prevent him from being a kind and affectionate father. The evidence in this case fails to establish any of these causes. No definite rule has been laid down as to what constitutes fitness in law that a parent must have to have the control of his child.

After a thorough examination of authorities, we think that unfitness is not to be found merely because the father may be in straitened circumstances, or may not be as discreet or judicious as could be. wished, nor because other persons of greater means or better social standing áre ready and willing to take the child and give it greater advantages. If such were the test, the father’s right would be reduced to a mere shadow, of the most unsubstantial character. But it must appear that the father had so conducted himself, or shown himself to be a person of snch description, or is placed in such a position, as to render it not merely better for the children, but essential to their safety or to their welfare, in some very serious and important respect, before his rights should be treated as lost or suspended, or should be superseded or interfered with.

Although it may be a hardship to deprive the defendants of the custody of the child after they have cared for it so long and so tenderly, yet it is our duty to follow the law, and there not being sufficient evidence in the record to show that the father should be deprived of the custody of the child, we therefore reverse the judgment and remand the cause.

Reversed and remanded.


author: Mr. Justice Dibell

text:
    Edward Losee, Appellee, v. Arthur Brunson, Appellant.
    Gen. No. 4,934.
    1. Contracts—lohat tends to show ambiguity in. The harsh or unreasonable results flowing from a particular construction of a contract should cause the court to search the contract diligently to see if it is capable of some more reasonable construction which the parties really intended.
    2. Contracts—quasi-partnership agreement construed. A particular contract set forth in haee verba in.the opinion, which was a contract of employment of a gttasi-partnership nature; is considered and construed.
    Bill in equity. Appeal from the Circuit Court of De Kalb county; the Hon. Charles A. Bishop, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 14, 1908.
    Carnes, Faissler & Cochran, for appellant.
    L. B. Olmstead, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Brunson, a clothing merchant, hired Losee, an experienced salesman in that line, to act as buyer and salesman, and they entered into a written contract, the body of which was as follows:

<£ Articles of Agreement entered into between Arthur Brunson, party of the first part and Edward Losee, party of the second part, this 25 day of January, 1904, Witnesses that the party of first part agrees to pay to the party of the second part the sum of $60 (sixty dollars) per month and one-half of the profits of the business less the salary, and the party of the second part agrees to do the buying and overseeing of the stock to the best of his ability.”

Losee began his service for Brunson under the contract on February 7, 1904, and continued thereunder and was paid $60 per month till December 31, 1904, when Brunson sold out his business and thus terminated the contract. On February 7,1905, Losee filed a bill in equity against Brunson for an accounting of the profits of the business, which the bill alleged Brunson had refused him, and for a decree for the payment of one-half of said profits to Losee. Brunson answered, denying the construction placed upon the contract by Losee, and asserting that the meaning of the contract was that Brunson and Losee should share equally in the profits, but that Brunson guaranteed .that Losee’s one-half thereof should not be less than $60 per month, and that in ascertaining’ the profits the $60 per month should not be regarded as an expense ; and defendant alleged that there were no profits and that the business was conducted at a loss. The answer was also made a cross-bill, in which Brunson alleged that by the oral contract between the parties, made before the written contract was drawn, Brunson was to contribute the entire capital and Losee his skill as a salesman and a buyer, and that Losee should receive one-half the profits, and that Brunson should guarantee that Losee’s one-half of the profits would not be less than $60 per month; that if said written contract bears the meaning attributed to it by the bill of complaint, then it does not express the actual agreement between the parties, and the cross-bill prayed for its reformation. The answer to the cross-bill asserted that the written contract had the meaning’ attributed to it by the original bill, and that it truly expressed the actual agreement between the parties. The cause went to a master, who took and reported the proofs with his conclusions and a statement of the account. His findings were favorable to Losee. Exceptions to the report were overruled, and Losee had a decree for $258.88 and costs, from which Brunson prosecutes this appeal.

We conclude that one who reads the written contract without a knowledge of the negotiations which preceded it would naturally understand by it that Brunson agreed to pay Losee a salary of $60 per month and in addition thereto to pay him one-lialf of the profits of the business, and that in ascertaining the profits the salary was to be deducted from the gross proceeds as an expense. Losee contends that that is the only meaning of which the words are capable and that that meaning is so plain and certain that there is no room for any construction that would give the contract a different meaning, and that to reform the contract as sought by Brunson would be to overturn the contract the parties made and to write an entirely different contract for them. The master and the court seem to have taken this view. The period of service under the contract was a little less than eleven months. As we understand it, the master found a profit of the business during that time of $517.76 and gave Losee one-half thereof. Brunson put in the entire capital of some $6,000 or $7,000 and assumed all the risk of loss in the business and put in his own time as salesman and buyer, while Losee only put in his time, without the investment of any capital or liability for any losses. Yet the result of the decree, if executed, would be that Losee will receive $911.38, while Brunson will receive $258.88 for the same period. Of course Brunson had power to make snch a contract, and if he intentionally agreed to pay his employe so much more than he would receive himself, or if he carelessly made a contract to that effect without due consideration of the result which it would produce, the contract should be enforced against him; but employers are not likely to make contracts bearing so unreasonably against themselves, and when the true meaning of the contract is in dispute the harsh or unreasonable results flowing from one construction should cause the court to search the contract diligently to see if it is capable of some more reasonable construction which the parties really intended.

The construction of the contract above stated as apparently the more natural is reached by assuming that it is the natural meaning of the words employed that “the profits of the business less the salary” is the thing which is to be divided and of which Losee was to have one-half. But it is not an impossible construction to assume that “one-half of the profits of the business” was that from which the salary was to be taken. This would be but another way of stating the contention of Brunson in his answer and cross-bill. In ordér to authorize either such a construction of the contract or such a reformation as would cause it to have such a meaning, Brunson offered evidence, first as to the oral agreement which preceded the writing, and second as to a construction placed upon said contract by both parties after the contract relation terminated.

Brunson testified that the contract between himself and Losee was verbally made at a meeting at an earlier date than the written contract, and that they then agreed that Losee should receive a guaranteed salary of $60 per month, and if one-half the profits should exceed $60 per month, Losee was also to receive the difference between one-half the profits and $60 per month. Losee did .not testify what said prior verbal agreement was, but did testify that the writing was made on January 25th at his request and that at the previous meeting they had settled the terms of his employment and that those terms were not materially changed on January 25th. The contract was written by Brunson, while Losee prompted and made suggestions.

Before this suit was begun, the parties submitted their differences to three arbitrators, Danielson, Du-pee and Newton, who entered upon the work of arbitration. When the arbitrators came to this contract they disagreed as to its meaning, and thereupon called in Brunson and Losee together and asked them what the contract meant. Danielson and Dupee were called to testify to statements made by Brunson and Losee in answer to this inquiry. Danielson testified that Brunson stated that Losee was to have one-half of the profits of the business on a guaranteed salary of $60 per month; if one-half of the profits exceeded $60 per month, Losee was to get the difference, and if one-half the profits did not equal $60 per month he was to get just the $60; and that Losee agreed exactly with Brunson as to what the contract meant. On cross-examination Danielson testified that Losee said that he would not consider a position unless Brunson would guarantee him at least $60 per month, and if he could work the business up to a point where one-half of the profits would exceed that he was to have that difference. Dupee testified that Losee answered the arbitrators that as he understood the agreement he was to have a guaranteed salary of $60 per month, whether there were any profits or not, and if one-half the profits of the business amounted to more than that he was to have one-half the profits less the $60 and that the $60 was not to be carried to expense account. Dupee further testified that both Brunson and Losee said that Losee was to have a guaranteed salary of $60 per month, and one-half the profits less the $60 guaranteed salary. On cross-examination of Dupee a letter was put in evidence which he had previously written in answer to an inquiry as to what Brunson and Losee had said to the arbitrators, in which letter he stated that Brunson and Losee both agreed that Losee was to have a guaranteed salary of $60 per month and one-half the profits remaining after deducting Losee’s salary. ' This was practically the language of the letter and equally subject to two constructions.

If the foregoing were all the oral testimony on this subject, we should hold that justice and the proofs required either that the contract be construed to conform to Brunson’s contention or else that it be reformed so as to express that meaning. But Brunson during his examination was further asked what his understanding of the agreement was and he answered: “He was to have one-half of the profits if the profits exceeded $60 per month, but he was to have a guaranteed salary of $60 per month; in case the profits did not exceed $60 he was just to receive his guaranteed salary.” He was then asked what he stated to the arbitrators as his understanding of the agreement when he and Losee were called before them, and he answered: “I told them that my understanding was that Mr. Losee was to receive one-half the profits if the profits exceeded the salary. In case the profits did exceed the $60 per month, then the $60 was to be deducted.” It will be seen that this is entirely inconsistent with all the other oral evidence which we have above stated, and is in harmony with the view taken by the court below. In this last stated evidence Brunson testifies, not that the salary was to be deducted from one-half the profits, or that if one-half the profits exceeded $60 per month Losee was to have that excess, but he says that if the entire profits exceeded the $60 per month, then Losee was to receive one-half of said profits. In other words, the salary was to be taken out of the gross proceeds, and the profits thus ascertained were to be divided. While that is inconsistent with the other evidence given by Brunson and with the testimony of Danielson and Dupee, yet Brunson was the defendant seeking to establish an unusual construction of the words employed in the written contract, and Brunson having given this construction to it in the evidence last quoted, we think the court might well conclude either that that was the true version of what the contract meant or else that his contradictory testimony as to the prior negotiations and as to the conversation before the arbitrators showed that his own mind was in confusion as to what the contract was. With this last evidence by Brunson in the record, we are of opinion the conclusion of the master and the court as to the meaning of the contract should not be disturbed.

It is contended that the master made errors in stating the account as to certain items and that as the result thereof the amount of profits found by the master is too great. Without discussing these items in detail, we think it sufficient to say that we think the master’s conclusions warranted by the testimony and the stipulations which were used as evidence.

The decree is therefore affirmed.

'Affirmed.


text:
    Laura Luckey, Appellee, v. Yeomen of America, Appellant.
    Gen. No. 4,937.
    1. Res judicata—lohat does not tar proceeding under coram notis section of Practice Act. A decree in a bill in equity seeking relief against a judgment at law does not bar an application for relief under section 66 of the Practice Act of 1872, where such bill in equity has been dismissed because of the existence of a remedy at law.
    2. Insurance—section 1 of act of June SI, 1895, concerning the jurisdiction of Circuit Courts in cases against insurance companies, construed. Held, that the provision of section 1 of said act of June 21, 1895, which provides that the courts of record of the county where the plaintiff resides shall have jurisdiction of actions commenced by individuals against an insurance company and that process in any such cause may be directed to any county in the state for service, should not be so construed as to require the sending of the process to the home office of the insurance company, but the summons may properly issue to the sheriff of the county in which the action is instituted and served upon any proper officer of the defendant company who may be found in such county.
    3. Service of process—when upon fraternal benefit society sufficient. Held, that the service in this case upon a fraternal benefit society, defendant, was sufficient by being had upon the secretary of one of the subordinate lodges of said defendant society.
    4. Fratebnae benefit societies—who proper plaintiff to recover disability benefits under certificate. The beneficiary, and not the member, is the proper plaintiff to recover disability benefits under a certificate which promises to pay to such beneficiary upon “the death or disability of said member,” and contains no other promise to pay.
    5. Practice Act—section 66 construed. Held, that under appropriate facts, the amount of a judgment at law may be corrected by motion made under section 66 of the Practice Act of 1872.
    Assumpsit. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Bldredge, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 14, 1908.
    Statement by the Court. On January 8, 1907, at the October term, 1906, appellee recovered a judgment against appellant in the LaSalle Circuit Court for $2,150 in an action of assumpsit. Afterwards, at the March term, 1907, of said court, appellant entered its motion in said court to vacate said judgment and to correct errors in fact committed in the proceedings resulting in the entry of said judgment. This motion was under section 66 of the Practice Act of 1872, which is in part as follows: “The writ of error coram nobis is hereby abolished, and all errors in fact committed in the proceedings of any court of record, and which by the common law could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing made at any time within five years after the rendition of final judgment in the case, upon reasonable notice.” The motion by appellant was in writing and set up in detail various grounds on which the motion was based, and it showed that the suit was upon a certain life insurance policy or beneficiary certificate issued by appellant; and there was included in the motion certain sections of the by-laws of appellant, and there was attached thereto a certain application on which said beneficiary certificate was issued and also a copy of the entire constitution and by-laws of appellant. Upon a hearing of the motion appellant read in evidence the affidavit of Fred B. Silsbee, the national president of appellant; the affidavit of John L. Walker, the national secretary of appellant; the application for the beneficiary certificate in question and all papers attached thereto; and the praecipe, summons and return, declaration and pleadings leading up to the judgment which the motion sought to have vacated. Appellant then read in evidence a transcript of what was alleged to be the evidence heard by the court before the entry of said judgment and also the certificate of incorporation of appellant and certain sections of its by-laws; and then examined Silsbee as a witness in open court. Appellee, upon the hearing of said motion, read in evidence the affidavit of George H. Haight and a certified copy of a bill of complaint filed in a certain chancery cause brought by the Yeomen of America against Laura Luekey in said La Salle Circuit Court after the entry of said judgment and before the making of the motion now in question, the object of which bill was to enjoin the collection of such judgment and to obtain a decree setting aside said judgment and ordering a new trial at law with leave to said Yeomen of America to defend therein; also a demurrer. of said Laura Luekey thereto; also a decree sustaining said demurrer and dismissing said bill for want of equity; all of which was before the entry of the motion now in question. The motion was denied at the costs of appellant. This is an appeal from that order and judgment.
    From this proof it appears that the certificate in question was issued to “Charley” Luckey, a member of Grand Eidge Council, No. 212,.of the Yeomen of America, located at Grand Eidge (which is in LaSalle county), and providing for payment of not exceeding $2,000 to Laura Luckey, his mother, in case of his death or disability, which certificate was dated August 28, 1903, and was countersigned by the Grand Eidge Council on September 9, 1903. On June 1, 1906, Charles Luckey, by Amos Luckey, his father and next friend, sued out a summons against appellant from the Circuit Court of LaSalle county, directed to the sheriff of said county to serve, and afterwards it was filed in court with a return of service thereon by the sheriff of said county, the body of which was as follows: “I have duly served the within summons on the within named The Yeomen of America, by reading the same and by leaving a copy thereof with J. T. Bute, secretary and an agent of the within named The Yeomen of America, this 1st day of June, 1906. The president of the within named The Yeomen of America is not found in my county. ’ ’ Afterwards, on June 16, 1906, on motion of the plaintiff in said cause, an order was entered giving leave to substitute Laura Luckey as plaintiff in place of Charles Luckey, by Amos Luckey, his father and next friend. Afterwards, on September 24, 1906, Laura Luckey filed in said cause a declaration against appellant upon said beneficiary certificate. On January 8, 1907, appellant was ruled to plead instanter in said cause and was defaulted and proofs were heard and the judgment in question was entered.
    Aldbich & Wobcesteb and Elmeb E. Eobebts, for appellant.
    D. B. Snow and Hall & Haight, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

It is contended by appellee that the decree sustaining the demurrer to appellant’s bill in equity, which prayed for the same relief here sought, and dismissing said bill for want of equity, is a bar to this proceeding at law under section 66 of the Practice Act of 1872, which is substantially the same as section 89 of the Practice Act of 1907. We are of opinion that it was not such a bar, under the principles laid down in Farmers’ & Mechanics’ Life Assn. v. Caine, 123 Ill. App. 419, and 224 Ill. 599.

The home office of appellant was in Kane county. Section 1 of the act of June 21, 1895, concerning the jurisdiction of Circuit Courts in cases against insurance companies, provides that the courts of record of the county where the plaintiff resides shall have jurisdiction of actions commenced by any individual against any insurance company and that process issued in any such case may be directed to any county in the state for service. Appellant insists that the words “may” in that statute should be read “shall,” and that it was essential to jurisdiction that the summons in this case should have been sent to the sheriff of Kane county to execute. We conclude that the statute just referred to was intended for cases against insurance companies where the plaintiff could not find in his own county where he instituted the suit any agent of the insurance company upon which service of process against such insurance company could lawfully be had; but that section 4 of the Practice Act of 1872 was not intended to be repealed thereby or to be made inapplicable to insurance companies who had in the county where the suit was brought an agent upon whom service might be had. That section authorizes service upon an incorporated company by leaving a copy thereof with the president, if he can be found in the county where the suit was brought, and if he shall not be found in such county, then by leaving a copy with any clerk, secretary, agent, etc. We are of opinion that this summons was properly addressed to the sheriff of La Salle county, if any person could be found in said county upon whom service could lawfully be had.

The return to the summons in this case showed service upon the within named Yeomen of America by reading the same to and by leaving a copy thereof with ‘ ‘ T. J. Bute, secretary and an agent of the within named The Yeomen of America,” the president of said The Yeomen of America not being found in the county. Appellant contends that Bute was not a person upon whom service of a summons against appellant could lawfully be had. At the close of the certificate upon which this suit was brought, as it appears upon page 48 of the record, where it is apparently reproduced substantially in facsimile, the attestation clause is on the right-hand side, while on the left-hand side is the seal of the supreme council, and underneath it, still opposite said attestation clause, is a seal bearing the following impression: “Grand Ridge Council No. 212 Grand Ridge (Seal) Illinois. Yeomen of America.” Below this are the signatures of the supreme president and the supreme secretary, followed by an acceptance of the certificate by Charles Luckey, underneath which is the following: “We the undersigned, President and Secretary of Grand Ridge Council No. 212 of the Yeomen of America, do hereby countersign and attach the seal of this council hereto this 9th day of September, 1903. T. J. Bute, Secretary. J. S. Dearth, President.” It will therefore be seen that the certificate itself bears evidence that Bute was the secretary of the local council of appellant at Grand Ridge and that his official signature as secretary and his affixing of the seal of the local council were essential to the validity of the certificate. The proof shows that he continued to hold that office from that time till the service of this summons upon him and until the hearing of the proofs on default and the entry of the judgment. Appellant offered in evidence a transcript of the proof taken before the court upon default, upon which the judgment was based. That transcript shows that Bute was a witness at that hearing. He there testified that he was “acting as secretary” of appellant, and it is, argued that a person merely acting as secretary would not be one upon whom service of summons could be had. But it is plain from his entire examination that he meant that he was the secretary of the Grand Ridge Council, No. 212, of the Yeomen of America, and has ever since been such secretary. It was'held in Grand Lodge A. O. U. W. v. Lochmann, 199 Ill. 140, that in Illinois the relation of subordinate lodges to the grand lodge in societies of this kind is that of agency, and in Court of Honor v. Dinger, 221 Ill. 176, that the officers of the subordinate lodge act - as agents of the supreme lodge. While an affidavit read in evidence by appellant denies that Bute was the secretary or even a member of appellant, it is not denied but that he was when the summons was served and when the trial was had the secretary of the Grand Ridge Council of appellant and a member thereof. We hold that the service upon him was sufficient. That service was had on June 1, 1906. The proofs show without contradiction that appellant had at or about that time at Ottawa an attorney, who was also the local agent of appellant at Ottawa, who advised appellant of the pendency of this suit at its head office in Aurora before June 15th. The president states that he did not know of the commencement of the suit until about July 10, 1906, but there is no showing but that the secretary of appellant at its home office or some other officer may have immediately known of the commencement of said suit. The affidavits of Silsbee, president of appellant, and Haight, attorney for appellee, show that in the latter part of June, or early in July, 1906, they were in communication with each other by personal interview and by telephone concerning the pending suit. There is a sharp controversy between them as to exactly what occurred. Silsbee alleges that he convinced Haight that he should amend and make Charles Luckey the plaintiff, and that Haight agreed to do so and to send him a copy of the declaration when filed; and agreed that nothing further should be done in court except to make the amendment and to file the declaration, till Haight sent a copy of the declaration to Silsbee ; that then Silsbee would enter the general appearance of appellant and intended to file pleas (which of itself shows that he did not then intend to rely upon the insufficiency of service now alleged); that he did not receive a copy of the declaration, and paid no further attention to the case, in reliance upon Haight’s promise, and did not know of the default and judgment until after that term had expired and an execution had been placed in the hands of the sheriff of Kane county. Haight alleges that there was no agreement to change the name of the plaintiff back to Charles Luckey; that he applied to Silsbee for a copy of the application and of the proofs of disability, and stated to Silsbee that he could not well draw the declaration without said proofs of disability; that Silsbee promised to send them to him; that later he again called upon Silsbee for said proofs of disability and had another promise that they should be sent him; that he never received such proofs, and became satisfied that Silsbee was deceiving him, and thereafter proceeded without further intercourse with the head office. It will thus be seen that from the time the president was fully informed of the nature and pendency of the suit, and from the time that defendant’s local attorney knew thereof, till the judgment was rendered, was about six months, and that from the filing of the declaration till the default was about three and one-half months.

Appellant argues that this action could not be maintained in the name of Laura Luckey, but that the cause of action was in Charles Luckey, the member, so long as he lived, and that Laura Luckey had no cause of action except in the event of the death of Charles Luckey. From an examination of the various sections of the hy-laws relating to this subject it would seem to be a reasonable inference from the rather ambiguous language used therein that they intend that the member shall be the one who shall receive payment for disabilities, and that the beneficiary named shall only receive payment in case of the death of the member. But this certificate does not so read. It provides that appellant “hereby promises and binds itself to pay out of its reserve fund to Laura Luckey, related as mother, a sum not exceeding $2,000, in accordance with and under the provisions of section 120 of the laws governing said fund, upon satisfactory evidence of the death or disability of said member, ’ ’ the member having been previously named as “Charley” Luckey. Said section 120 of the by-laws relates to the death of the member only, and other sections cover the subject of partial disability and total disability. If, therefore, in the part just quoted “or disability” had been omitted, then it would be clear that Laura Luckey had no cause of action during the life of the member. But the promise here is to pay to Laura Luckey upon “the death or disability of said member,” and there is no other promise in this certificate to pay anything to anyone. It is therefore obvious that if the suit had been prosecuted in the name of the member, he was liable to be met with the defense- that the money by the express terms of the contract was payable only to his mother. How the certificate came to be made to read as it does is not explained. The by-laws in question had been in force only a little over three months, and it may be that this was an old form of certificate which conformed to previous by-laws. Be that as it may, appellee ought not to be deprived of a recovery because of the by-laws when suing upon a contract expressly made payable to herself alone. But we regard this as immaterial for another reason. Charles Luckey brought the suit. On his motion Laura Luckey was substituted as plaintiff. He was a witness at the hearing after the default. He is bound by the judgment and would be estopped from bringing a suit in bis own name upon this certificate after his mother had recovered the full amount due.

The disability alleged is total blindness of both eyes. The bill in equity asserted that the member is not totally blind. Ño such point was made upon the motion to vacate the judgment. The proofs taken upon the default and offered by appellant upon the hearing of this motion show that Charles Luckey is practically totally blind and irrecoverably so. It is true that he can discern with one eye the difference between a strong light and total darkness, but he cannot see any visible objects nor distinguish the windows in a room by looking at them, and his affliction is undoubtedly total disability.

There are two respects in which the judgment is not in harmony with the by-laws. It is for too large a sum. The promise is not to pay $2,000, but a sum not exceeding $2,000. It is clear that the payment is to be made pursuant to the by-laws. Section 106 thereof defines total disability and includes the disability of total blindness and provides for the payment in such case of “the full certificate, less unpaid costs,” after proofs of disability, etc. Section 108 provides that the unpaid balance of the purchase price shall be deducted from the certificate. Section 109 is as follows: “Our Plan—Justice to All—Is understood to mean that all members shall pay the cost price for their insurance regardless of the date of death. In computing the cost of Insurance on our tables, the monthly payments are figures to seventy years of age on all ages below fifty, and expectancy tables are used for all ages above and including fifty years of age.” Section 110 provides, among other things, as follows: “If death or disability occurs previous to reaching seventy years of age or expectancy period, the unpaid monthly payments for the unexpired time will be deducted from the certificate.” Appellant had two classes of certificates, called “A” and “B.” Section 117 of the bylaws is a table of rates under certificate “B.” Charles Luckey’s nearest birthday at the time of the application for insurance was the eighteenth. The rates for certificate “B” required a person of that age to pay forty cents per month on each $1,000 of insurance. He therefore paid eighty cents per month. Silsbee testified that up to and including the month of December, 1906, Charles Luckey had paid into the order for forty months, or $32. As he paid eighty cents per month, and was insured at the age of eighteen, the by-laws required him to pay eighty cents per month for fifty-twó years, or for 624 months. The total sum he would therefore have to pay for his insurance, if he had continued to pay till he reached the age of seventy years would be $499.20. That sum, deducted from $2,000, would leave $1,500.80. According to the by-laws his certificate, therefore, was treated as worth the net value of $1,500.80 at the time it was issued. He paid $32 in monthly payments. Therefore, according to the plan of the society, the net value of his policy on December 31, 1906, just before this judgment was entered, was $1,532.80, and the judgment was for $617.20 more than the liability of the company upon said certificate. We do not feel called upon to decide whether it was wise or reasonable for such a. society to require its members to pay the cost of the insurance till the member would have reached the age ' of seventy years, regardless of whether the insurance is kept in force that long. It is sufficient in this action at law that the certificate and by-laws show that that is the contract between the member and the society. It is' perhaps due to the trial court to say that if the transcript of the evidence heard upon the default contained all the evidence presented to the court below, as seems to have been admitted on the hearing of the motion, then the trial court in rendering judgment did not have before it the by-laws, but acted on the supposition that the certificate was a promise to pay $2,000 upon total disability.

It is contended by appellee that if the amount is too large, it cannot be corrected on this motion. The scope and purpose of the motion are defined in the late cases of Mitchell v. King, 187 Ill. 452; Consolidated Coal Co. v. Oeltjen, 189 Ill. 85; Tosetti Brewing Co. v. Koehler, 200 Ill. 369; Pisa v. Resek, 206 Ill. 344, and Domitzski v. Am. Linseed Oil Co., 221 Ill. 161. From these cases it may well be doubted whether relief merely as to the amount of the judgment can be granted on this motion. But there are two considerations tending to the opposite conclusion: First, the failure to credit appellant with the “unpaid cost” was an error in fact arising from the failure of appellee to present the bylaws to the trial court. Second, appellee by her demurrer has induced the court to hold that there was no remedy in equity, obviously because there was this remedy at law. If we hold now that relief against this excess cannot be granted in this motion at law, we shall be met at the next term by a writ of error in the chancery cause and shall be compelled to hold that relief should have been granted in that cause. We conclude that appellee, having procured the dismissal of the bill in equity without a hearing, should not now be permitted to object to the granting of this relief here.

The judgment is unauthorized by the by-laws in another particular. This certificate belonged in class “B.” An examination of sections 108, 110, 117 and 118 of the by-laws shows that certificates under class “ B ” are not to be paid in cash down, but that payments of 20 per cent, annually will be made for five years instead of in a lump sum. It would therefore seem from the by-laws that appellee was entitled to recover $306.56 annually for five years, instead of $1,532.80 at once. We however do not feel called upon to correct this in this proceeding. First. It would be a dilatory defense, if interposed, and does not affect the amount of the liability of appellant. Second. Silsbee testified that the net value of the policy on December 31, 1906, was $1,532.80, and being asked by the court whether his understanding of the by-laws was that there would have to be a suit for each separate installment as it became due, gave an answer which showed that he himself was in doubt as to the meaning of the by-laws on that subject. Third. In the bill in equity filed by appellant and sworn to by Silsbee it was alleged that under the by-laws 20 per cent, was payable after due proof of disability and allowance of the claim and that the balance was payable in sixteen equal quarterly instalments, payable on the last days of March, June, September and December following the first payment, and this although section 18 of the by-laws attached to the bill of complaint as an exhibit provides for “five annual payments in case of disability.” As the officers of appellant are in so much doubt as to the meaning of the by-laws on this subject, "we shall not undertake to enforce them.

The order is therefore reversed and the cause is remanded with directions to the court below, if plaintiff shall remit $617.20 of the principal of the judgment, then to enter an order for the indorsement of that credit upon all executions, and that the judgment shall be satisfied upon payment of $1,532.80 of the principal of the judgment, and interest thereon, and costs to the date of the judgment, adjudging the costs of the motion against plaintiff; and if plaintiff shall not make such remittitur, then to vacate the judgment and grant the defendant leave to plead to the merits.

Reversed and remanded with directions.


text:
    Ernest F. Gould, Appellee, v. Aurora, Elgin & Chicago Railway Company, Appellant.
    Gen. No. 4,893.
    1. Instruction—when ignores doctrine of assumed rislc. The declaration not alleging that the plaintiff did not assume the risk from which his injury resulted, an instruction upon the preponderance of the evidence, as follows, is erroneous as ignoring the doctrine of assumed risk.
    “The court instructs the jury that if they find from the evidence that the plaintiff has made out his case by a preponderance of the evidence, as alleged in the declaration, then the jury should find the defendant guilty, and assess his damages at whatever sum the evidence shows, if any, under the instructions of the court, he has sustained.”
    2. Instruction—what should contain which concludes with direction to jury. When an instruction directs a verdict for either party or directs a verdict in case the jury shall find certain facts, it must contain all the facts which will authorize the verdict directed.
    3. Pleading—what not equivalent to allegation of non-assumption of rislc. Held, that an allegation contained in a declaration that the plaintiff had no knowledge of a particular condition therein averred, is not equivalent to an allegation of non-assumption of risk.
    4. New trial-—when 'newly discovered evidence ground for. Newly discovered evidence material in character which would justify a change in the result, is ground for a new trial, where there was no lack of diligence in ascertaining its existence.
    5. Evidence—what not part of res gestae. A statement by a foreman or superintendent that he knew that it was dangerous for the plaintiff to work upon the platform by reason of which he was injured, made after and away from the scene of the accident, is not part of the res gestae and does not bind the master.
    Action in case for personal injuries. Appeal from the Circuit Court of Kane county; the Hon. Henry B. Willis, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 15, 1908.
    Statement by the Court. A power house was in course of erection for appellant at Batavia, in Kane county. After the walls were up and long before the completion of the building, two freight elevators were erected just inside the west wall of the building and they were used to carry material from the ground floor to the different floors above as required. The south elevator was operated with eight or nine counterweights weighing together about 3,500 pounds, which ran up and down in a shaft about sixteen inches by twenty-four inches in size on the north side of the elevator and back against the wall being therefore just outside the northwest corner of the elevator shaft. When the elevator went up the counter-weights went down in this counter-weight shaft, being controlled in their direction by a groove upon an upright iron beam which formed a part of the frame of the shaft.- When the elevator went down the weights went up. This counter-weight shaft was not guarded at the time here in controversy. Some considerable distance above the ground floor there was an iron or steel platform about this south elevator shaft. This platform was about twelve feet by fourteen feet. It was formed of “I” beams with other iron construction between them. Appellee was a laborer engaged in strengthening this platform by placing angle irons upon the frame thereof. He had to put bolts through the angle irons and through the “I” beams and in order to perform that work found it necessary or convenient to do the work lying upon his stomach. In that position he moved from place to place about the platform. The elevator was in operation while he was doing this work. Just prior to the accident here in question appellee, then working between the two elevator shafts, found himself unable to get in certain angle irons without help, and he called for the aid of two men who were operating the elevator. They stopped the elevator and rendered him the required assistance. They told him they were going to bring up some cinders. After they finished helping him they lowered the elevator to the bottom, took on a fireman who wished to .oil some machinery, and then went up with the elevator. Just at this instant appellee accidently placed one of his feet over or into thé counter-weight shaft of the elevator in question, and as the elevator ascended and the counter-weights sank they caught and crushed his foot, which had to be amputated afterwards.
    Appellee brought this suit against appellant to recover damages for said injury. He filed a declaration to which a demurrer was confessed, and then filed an amended declaration containing a single count.
      It averred that appellee was in the service of appellant as a workman, described the situation and alleged that there was a guard which belonged to said counterweight shaft or slide shaft, as the amended declaration named it, which guard was necessary for the safety of the workmen about the shaft, and that by the neglect of appellant it had not been placed upon the shaft; that plaintiff had no knowledge of the unsafe condition of the elevator shaft or of the absence of guards therefrom, and that while he was at work and necessarily lying upon his stomach in the performance of his work and exercising all care for his personal safety through the negligence of appellant in allowing • said weight to be operated without a proper guard and in allowing the guard to be removed from the shaft, or in negligently failing to place a guard in front thereof, and in allowing said weight shaft thereby to become out of repair and dangerous, his foot was pushed into the slide and crushed and afterwards necessarily amputated. Appellant filed pleas of the general issue and of the Statute of Limitations to said amended declaration. A demurrer was sustained to the plea of the Statute of Limitations. The cause went to trial upon the amended declaration and a plea of not guilty. Appellee had a verdict. A motion by appellant for a new trial was denied. Appellee had judgment on the verdict" and this is an appeal therefrom.
    Hopkins, Peffebs & Hopkins, for appellant.
    Fbank W. Joslyn and Waite Joslyn, for appellee; Botsfokd, Wayne & Botsfobd, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

The fourth instruction given to the jury at the request of appellee was as follows:

‘‘ The court instructs the jury that if they find from the evidence that the plaintiff has made out his case by a preponderance of the evidence, as alleged in the declaration, then the jury should find the defendant guilty, and assess his damages at whatever sum the evidence shows, if any, under the iiistructions of the court, he has sustained.”

It is argued that this instruction excludes the defense of assumed risk, and that it was therefore error to give it. Appellee was fam'ilar with the place where he was at work and with all the surroundings. The open counter-weight shaft was in plain sight to any one who looked. The counter-weights were six feet high and passed up and down the shaft whenever the elevator moved and in the opposite direction from the elevator. There was nothing to obstruct the view of the weights as they passed up and down the shaft There was reasonable ground for appellant to contend before the jury that appellee assumed the risk of the condition to which his injury was due. The declaration did not charge that this was a risk which appellee did not assume. It did charge that appellee had no knowledge that the counter-weights had a shaft of their own outside of the elevator shaft. But that did not constitute an averment that appellee did not assume the risk nor was it equivalent to such an allegation. The servant assumes not only all • obvious dangers and all dangers which are known to him, bnt also all dangers which ordinary care for his own safety would have revealed to him (Jones & Adams Co. v. George, 227 Ill. 64), and he is chargeable with knowledge of all the conditions of which he, in the exercise of due care, has equal opportunity with his employer to know. E. J. & E. Ry. Co. v. Myers, 226 Ill. 358. The instruction under discussion, that if appellee had made out his case by a preponderance of the evidence as alleged in the declaration the jury should find appellant guilty and assess damages, in effect told the jury that appellant could be found guilty, even though appellee assumed the risk of that condition which caused his injury. This was reversible error. I. C. R. R. Co. v. Smith, 208 Ill. 608, 619; Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243; Montgomery Coal Co. v. Barringer, 218 Ill. 327; Pioneer Fire Proofing Co. v. Clifford, 125 Ill. App. 352. Appellee contends that the declaration negatives the assumption of risk, under the authority of Kirk & Co. v. Jajko, 224 Ill. 338, to which may be added North Chicago St. R. R. Co. v. Auffmann, 221 Ill. 614, and Springfield Boiler Co. v. Parks, 222 Ill. 355. The amended declaration in this case does not contain any such averments as those set out in the cases cited, which were there held to relieve those servants of the assumption of the risks of the conditions which caused the injuries. Appellee also contends that the error in this instruction is cured by other instructions given at the request of appellant, which properly stated to the jury the law governing the assumption of risks by appellee. There would be force in this contention if the instruction in question did not direct a verdict, but when an instruction directs a verdict for either party, or directs a verdict in case the jury shall find certain facts, it must contain all the facts which will authorize the verdict directed. Pardridge v. Cutler, 168 Ill. 504; I. C. R. R. v. Smith, supra; Pitman v. C. & E. I. R. R. Co., 231 Ill. 581. This instruction was especially injurious in this case because under the evidence, which we have not fully stated, it is a serious question whether appellee did not have such means of knowledge as caused him to assume the risk of the conditions which resulted in his injury.

One of the grounds upon which a new trial was asked was newly discovered evidence. Appellee testified in chief that he had no knowledge whatever of the construction of the elevator shaft; that he had never before the accident observed those counter-balance weights plying up and down; and that in all elevators which he had seen the weights go up and down in a groove or slot inside the elevator shaft itself. In support of the motion for a new trial appellant read the affidavits of Arthur C. Tremain and of E. 0. Burghardt, who stated that at the time of and prior to appellee’s injury they were engaged in the work of construction at said power house; that during that time appellee had been engaged in drilling holes in the counter-weight shaft of said elevator so that a wire screen might be attached to inclose'the shaft in which said counter-weights worked when the elevator was in operation; .that prior to the accident appellee repeatedly rode up and down; that while appellee was drilling said holes for fastening said screen to enclose said counter-weight shaft, the affiant repeatedly saw him stand upon the counter-weights and had seen him ride up and down in said counter-weight shaft while so standing on said counter-weights, and that appellee had caused said counter-weights to stop at different positions in said counter-weight shaft while he stood thereon and drilled holes up and down said shaft; that appellee was thoroughly familiar with the working of the elevator and all its parts, and with the location of the shaft in which the counter-weights worked, and with the position and operation of said counter-weights when the elevator was in operation; that the holes which appellee had been engaged in drilling to fasten said screen to enclose said shaft were in the “I,” beams which formed the slide on which the counterweights worked, and that while engaged in said work appellee repeatedly for days prior to said accident had seen the elevator and counter-weights in operation. They further stated that before the case was tried the, attorneys for appellant and a special agent for appellant had inquired of them what knowledge they possessed in regard to said accident and appellee’s employment there and concerning appellee’s knowledge of the conditions surrounding the place of the accident and the elevator counter-weights and platform; that the affiants sympathized with appellee because he was a fellow workman and had suffered much from the injury, and that therefore they did not disclose the facts above stated to said attorneys or to said agent, and did not allow any one to learn that they were acquainted with said facts or had any knowledge on the subject till long after the trial; and that they would testify to said facts upon another trial of said cause. Appellant also filed with said motion the affidavits of the two attorneys who tried the cause for appellant, in which they show that they had diligently questioned Tremain and Burghardt on these subjects and had failed to learn that they knew anything of appellee’s knowledge of the conditions. When appellee testified that he had never seen the weights passing up and down the counter-weight shaft and did not know that they were not inside the elevator shaft and did not know that they were unguarded, appellant had no means to meet that proof, so far as appears in this record, and the affidavits of the attorneys show due diligence to ascertain if Tremain and Burghardt knew anything of appellee’s knowledge of the conditions. This newly discovered evidence was very material, for if the proof had shown the facts stated in said affidavits, that would have warranted the jury in finding that appellee had full knowledge of the conditions and of the location of the counter-weight shaft, and of the manner in which the weights played up and down, and knew that it was not guarded, not only from his ability to ride up and down in the shaft but from the fact that he was doing some of the work preliminary to enclosing the counter-weight shaft with a guard. It would have warranted the jury in finding that he was guilty of contributory negligence when he placed his foot in the counter-weight shaft at a time when he knew by what he had just been told that the elevator was about to ascend which would cause the counter weights to. descend. We are of opinion the court should have awarded a new trial because of this newly discovered evidence.

It was a sharply disputed question of fact whether appellee was a servant of appellant, as alleged in the declaration, or whether the Cleveland Construction Company had the contract for the erection of said power house and appellee was in its employ. Appellee contends that appellant cannot raise this question for lack of a special plea, and relies upon McNulta v. Lockridge, 137 Ill. 270; C. & E. I. R. R. Co. v. Schmitz, 211 Ill. 446; Chicago Union Traction Co. v. Jerka, 227 Ill. 95, and cases there cited. Appellant contends that the rules laid down in these authorities do not apply to the question whether the plaintiff is the servant of the defendant, but that where the declaratiqn avers the existence of the relation of master and servant, and the case rests upon that averment, the plaintiff must prove the allegations, relying upon such cases as Condon v. Schoenfeld, 214 Ill. 226. As the evidence is conflicting upon this subject and the question may not arise again we deem it unnecessary to decide this question.

Appellee was allowed to prove over objection that some time after the accident and at another place Aulthouse, appellee’s foreman or superintendent, made remarks indicating that he knew it was dangerous to send appellee to work upon the platform where he was injured. It is a controverted question whether Aulthouse was in the employ of appellant or of the Cleveland Construction Company, or indeed was the Cleveland Construction Company itself, but in either event his statements, made after and away from the scene of the. accident, could not bind appellant and shou>d not have been admitted. M. C. R. R. Co. v. Gougar, 55 Ill. 503; Jenks v. Burr, 56 Ill. 450; Primm v. Legg, 67 Ill. 500; M. C. R. R. Co. v. Carrow, 73 Ill. 348.

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

Reversed and remanded.

Mr. Presiding Justice Willis having presided at the trial of this case in the lower court, took no part in its decision here.


text:
    Nels Herman, Appellee, v. C. C. Wroughton, Appellant.
    Gen. No. 4,936.

      Verdict—when not disturbed as against the evidence. Where a controversy is purely one of fact and the evidence is conflicting, a verdict will not he disturbed in the absence of a clear preponderance against the verdict, where the jury and trial judge have seen and heard the witnesses.
    Assumpsit. Appeal from the Circuit Court of Kane county; the Hon. Henby B. Willis, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    J. 0. Murphy and B. P. Alschuler, for appellant.
    N. J. Aldrich, Theodore Worcester and P. W. Hartsburg, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellant received $1,000 from commissions paid for the sale of a farm. Appellee claimed that by an agreement between them appellant was to divide said commissions with him. Appellant refused to recognize the claim or divide said sum with appellee. Appellee sued appellant therefor, and had a verdict and a judgment for $500 from which defendant below appeals.

Appellee is a real estate and fire insurance agent at Batavia. Appellant is a life insurance agent at Aurora. Mary M. Or ego had a farm of 317 acres near North Aurora which she wished to sell so as to realize5 from it $110 per acre for herself. Her sons assisted "and acted for her with her approval. One of them placed the farm in the hands of appellant for sale. Appellant and appellee were acquainted and had theretofore dealt with each other. They had a conversation about the sale of this farm. Appellee testified that appellant told him the size of the farm and that he had it for sale, and if it could be sold at $115 per acre a commission of $5 per acre could be made; that he was not in the real estate business, and that he wanted appellee’s assistance in selling the farm; and that if appellee would assist him in selling it, they would divide the commissions, no matter which of them found the purchaser. Appellee replied that he would accept the proposition and do all he could. He took various steps towards selling the land, not necessary to be here stated, but he did not find the purchaser who afterwards bought it. Appellant testified that he told appellee that if appellee found a purchaser he would divide the commissions with appellee. Appellant argues here that the latter is the more reasonable and probable version of the contract. But there was testimony by several witnesses that after the farm was sold appellant requested the parties not to tell appellee, as, if appellee found it out, appellant would have to divide commissions with appellee, or would have to pay appellee half the commissions, or that appellee would want half the commissions. This tended to support appellee’s version of the contract.

Some time after the contract between appellant and appellee the Cregos gave M. E. Wolf an exclusive option to sell the farm for two months. Appellant told appellee of this. They differ as to the conversation then had. According to appellant what they then said indicated that that option put an end to their contract. According to appellee, appellant said that in the meantime they would keep an eye on buyers and when that option expired they would go to work and sell the farm if they could. Appellant contends that whatever was said, the effect of that option was to put an end to the contract between appellant and appellee. We are of opinion that that result did not necessarily follow. Whether that option ended or suspended appellant’s contract with the Cregos is immaterial, for appellee was not a party to that contract. The contract here sued upon was between appellant and appellee, and there is no preponderance of proof that they intended that their contract was thereby ended.

Afterwards one Warren, an agent of the same life insurance company as appellant, and whose office was in a room next to appellant’s office, got written authority from Mrs. Orego to sell the farm. Appellant went to Mrs. Orego the same day and had his name inserted with Warren’s name in the contract. A purchaser was produced whom Warren apparently found. Appellant and Warren went with this man to the farm, and he bought it for $115 per acre. Appellant took the leading part in the negotiations. Mrs. Orego was allowed $185 of the commissions with which to settle with Wolf. That left $1,400 of commissions. Mrs. Orego’s son after-wards paid $160 of the commissions to a trustee in bankruptcy afterwards appointed for Warren. Appellant received and retained $1,000 of the commissions. Appellant’s testimony was that Warren alone sold the farm, and that all the commissions belonged to Warren; that Warren owed appellant $1,0Q0 and he had his name inserted in that contract to enable him to collect that debt; and that he received the $1,000 not as commissions due to himself, but by assignment or transfer from Warren in payment of said debt. If the jury had so found, it may well be that such a verdict could not have been disturbed here; but there were a number of circumstances tending to show that Warren was brought in as a device to avoid a division of the commissions with appellee. The facts that Warren was a life insurance agent for the same company as appellant, that they occupied adjoining offices, that appellant took the leading part in conducting the sale, that appellant made the request that appellee be not informed of the sale, and what he said to the parties about having to divide commissions with appellee if appellee learned of the sale (which statement appellant did not deny making), that the Cregos evidently understood that appellant was receiving commissions for his own services, and other circumstances in proof, all taken together made such a case that a conclusion by the jury favorable to appellee, approved by the trial judge, cannot be said by this court to be without the support of the greater weight of the evidence. It is true that what appellee did towards finding a buyer does not seem to have aided in finding the party who actually purchased, but if his version of the contract is true, his right to half the commissions did not depend upon that consideration. He did find a prospective pur- ■ chaser and take him over the farm, and explain its merits, and if that man had bought, appellant would have been entitled to half the commissions without having done anything which aided in finding the purchaser. If appellant and appellee made such a contract with each other, there is no reason why the courts should not enforce it.

The controversy is purely one of fact for the jury upon the conflicting testimony of witnesses who were seen upon the stand by the jury and the trial judge. We ought not to disturb their conclusion. The judgment is therefore affirmed.

Affirmed.

Mr. Presiding Justice Willis having presided at the trial of this case in the lower court, took no part in its decision here.


text:
    Andrew Cudziak, Appellee, v. Morris & Company, Appellant.
    Gen. No. 4,939.

      Negligence—when evidence does not connect defendant. Held, that the evidence in this case did not connect the defendant, against whom judgment was rendered, with the negligence charged.
    Action in case for personal injuries. Appeal from the' Circuit Court of Kane county; the Hon. Linus C. Ruth, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.

      Winston, Payne, Steawn & Shaw, for appellant; Edwaed W. Evebett, of counsel.
    Johnson, Belasco & McCabe and Muephy & Alschuleb, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellee was working at night as an oiler in a building used for the manufacture of fertilizers at the Union Stock Yards in Chicago. He went upon a platform to oil certain machinery, and slipped and fell and was caught in the machinery and was injured thereby. He brought this suit in the Circuit Court of Kane county to recover damages therefor, alleging negligence of his employer in directing him to go upon the platform while it was slippery, and in leaving the machinery unguarded. He named as defendants Morris & Company, a corporation; Fairbanks Canning Company, a corporation; and Nelson Morris, Edward Morris and Ira N. Morris, partners doing business as Nelson Morris & Company. Service was had only upon the corporation Morris & Company, and it was the only defendant which appeared. It filed a plea of not guilty, and a special plea to the effect that it did not own, operate, control or use the plant described in the declaration, and that the plaintiff was not then and there in the employ of said defendant and was not then and there working as a laborer under the direction and control of said Morris & Company, as alleged in the declaration and each count thereof. Issue was joined upon these pleas, and upon a trial appellee had a verdict and a judgment against Morris & Company, from which it appeals.

Appellee proved by certain witnesses that he was working for Morris & Company. On cross-examination it was shown that they only judged so because there were many signs reading 6 Morris & Co. ’ ’ upon fences and buildings in that part of the stock yards, and that they could not read English and only knew how the signs read by what others told them or by the supposed resemblance of the English language to Polish. Appellee testified he worked for appellant, and that the tag he wore when at work read “M. & Co.” A lawyer’s clerk, who made a practice of bringing such cases to his employer, testified that there were signs reading “Morris & Co.” all about there, and he found and produced a blank receipt running to Morris & Company, which he found at the cashier’s desk at the main office of appellant. But he did not know in what building appellee worked, nor what signs were on that building, nor did he know for whom appellee worked except from what appellee told him. The proof for appellant clearly showed that the fertilizing plant at which appellee worked and was injured was operated exclusively by the firm of Nelson Morris & Co. The oiler, whose place appellee took on the night of the accident, testified that both he and appellee were working for Nelson Morris & Company. The timekeeper testified to the same fact. Time checks used in the fertilizing plant were identified by two or more witnesses and were introduced in evidence, and read“N. M. & Co.”, and there was proof that no time checks of Morris & Company were ever used in the fertilizing plant. The night foreman for Nelson Morris & Company testified that appellee was working under him when injured. The assistant night foreman testified that the fertilizing plant was operated by Nelson Morris Company. Samples of the shipping tags placed upon the product shipped from this establishment were identified and put in evidence, and they contained analyses of the product, guaranteed by Nelson Morris & Company. The proof shows that in that vicinity were buildings wherein business was carried on by appellant, and that appellant’s signs were abundant in that locality. But the proof is clear and corivincing that appellee was at work for Nelson Morris & Company in the plant or factory where that firm manufactured a fertilizer, and that the only signs upon that building read “Nelson Morris & Company,” and that he was not working for appellant. There is no claim that any one but appellee’s employers are responsible for his injury. It follows that this judgment cannot stand. It is to be regretted that this suit was not brought in the county where the accident happened and where all the parties named as defendants could have been served with process.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.