author: Mr. Justice Fitch

text:
    Sadie Plotke, Appellant, v. Isadore Plotke, Appellee.
    Gen. No. 17,718.
    1. Divorce—alteration of alimony. R. S. c. 40, § 18, which authorizes the court to change the allowance of alimony when the circumstances of the parties have changed since the former order, does not authorize the court to modify or change the allowance of alimony upon the same state of facts which existed at the time the decree was rendered.
    2. Divorce—where gross sum is awarded as alimony. Where a decree awards a sum in gross for, or in lieu of, alimony, such a decree is regarded as final and the gross sum, when paid, operates as a discharge and satisfaction of all claim for future support of the wife, but where alimony takes the form of a weekly, monthly or yearly allowance, the power is expressly reserved by statute for the court to modify it according to the varying circumstances and needs of the parties.
    3. Divorce—power of court to modify alimony decree entered by consent. Where a divorce is granted and “by consent of both parties” it is ordered that “in lieu of alimony” the husband shall convey to the wife certain property, pay certain debts and pay a fixed allowance for the wife each month, it being shown later that circumstances have changed, the court has power to modify the original decree notwithstanding the fact that it was entered by consent.
    4. Divorce—when error for court to modify a decree so that it provides for payment of a gross sum. WUiere a husband is unable to meet the obligations of a decree of alimony requiring him to pay a certain sum each month, it is error for the court to modify the decree so that it provides for the payment of a fixed sum in settlement of all claim for the future support and maintenance of the wife, where the wife does not consent and it does not appear that such an amount is a fair equivalent.

      Appeal from the Circuit Court of Cook county; the Hon. Lockwood Ho>toke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed February 13, 1913.
    Simmons & Irving, for appellant.
    A. L. Gettys, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from an order modifying a decree for the payment of alimony. By the terms of the original decree, entered in October, 1909, a divorce was granted to appellant and, “by consent of parties,” it was ordered that “in lieu of alimony” appellee should quitclaim to appellant the family residence in Chicago, with all the furniture and household goods, and a summer cottage in Indiana, pay certain bills and accounts aggregating about $900, pay to appellant $1,760 in cash and notes and $75 solicitor’s fees, and in addition thereto, pay “for the support of said Sadie Plotke” $50 a month for the first six months and $60 a month thereafter. Appellee complied with all'these requirements, except the last. He paid the required monthly instalments for about a year and then stopped paying. On being threatened with contempt proceedings, he filed a petition asking for a modification of that part of the decree requiring him to pay $60 a month. In his petition, he alleged that it had taken all his property to satisfy the first part of the decree, and that he had nothing left but his law practice (being a practicing lawyer) from which he was not making-enough to pay his necessary office and living expenses, and that he had been obliged to borrow money to meet the monthly payments he had already made. After an extended hearing, the court found that he was unable “at present” to comply with the decree, and' upon a suggestion of appellee’s counsel that appellee might be able to borrow $1,500 if the court would strike out of the decree all provisions for the payment of $60 per month, the court entered an order for the payment of $1,500 in lieu of the monthly instalments to accrue from and after the date of the order, ‘‘ in complete discharge of his obligations to pay periodical sums in the future.”

It is urged as a ground for reversal, that as the original decree for alimony was entered by consent, it cannot be changed or modified except by consent, and that in the absence of such consent on the part of appellant, it must “remain forever binding” upon appellee. In support of this view, counsel for appellant rely mainly upon one paragraph found in the opinion filed in the case of Buck v. Buck, 60 Ill. 241. In that case, the defendant prosecuted a writ of error from a decree which recited that the whole matter of alimony had been fixed and settled by the agreement of the parties, and the plaintiff in error claimed that the amount agreed on was excessive. In affirming the decree, the court applied' the familiar principle that a party to a decree cannot take advantage in a court of review of any alleged error to which he consented or failed to object, in the court below. It is true that in the opinion filed by the court it is also said: “It was competent for the plaintiff in error to consent to such a decree, and having done so, it must remain forever binding upon him;” but this sentence must be read in the light of the facts of that case and the contention to which it was pertinent. It does not purport to announce any general rule, and it cannot, therefore, be detached bodily from its context and applied, as a universal principle of equity, to cases in which the facts are essentially different. In this case, appellee did not attack the original decree upon any theory that it was erroneous or inequitable under the facts as they existed at the time the decree was entered, but sought to have it modified and a new order entered upon proof of facts occurring subsequent to the date of the decree. Section 18 of Chapter 40 of the Revised Statutes provides that “the court may, upon application, from time to time, make such alteration in the allowance of alimony and maintenance * * * as shall appear reasonable and proper.” In Cole v. Cole, 142 Ill. 19, it was held that this provision of the statute does not authorize the court to modify or change the allowance of alimony upon the same state of facts which existed at the time the decree was rendered, but authorizes the court to change the allowance when the circumstances of the parties have changed since the former order. Furthermore, it was held in Plaster v. Plaster, 47 Ill. 290, that where the decree awards a sum in gross for, or in lieu of alimony, such a decree will be regarded as final and the gross sum, when paid, will operate as a discharge and satisfaction in full for all claim for future support of the wife. See also, Griswold v. Griswold, 111 Ill. App. 269. The decree in the case of Buck v. Buck, supra, was of that character. But where the provision for alimony in the decree takes the form of a weekly, monthly, or yearly allowance, the power is expressly reserved by this statute to modify such a provision of the decree at any time, according to the varying circumstances and needs of the parties (Plaster v. Plaster, supra; Griswold v. Griswold, supra; Welty v. Welty, 195 Ill. 335), whether so expressed in the decree or not. Hilliard v. Anderson, 197 Ill. 549. Such was the character of the original decree in this case. It must be presumed that the parties entered into their agreement as to alimony with full knowledge on their part, or on the part of their solicitors, of the existence and effect of this statute. If the court had been asked in this case to enforce to the letter the original decree, it would clearly have been within its power to permit such a partial compliance with the decree as was shown to be reasonably practicable under all the circumstances and refuse to enforce the re-" mainder. It is equally clear that this course would amount, in its practical effect, to a modification of the decree, for the time being, at least. This being true, we can perceive no sound reason why the court, in the exercise of its broad equity powers, entirely apart from the statute, may not enter an order having the same effect. Certainly no useful purpose can be served in keeping upon the records of the court an order which, in equity and good conscience, the court must decline to enforce.

But while we are clearly of the opinion that under the circumstances shown in this case the court below had full power to modify the original decree notwithstanding the fact that it was entered by consent, we think the court erred in adopting the suggestion of appellee’s counsel and upon that basis alonfe, directing a gross amount to be paid in full of all claim for the future support and maintenance of appellant. Under the authorities above cited, such an order, when complied with, would forever discharge appellee from all obligation to provide even such future support for his former wife as his means will permit and her necessities require. The order contains a finding that the “earnings of the defendant at the present time are not sufficient to enable him to discharge the obligations of the said decree;” but there is no finding to the effect that he is not able to pay any part of such obligations, nor that the amount offered by his counsel is a fair equivalent for such part as he is or may be able to pay. Without some such finding of facts, we think the order for the payment of alimony in gross should only have been entered with the consent of the appellant; for by such an order, she is forever barred from making any further application to the court, even if his earnings from his law practice shall increase ten-fold. If appellant shall refuse to accept the offer of appellee, an order should be entered reducing the amount of the monthly instalments (until the further order of the court) to such amount as the court may' find to be “reasonable and proper” under all the circumstances.

The order of the Circuit Court will be reversed and remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Walter R. Swan and Wilbur B. Cooper, Administrators, Appellees, v. Boston Store of Chicago, Appellant.
    Gen. No. 17,748.
    1. Elevators—instructions. Where a boy five years of age in the charge of his mother fell down an elevator shaft when he attempted to leave an elevator, it is error to instruct the jury that the mere fact that he, or the one having him in charge, was mistaken as to the floor when attempting to get off the elevator, will not defeat recovery.
    2. Death—excessive damages. A verdict for $10,000 for the death of a boy five years of age is not in itself so excessive as to warrant reversal if fixed under proper instructions, where the parents of the deceased are in humble circumstances and the boy would naturally have been put to work as soon as he could earn anything.
    3. Damages—pecuniary aid by child. It is a matter of common observation that children of parents in humble circumstances usually give their parents more pecuniary aid than children of those in better circumstances.
    4. Death—when remarles of counsel and instructions prejudicial. In an action for the death of plaintiffs intestate, a boy five years of age, who fell down an elevator shaft in a store, remarks of counsel that nO' minimum recovery is fixed but that the court would instruct the jury that a maximum of $10,000 is fixed, referring to the cold, heartless manner of defendant’s counsel, to the “bargain counter tactics” of the defense, and to the loss of the parents which all the wealth of the state could not compensate, are prejudicial where followed immediately by instructions charging that in determining the amount of damages the jury should use their own judgment under the evidence and instructions, and that $10,000 is fixed as a maximum but no minimum is fixed.
    5. Appeals and errors—when “substantial justice" rule not applied. On appeal counsel is not entitled to the application of the rule that alleged errors should not reverse since “substantial justice” appears to have been done, where his own improper remarks in argument caused the substantial justice of the case to be clouded.
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed February 13, 1913.
    Rehearing denied February 27, 1913.

      Winston, Payne, Strawn & Shaw and Moses, Rosenthal & Kennedy, for appellant; Edward W. Everett, of counsel.
    Frederick Z. Marx, for appellees.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment for $10,000 entered upon a verdict finding appellant guilty of wrongfully causing the death of Eugene Swan, a boy five years old. At the time of the accident the boy, in company with his mother and two sisters, was in a passenger elevator in appellant’s department store in Chicago. They had entered the elevator on the ground floor, telling the operator as they entered that they “wanted to get off at the studio, on the eighth floor.” They stood together, facing the door, the boy holding his mother’s hand. In going up, the elevator stopped once or twice to take on and .let off passengers. When it reached the seventh floor it stopped again, the folding doors opened, and a letter carrier and a young man stepped out of the elevator. Mrs. Swan and her children, thinking they had reached the eighth floor, moved towards the open door. The boy let go of his mother’s hand, placed his hand on her arm, and stepped out of the elevator with one foot. As he did this, the elevator started up and the boy fell down the shaft, sustaining injuries from which lie died.

The essential facts are not controverted, ttTough counsel disagree as to the conclusions to be drawn therefrom. Appellant’s counsel contended in the court below that the boy’s mother was guilty of negligence contributing to the injury, and that the evidence . is consistent with the theory that the boy stepped vp-holly out of the elevator at the seventh floor and then, realizing his mistake, attempted to get back and in doing so, fell down the shaft. As we have reached the conclusion that a new trial should have been granted on account of prejudicial errors in instructions and improper remarks of plaintiff’s counsel during the arguments to the jury, we refrain from expressing any opinion upon the facts.

By the fifth instruction given to the jury, they were informed that it was “immaterial” that the boy, or those having him in charge, intended, when they entered the elevator, to get off at a floor other than the one where the accident occurred, and that “the mere fact * * * of mistaking the floor by said Eugene E. Swan or those having him in charge * * * when attempting to get off said elevator, will not defeat a recovery for damages herein.” While it may be true, as stated by this instruction, that the mere fact that the mother mistook the seventh floor for the eighth, would not, of itself, defeat a recovery, yet it was a circumstance proper to be considered by the jury, in connection with all other facts and circumstances in evidence, in determining whether the mother was guilty of negligence contributing to the injury. It has been repeatedly held that it is error to thus single out a particular fact appearing from the evidence and instruct the jury that any such fact alone is insufficient to warrant, or prevent, a recovery. Eckels v. Muttschall, 230 Ill. 462, 468; Weston v. Teufel, 213 Ill. 291, 300.

The amount of the verdict is the maximum amount that may be allowed in such cases as this. Yet while the verdict is very large, we are not prepared to hold that the mere fact that the jury “went to the limit” would be ground, sufficient in itself, to require a new trial, under the facts shown by the evidence. It is true, as urged by appellant’s counsel, that the boy’s parents were in humble circumstances, and it is a fair inference, at least, from the evidence, that the boys of this family would naturally be put to work as soon as they were capable of earning anything. It is a matter of common observation, however, that the children of such parents usually give more aid, in a pecuniary sense, to their parents than children of parents in better circumstances. Hence, it cannot be said that a verdiet for $10,000 in snob, a case is necessarily or inherently so excessive as to require a reversal, provided it appears that the jury fixed that amount under proper instructions as to damages, uninfluenced by any other consideration than that of awarding fair compensation for the pecuniary loss sustained by the next of kin. On the other hand, if it appears from the record that the jury may have been misled by instructions of equivocal meaning, or influenced by inflammatory appeals to their sympathies or prejudices, a verdict of that amount cannot justly be permitted to stand.

In the arguments to the jury, appellant’s counsel undertook to tell the jury what elements were proper to be considered by the jury in fixing the amount of damages. He told the jury that all that could be recovered “is the actual money loss that the estate has sustained by reason of his death,” eliminating all earnings prior to the boy’s maturity, and taking into consideration his probable length of life, his surroundings and manner of living, his means of acquiring an education, his probable occupation and his probable earnings, and told the jury “we have to get at these damages in that way, that is, what this young man would have earned and received during his life, if he lived.” To this argument plaintiff’s counsel replied that the law fixes no minimum, and that the court will instruct the jury that the law does fix a maximum of $10,000; that the jury might be led to believe, from the “cold, icicle, heartless manner” in which defendant’s counsel talked to the jury “that we should disregard the taking of human life, gentlemen, and then get out of it on the defense on the bargain counter style; but, gentlemen, the bargain counter tactics of the Boston Store will not prevail in the minds of an honest jury when it comes to the taking of human life. Now, gentlemen, the dream that the father and mother had of what Eugene would have amounted to, that is all gone. They, in their old days, will look-back and simply have a memory of what Eugene would have, what he could have been to them. That is the satisfaction they have, and even the wealth of the State of Illinois would not in any way compensate for the loss of the boy?”

Following this speech, the court instructed the jury that if they found the defendant guilty as charged, then they should assess the damages, and in determining the amount of such damages they should “use their own judgment, upon consideration of the evidence under the instructions of the court. ’ ’ The next instruction informed the jury “that the law in such a case as the present one does not fix a minimum amount of damages, but does fix a maximum amount of damages, and that such maximum is $10,000. ’ ’

These remarks of plaintiff’s counsel were highly improper. They were, in effect, an appeal to the prejudices and sympathies of the jurors, and an invitation to the jury to rebuke the alleged “bargain counter tactics” by returning a verdict for the limit permitted by the law. When followed immediately by the two instructions above mentioned, the effect could hardly be otherwise than prejudicial. By these instructions the court apparently sanctioned the appeal to the jury thus made by plaintiff’s counsel. It is true that by other instructions, the jury were instructed that no damages could be recovered except for “the actual pecuniary loss sustained by the estate of Eugene E. Swan,” and that nothing could be allowed for loss of companionship or society, or for the bereavement of the parents, but these instructions, in our opinion, did not remove the prejudicial effect of what immediately preceded. It is urged that even if error was committed in the respects noted, this court should disregard such error, for the reason that “substantial justice” appears to have been done. Counsel is not entitled to the application of the rule invoked by him, for the reason that by his own conduct he caused the substantial justice of the case to be clouded. We are reluctantly forced to the conclusion that appellant did not have the fair and impartial trial which the law guarantees to every litigant.

As to the errors assigned in giving the second instruction, they can be so readily avoided on another trial that we deem it unnecessary to discuss or decide the same.

For the reasons indicated, the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Curt Teich, Appellee, v. Midland Machine Company et al., Appellants.
    Gen. No. 17,809.
    1. Corporations—Chancery rule as to sworn answer. Where a bill is based on the Corporation Act, § 25, the rule as to the effect of sworn answers in chancery applies.
    2. Corporations—evidence that only one-half of stock was paid for. In a suit based on Corporation Act, § 25, by a holder of an unsatisfied judgment against defendant corporation, the evidence is insufficient to sustain a finding that the capital stock of defendant was less than half paid for where the sworn answer alleges that all of the stock, amounting to $50,000 was fully paid for and one of the directors testifies that all the capital was paid in cash, which in his belief was deposited in one bank, and complainant’s only evidence is that the deposits at such bank were only $18,000 for the alleged period of organization of the corporation, together with admissions by the two sole stockholders who are both directors that they authorized an indebtedness mentioned in the answer exceeding the capital stock by $5,000.
    3. Corporations—when decree cannot he sustained under Corporation Act, §16. A decree against a corporation and its stockholders cannot be sustained on the theory that the two sole stockholders thereof as officers and directors assented to liabilities in excess of the capital stock and are liable to its creditors under the Corporation Act, §16, where neither the bill nor the decree was drawn on that theory and there is no finding of facts in the master’s report or the decree which tends to show that the decree was entered on the basis of such a liability and the form of the decree is that of a judgment at law.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed February 13, 1913.
    Felsehthal & Beckwith, for appellants, Arthur C. Bachrach, of counsel.
    A. G. Dicus, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

Appellee, having an unsatisfied judgment against the Midland Machine Company, an Illinois corporation, filed a bill in chancery against the corporation and its stockholders. The bill alleges that the corporation has allowed an execution upon appellee’s judgment to remain unsatisfied for not less than ten days after demand made and a return of nulla bona by the sheriff, and “has ceased doing business leaving debts unpaid;” that Adolph Linick, Aaron J. Jones and Sigmund Fuller owned all the capital stock of the corporation, amounting to $50,000, of which Linick and Jones each held $24,900 in par value and Fuller $200; that said stock was never fully paid; that the corporation fraudulently transferred part of its property and its stockholders appropriated and divided the remainder, and that the corporation had equitable interests “of some nature or kind which ought to be applied to the payment of said judgment.” The bill then propounds a number of interrogatories to be answered under oath by the defendants. A joint and several answer under oath was filed and a replication was filed to the answer. The cause was referred to a master, who heard evidence and reported that appellants Jones and Linick had subscribed for $24,900 each, of the capital stock of the appellant corporation, but had never paid in more than fifty per cent, of the par value thereof, and that under the statute, appellee is entitled to collect his judgment from them. After objections and exceptions to said report had been overruled, a decree was entered approving the master’s report and adjudging that appellee “have and recover of and • from” the corporation and Jones and Linick $1,712 with interest and costs, and have execution therefor.'

It will be observed that both in form and substance, . the bill filed is based upon section 25 of the Corporation Act, which provides that if any corporation shall allow any execution to remain unsatisfied for not less than ten days after a demand made and a return of “no property found,” or shall cease doing business leaving debts unpaid, ‘ ‘ suits in equity may be brought against all persons who were stockholders at the time, or liable in any way for the debts of the corporation, by joining the corporation in such suit; and each stockholder may be required to pay his pro rata share of such debts or liabilities to the extent of the unpaid portion of his stock, after exhausting the assets of such corporation.” In Parmelee v. Price, 208 Ill. 544, 557, it was said that this statute “provides a remedy in the nature of a creditor’s bill. ’ ’ In such a suit, the usual rule applies as to the effect of sworn answers in chancery, viz: that “when the complainant requires the answer of a defendant under oath, and he so answers, it can be only overcome by the evidence of two witnesses, or by the evidence of one and circumstances ■ equal in weight to that of another.” Merchant’s Nat. Bank v. Lyon, 185 Ill. 343.

By their sworn answer to the bill and to the specific interrogatories therein, appellants stated in substance that originally Jones and Linick each owned 249 shares and Faller 2 shares; that Faller transferred his shares to Jones; that all of said shares were paid for in full; that Linick was the president and Jones vice-president and secretary of the corporation and that both were directors; that the property of the corporation consisted mainly of fixtures and other property located in ■ leased buildings in Chicago and St. Louis; that two of said buildings were destroyed by fire; that on November 28, 1905, all but one of its remaining leaseholds were sold to the Automatic Exposition Company for $35,000 and that during the succeeding eighteen months, the sum of $900 was realized from the last leasehold, and the company then ceased doing business; that at the time of such sale, the company was indebted as follows: to Jones, for money advanced, $17,100 and for salary, $5,200; to Linick, for money advanced, $15,400 and for salary, $5,200; to the First National Bank, $10,000, and to various persons in small amounts, $1,000; that out of the moneys received as above stated the debts due to the bank and other creditors were paid in full and the remainder was applied to the payment of the claims of Jones and Linick. At the hearing before the master, after Jones had testified to all of the foregoing facts in substance, and that the company had lost $35,000 in one of its fires, he also testified on cross-examination as follows: “Our entire capital, $50,000, was paid in, in cash. I had a bank account in the First National Bank, if I remember right. I believe all the money we had was deposited in that bank. As far as I remember, all the capital stock payments were deposited in that bank. I don’t think we used any other bank. It was all paid in in money. We had bought thirty thousand dollars of machinery before the organization. I bought it. It was the same as cash.” Whereupon appellee introduced in evidence a statement of all the deposits of the appellant Corporation in the First National Bank during the period from July '31, 1902, to September 30, 1902, which showed deposits of $4,968.72 on the first two days of this period, and other amounts aggregating about' $13,000 during the remainder of the period, or approximately $18,000 in all. Aside from the admissions of both Jones and Linick that they had authorized the indebtedness mentioned in their answer (which indebtedness • exceeded the capital stock by over $5,000) this bank statement was the only evidence offered by the appellee in support of the allegations of the bill of complaint, and forms the sole basis for the decree.

If it be assumed that the bank statement covered the period of the organization of the- company (of which there is not the slightest evidence) and if such • bank statement can be considered equal in weight to the evidence of two witnesses (which may well be doubted, when it is considered in connection with other facts and circumstances in evidence), still it only proves, at best, either that Jones was mistaken in saying that all the capital was deposited in that bank, or that he was testifying falsely as to that fact. In view of the fact that he testified that he bought thirty thousand dollars’ worth of machinery, which manifestly could not be paid for out of a total bank account of only eighteen thousand dollars, it is quite as reasonable to -conclude that he was honestly mistaken in this particular as that he was wilfully testifying to a falsehood. But even if the latter conclusion be accepted, and if it be further conceded that the whole testimony of the witness Jones may be disregarded under the rule of falsus in uno falsus in omnibus it does not follow that appellee was thereby relieved from the necessity of proving the allegations of his bill of complaint and of overcoming, by evidence of some kind, the sworn answers of the other two defendants. “The effect of a negative form of issue in cases involving charges of fraud is not to relieve the party making such charge of the burden of introducing any proof, but the law will be satisfied with a less quantity of proof.” Prentice v. Crane, 234 Ill. 302. Suspicion, doubt and incredulity are not evidence. Something more substantial than mere conjecture is required to establish the truth of even a negative averment. We think the evidence was clearly insufficient- to sustain the finding that the capital stock of the appellant corporation was less than half paid for.

It is also urged that even if the decree cannot be sustained on the theory of a proved liability for unpaid stock, it should not be reversed because it appeared that Jones and Linick, as officers and directors of the appellant corporation, assented to liabilities in excess of the capital stock, and are therefore liable to its creditors under the provisions of section 16 of the Corporation Act. It is a sufficient answer to this contention to say that neither the bill nor the decree was drawn upon any such theory, nor is there any finding of facts in the master’s report or the decree tending to show that the decree was entered upon the basis of such a liability. The liability of directors and officers of a corporation under that section “is in the nature of security to all the creditors of the corporation,” and “constitutes a fund for the benefit of all the creditors who are entitled to share in it, in proportion to the amount of their debts.” Woolverton v. Taylor, 132 Ill. 197. The decree does not purport to find and declare the existence of such a liability or fund, nor to distribute the same among the creditors. It may also be added that the form of the decree is that of a judgment at law instead of a decree in chancery, and to the extent that it gives judgment against the appellant corporation it does not even follow the report and recommendation of the master, although expressly approving the same.

For the reasons indicated, the decree of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    John F. Devine, Administrator, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 17,825.
    1. Carriers—injury to passenger riding on steps of crowded car. Where plaintiff’s intestate was a passenger on a crowded excursion train and forced to sit on the steps of a car, and while stretching out his leg was caught by a girder and killed, and it is not shown that he had knowledge or means of knowledge of the existence or location of the girder, it cannot be held as matter of law, nor found as conclusion of fact, that he did not exercise that degree of care for his own safety which a reasonably prudent man would have exercised under like cifcumstances.
    2. Carriers—contributory negligence of passenger question of fact. Standing on the steps of a moving railway car although prima facie evidence of negligence, is not negligence, under all circumstances, per se and as matter of law, and unless the implication of negligence necessarily arises, the question is one of fact, depending on whether or not the passenger assumed a dangerous position from a reasonable excuse or necessity under all the circumstances.
    3. Carriers—when passenger guilty of contributory negligence. Where a passenger on a railroad, without any reasonable excuse or necessity and without notice to the carrier, voluntarily assumes a position or does some act which necessarily exposes him to danger under ordinary conditions such as he may reasonably expect to exist, and such facts are proved as will charge him with knowledge of the dangers incident thereto, his want of ordinary care for his own safety will preclude him from recovering damages for any injury thereby occasioned.
    4. Carriers—operating train close to obstructions. It is the duty of a carrier to exercise the highest degree of care consistent with the character and mode of conveyance and the practical operation of its business, to prevent an accident to passengers, and operating a crowded train so near to fixed objects and in such way as to be dangerous to a passenger using ordinary care is not a fulfilment of such duty.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. E. M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed February 13, 1913.

      Winston, Payne, Straws & Shaw, for appellant; Silas H. Straws and Walter H. Jacobs, of counsel.
    Delbert A. Clithero and Will J. Bell, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

By this appeal the appellant railroad company seeks to reverse a judgment recovered against it for $7,500 •for negligently causing the death of the plaintiff’s intestate, William H. Buhle, while riding as a passenger on one of appellant’s excursion trains going from Chicago to a picnic at Dellwood Park, on the afternoon of Saturday, July 31, 1909. The train consisted of fourteen coaches, mostly of the vestibule type, with seats for 964 passengers. There were 1,246 passengers aboard the train. The day was warm and bright and many of the passengers rode on the platforms and steps, the vestibules being left open. Buhle boarded one of these cars, about the middle of the train, at the Union station in Chicago, and stood in the aisle until the train stopped at Halsted street to take on more passengers, when he stepped to the front platform of the car, expecting to meet some friends. On attempting to re-enter, after the train started, he found that the door had been locked by the conductor. The rear platform of the car ahead of him was filled with passengers. At one side of the platform on which he was then standing, three women were seated upon the steps, and on the top step at the other side, a man named Clarke was sitting. Buhle touched Clarke on the shoulder and asked him to “move over.” Clarke did so and Buhle and a man named Clare took seats on the lower steps, Buhle sitting on the second step with his feet on the first or lowest step. As he sat down, he stretched out one leg to pull up his trousers over his knee. His outstretched foot was caught by the edge of an iron girder forming part of the superstructure of a low bridge spanning a subway in Throop street, and he was dragged from the steps to the ground, receiving injuries from which he died. The top of the girder was four feet above the level of the rails, and the cars passed about eight inches from its gusset plates.

It is contended that the deceased was guilty of con-. tributory negligence in assuming a dangerous position on the steps of the car and extending his foot beyond the outer line or body of the car while riding in that position. A material distinction is recognized in the authorities upon this question, between cases in which a passenger, without any reasonable excuse or necessity, and without notice to the carrier, voluntarily assumes a position or does some act which necessarily exposes him to danger under ordinary conditions such as he may reasonably expect to exist, and cases in which some necessity or reasonable excuse is shown for such action on the part of the passenger. In cases of the first class, it is held that proof of such voluntary and unnecessary conduct on the passenger’s part, together with proof of such facts as will charge him with knowledge of the dangers incident thereto, shows such a want of ordinary care for his own safety as will preclude him from recovering damages for any injury thereby occasioned. In cases of the second class, it is held that if there is evidence tending to show any reasonable excuse or necessity for such conduct, then the question of contributory negligence is a question of fact for the determination of the jury from all the circumstances.

The case of Hewes v. Chicago & E. I. R. Co., 217 Ill. 500, is a case of the first class. There a passenger remained standing upon the platform, though there was ample room inside the car, and as the train approached a station, instead of waiting for the train to stop, he stepped down upon the lowest step, grasped the hand-rails with both hands, and while the ear was still two hundred feet away from the station, swung his body “out into the darkness” in order to alight quickly when the train stopped. As he did so, he was struck by a cattle-guard fence and injured. It was held that he was guilty of contributory negligence preventing a recovery. In the opinion filed, however, the court recognizes the distinction between snch a case and cases “where passengers have been injured from such obstructions while riding in dangerous positions upon trains which were overloaded and where they were unable to obtain upon the train a place of safety,” by saying that in the latter class of cases, “a different principle controls.” Ibid. pp. 503, 504.

The case of Petersen v. Elgin, A. & S. Traction Co., 238 Ill. 403, is an illustration of the second class of cases. There a passenger rode on the lowest step of a car in a crowded excursion train, holding on by the hand-rails, and was hit by a train going in an opposite direction on a parallel track; and it was held that under such circumstances, it was a question for the jury whether the passenger was guilty of contributory negligence, even though it appeared from the evidence that he might, perhaps, have pushed his way through the people standing on the platform to a place of safety inside the car. The court in that case quotes with approval the following language from the opinion in the case of Chicago & A. R. Co. v. Fisher, 141 Ill. 614: “We know from common sense and ordinary observation and experience that under some circumstances it is culpable negligence to stand or sit on the platform or steps of a moving car and that under other circumstances it is not, and unless the case be one where the implication of negligence necessarily arises, it follows that what in a given set of circumstances would be negligence and what would be an exercise of ordinary care are conclusions of fact, to be deduced from the circumstances of the particular case.”

The case of Lake Shore & M. S. R. Co. v. Kelsey, 180 Ill. 530, was a similar case where a boy, riding in the same way, was struck by a car standing upon a side track. The court held that it was a fair question for the jury whether the boy was guilty of contributory negligence, saying, in part (p. 532): “Standing on the steps of a railway car when the train is in motion, although prima facie evidence of negligence, is not negligence, under all circumstances, per se and as a matter of law. Chicago & Alton R. Co. v. Fisher, 141 Ill. 614, and cases there cited. Nevertheless, riding on the lower step of the platform of an ordinary railway train going at a high rate of speed would doubtless be regarded as gross negligence in a passenger, unless some good reason appears for so doing other than voluntary choice. But whether it is negligence or not is a conclusion of fact from the circumstances. * * * There is testimony tending to show that the platform was crowded when the boy boarded the car * * * in other words, that he may have been there from necessity.” The cases of Chicago & W. I. R. Co. v. Newell, 212 Ill. 332, and Such v. Aurora, E. & C. R. Co., 150 Ill. App. 329, are similar in principle.

In the present case, it was shown that the door leading into the car was locked and that the platform of the car ahead was crowded. The proof also shows that Buhle attempted to go inside the car, but was prevented by the locked door. These facts tend to prove that remaining on the platform was not a matter of choice with him, but of necessity. It was further shown that the train was moving rapidly, and in view of the well known difficulty of maintaining a standing position on the platform of a swiftly moving railway car, his act and that of his companion in taking seats upon the steps would seem to be reasonably prudent, under the circumstances.

It is insisted, however, that in stretching out his leg while seated there, Buhle was carelessly and even recklessly unmindful of his duty to use such care as his situation required. But this was a most natural thing to do, and was an act fraught with no danger whatever under ordinary circumstances. Whether it was negligence per se depends, therefore, upon his knowledge, or means of knowledge, of the existence and location of the iron girder. There is no evidence that he had any actual knowledge. There was no gate or other barrier to serve as a warning. There was evidence that one of the trainmen warned the women who sat on the steps on the other side of the platform, but none that Buhle or his companions were thus warned. There was also evidence that the train passed three or four similar girders after leaving Halsted street and before it reached the girder at Throop street, but the top of the girders was only a little higher than the floor of the cars and there is no evidence tending to show that the girders would be likely to attract the attention of passengers in passing, nor that the train in fact passed any of such girders after Buhle took his seat upon the steps. Furthermore, the platforms being vestibuled, the view of Buhle was obstructed in all directions except straight out through the open door of the vestibule, and therefore any object which the train passed as close as these girders were to the train, would only appear in sight for an instant to those who were seated upon the platform or steps. Under these circumstances, we think it cannot be held, as a matter of law, or found, as a conclusion of fact, that Buhle did not exercise that degree of care for his own safety which a reasonably prudent man in the same situation and with the same knowledge or means of knowledge, would have exercised under like circumstances. We do not regard the case of Chicago Terminal Transfer R. Co. v. Schiavone, 216 Ill. 275, as an authority to the contrary. In that case the relation between the defendant and the injured man was that of master and servant, and the court said (p. 279): “The injury took place in the daytime and the fence was in plain view from'the top of the car, and had the deceased been in the exercise of due care for his own safety it seems clear he would have observed the proximity of the fence to the moving car. It also seems clear that negligence, under the circumstances disclosed by the evidence, ought not to be imputed to the appellant.” The court also states that under the evidence in that case, the defendant did not undertake to carry the man upon its flat-car, either as a passenger or as a workman in its employ, and therefore could not be held liable for an injury sustained by him while upon the car. For these reasons, that case is clearly distinguishable from the present case, even though the manner in which the accident happened may be similar in some respects.

It is also claimed that there is no proof of negligence on the part of appellant. The principal charge of negligence in the declaration is the negligent management and operation of the train in passing the girder above mentioned, in view of the crowded condition of the train and the consequent necessity on the part of the plaintiff’s intestate, of riding in a position where he was exposed to the danger of being injured by the girder. We think this charge was sustained by the preponderance of the evidence. In Pell v. Joliet, P. & A. R. Co., 238 Ill. 510, where a passenger sitting next to an open window with his arm and hand resting upon the window sill and slightly outside, was injured by another car passing in close proximity, the court said (p. 517): “It was the duty of the defendant to exercise the highest degree of care consistent with the character and mode of conveyance and the practical operation of its business to prevent an accident to the plaintiff while riding upon the car, and it would not be a fulfillment of that duty to operate the car so near to fixed objects or passing cars as to be dangerous to a passenger using ordinary care.” The same is true in this case.

The judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Frank Miller, Defendant in Error, v. National Automobile Sales Company, Plaintiff in Error.
    Gen. No. 17,847.
    1. Automobiles—when corporation owning not liable for tort of officer. Where the president of a corporation engaged in sell- • ing automobiles was driving one of its cars to his home after business hours and ran into a truck, injuring plaintiff, and it is not shown that he was at the time engaged in the business of the corporation or that the act done was in any way within the scope of his employment, the corporation is not liable.
    2. Master and servant—tort of servant. To hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course- of the servant’s employment.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed February 13, 1913.
    Israel Cowen, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

The plaintiff, Frank Miller, sued the National Automobile Sales Company in the Municipal Court and recovered a judgment for $500 for damages for personal injuries sustained through the alleged negligence of the defendant. It appears from the evidence that defendant was in the business of selling automobiles; that its place of business was on Michigan avenue, near Twelfth street; that J. D. Wiener was its acting president and business manager; that at the close of business, about 5:30 p. m. on May 5, 1911, Wiener, accompanied by his son and daughter, the latter of whom was the secretary of the company, started for his home in one of defendant’s machines; that Wiener drove the car south on Michigan avenue; that plaintiff was driving a truck drawn by two horses along Twenty-third street, and while crossing Michigan avenue the automobile driven by Wiener ran into the truck and injured the plaintiff. The ownership of the automobile by the defendant was admitted, and there is no evidence in the record tending to refute the statement of Wiener that “I quit the business about 5:30; I took a machine that was in running order for the purpose of taking myself, my daughter and my son home to our dwelling and to have a drive.”

The question is thus presented whether the owner of an automobile is liable for an injury caused by the alleged negligence of an agent who is in charge of the machine under the circumstances above stated. To hold the master liable for a tort committed by his servant it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant’s employment.

Slater v. Advance Thresher Co., 97 Minn. 305, is a case which is very similar in its facts to the case here presented. There a corporation engaged in the manufacture and sale of farm machinery furnished its general agent with an automobile which he used and operated, whenever convenient, to facilitate the discharge of his duties. One day, after business hours, the general agent and the general manager of the corporation took the machine out for a purpose entirely personal to themselves and wholly distinct from the business of the corporation, and drove the same so negligently (as it was claimed) as to frighten the plaintiff’s horses, causing them to run away, and injuring him. He recovered a judgment, which was reversed on appeal, and remanded with directions to enter a judgment for the defendant. In the opinion of the court most of the reported cases upon this question are cited, and the court said, in part (p. 308): “The doctrine of the liability of the master for the wrongful acts of his servant is predicated upon the maxims ‘respondeat superior’ and ‘ qui facit per alium facit per se’. In fact, it rests upon the doctrine of agency. Therefore, the universal test of the master’s liability is whether there was authority, expressed or implied, for doing the act; that is, was it one done in the course and within the scope of the servant’s employment? * * * A master is not liable for every wrong which the servant may commit during the continuance of the employment. The liability can only occur when that which is done is within the real or apparent scope of the master’s business. * * * A master is not responsible for any act or omission of his servant which is not connected with the business in which he serves him and does not happen in the course of his employment. * * * If the act be done while the servant is at liberty from the service and pursues his own ends exclusively, the master is not responsible. * * * If the servant step aside from his master’s business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously expressed, is the uniform doctrine laid down by all authorities.”

Another case, which is quite similar in its facts, is that of Clark v. Buckmobile Co., 107 App. Div. (N. Y.) 120. In that case the general manager of an automobile company “took a day off” and went out of town. On his return he telephoned from the depot requesting another employee to come to the depot for him with an automobile. This was done, and on the way from the depot an accident occurred. A judgment based upon this evidence was reversed and the cause remanded for a new trial upon the ground, as stated in the opinion of the court, “that in order to establish liability the persons must not only be general employees of the defendant, but must be employed in the defendant’s business and not merely in their own recreation and pleasure at the time the injuries are caused.” To the same effect, in principle, are the following cases: Danforth v. Fisher, 75 N. H. 111; Lotz v. Hanlon, 217 Pa. St. 339; Sheridan v. Charlick, 4 Daly 338; Stone v. Hills, 45 Conn. 44; Bard v. Yohn, 26 Pa. St. 482.

There being no evidence in the record tending to show that at the time of the accident Wiener was engaged in the business of the defendant, or that the act done was in any way within the scope of his employment, the judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Gridley

text:
    George J. Stamatakos and Tom Stamatakos, copartners, Appellants, v. John F. McCaffrey and John P. Geary, Appellees.
    Gen. No. 17,712.
    1. Injunctions—motion to dissolve preliminary. A motion to dissolve a preliminary injunction based on a want of equity apparent on the face of the hill has the same effect as a demurrer to the hill, and the facts well pleaded are to he taken as true.
    2. Appeals and ebbobs—appealable orders. An order dissolving a preliminary injunction is interlocutory and not appealable. 1
    3. Injunctions—when bill may be dismissed on sustaining motion to dissolve temporary injunction. Where the only relief sought is an injunction, the court on sustaining the motion to dissolve the temporary injunction may properly dismiss the bill, but where other relief is sought which may he granted upon final hearing, the hill should be retained.
    4. Equity—bill should not be dismissed when amendable. Bill should not be dismissed on the ground of want of equity on its face unless it is manifest that no amendment can help it.
    5. Equity—when error to dismiss creditor's bill. Where complainant, a judgment creditor of defendant, filed a creditor’s bill seeking a discovery of defendant’s assets, and a temporary injunction is granted, it is error when the injunction is dismissed on motion of defendant to also dismiss the bill.
    Appeal from the Circuit Court of Cook county; the Hon. Richajrd S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed February 13, 1913.
    Richard H. Peterson, for appellants.
    No appearance for appellees.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On December 16, 1910, appellants filed a creditor’s bill in the Circuit Court of Cook county against Mc-Caffrey. The bill contained the usual averments in bills of this nature. It set forth recovery of a judgment in the Municipal Court of Chicago on May 17, 1910, against McCaffrey, “impleaded with one John P. Geary,” for the sum of $74, the issuance of an execution, and the return of the execution “no part satisfied” by the bailiff. The bill alleged that on September 17, 1910, complainants caused McCaffrey to come before the Municipal Court on a citation, and that upon the hearing thereof McCaffrey testified that he was employed by the city of Chicago as an inspector in its water department, and was compensated by said city at the rate of $100 per month, and that he refused to turn over said salary or any part thereof in satisfaction of said judgment. The bill further alleged that at the time of the recovery of the judgment McCaffrey was and for a long time prior thereto had been employed by said city as an inspector in its water department, and that in the course of said employment the city became indebted to him in a large amount; that said city is now indebted to him in the sum of more than $100 for services rendered; that by reason of the city being a municipal corporation it is not possible to reach said sum by garnishment proceedings and because of this fact complainants “do not make the city of Chicago a party defendant to this bill.” The bill further alleged that McCaffrey has other debts due him to a large amount, for which he holds securities and evidences, has divers goods and articles of personal property which belong to him, or in which he is beneficially interested, has money deposited in some bank or elsewhere to his credit, is beneficially interested in real estate or in the rents, issues and profits.thereof, and has equitable interests and things in action of the value of more than $100 which ought to be applied to the payment of said judgment.

The bill prayed that McCaffrey set forth and discover the nature, situation, amount and value of all his property, interests and effects, and whether he has not a debt due him from said city in the sum of $100 or more, and whether he has not other debts due him, etc., that he-be decreed to pay the amount due on said judgment, that he be enjoined, etc., and that a receiver be appointed, etc.

On the day the hill was filed the court, on complainants’ motion, granted a preliminary injunction against McCaffrey enjoining him “from selling, assigning, transferring, delivering, negotiating, discharging, receiving, collecting, incumbering, or in any way disposing of or intermeddling with, any debts or demands due to him, or any bills, drafts, bonds, checks, * * * whether in his possession or not.” The injunction writ was served upon him on December 20, 1910, and on February 2, 1911, he filed a special demurrer to the bill, which demurrer was sustained by the court, on the ground that Geary was not made a party defendant, and complainants were given leave to amend their bill by making Geary a party, which they did, and Geary was served with summons but did not enter his appearance.

On April 3, 1911, complainants moved the court for a rule upon McCaffrey to show cause why he should not be adjudged to be in contempt for violating the injunction, which motion was continued, and on April 25,1911, McCaffrey made a counter motion to dissolve the preliminary injunction upon the face of the bill, and after arguments of counsel the court sustained the motion and dissolved said injunction and also entered a decree, on McCaffrey’s motion, that the bill be dismissed at complainants’ costs. Complainants have appealed to this court assigning as error that the court erred in dissolving said preliminary injunction and in dismissing complainants’ bill. No appearance has been entered in this court by appellees.

A motion to dissolve a preliminary injunction based on a want of equity apparent on the face of the bill has the same effect as a demurrer to the bill, and the facts that are well pleaded in the bill are to be taken as true. White v. Y. M. C. A., 233 Ill. 526; Bennett v. McFadden, 61 Ill. 334. An order dissolving a preliminary injunction is interlocutory, and not final, and an appeal does not lie from such order. Cahill v. Welch, 208 Ill. 57; Williams v. Chicago Exhibition Co., 188 Ill. 19, 26. If the only relief sought by the bill is an injunction, the court, on sustaining the motion to dissolve the temporary injunction, is not required to retain the same for hearing of pleadings and proofs, but may properly dismiss the bill. Cahill v. Welch, supra; Field v. Village of Western Springs, 181 Ill. 186; American Live Stock Commission Co. v. Chicago Live Stock Exchange, 143 Ill. 210, 240. But if relief other than the injunction is sought the rule is different. Titus v. Mabee, 25 Ill. 257; Cahill v. Welch, supra. When an injunction is collateral to the main object of a bill, and other relief is sought which may be granted upon final hearing, the bill should not be dismissed on dissolution of the injunction, but should be retained and proceed to such final hearing. Goddard v. Chicago & N. W. R. Co., 202 Ill. 362, 365. And a bill should not be dismissed on the ground of want of equity on its face unless it is manifest that no amendment can help it. Thomas v. Adams, 30 Ill. 37; Leonard, v. Arnold, 244 Ill. 429, 433.

We are of the opinion that the trial court erred in dismissing the bill. It is evidently brought under the provisions of section 49 of the Chancery Act. It seeks, among other things, a discovery from the defendants, and we think the allegations of the bill are sufficient for that purpose. No reason is perceived why the defendant, McCaffrey, should not be required to answer the bill. First Nat. Bank of Sioux City v. Gage, 79 Ill. 207; Singer & Talcott Stone Co. v. Wheeler, 6 Ill. App. 225; Wren v. Dooley, 97 Ill. App. 88. Whether or not the court erred in entering the interlocutory order, dissolving the temporary injunction, which was in aid of the relief sought by complainants, is a question which is not before us.

The decree of the court below in dismissing the bill is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.


text:
    A. H. Bell, Trading as A. H. Bell & Company, Defendant in Error, v. Union Pacific Railroad Company, Plaintiff in Error.
    Gen. No. 17,731.
    1. Carriers—question for jury. In an action for damages from injury to plaintiff’s cattle while being shipped by defendant carrier at a time when there was a heavy storm, it is for the jury to decide from the evidence whether defendant was guilty of negligence and whether the negligence, if any, was one of the proximate causes of the damage.
    2. Carriers—act of God. An unusually heavy snowstorm of such violence as to obstruct the moving of carrier’s trains falls within the exception of the act of God, and the carrier, if guilty of no contributory negligence, is exonerated from liability for a loss.
    3. Cashiers—act of God. The act of God which excuses a carrier must be the sole cause of the loss, and where the negligence of the carrier mingles as an active and co-operative cause, it is responsible.
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed February 13, 1913.
    Brode B. Davis, for plaintiff in error; John M. Rankin and Edmund P. Kelly, of counsel.
    Charles A. Butler, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Defendant in error, plaintiff below, commenced an action of the fourth class in the Municipal Court of Chicago against plaintiff in error, defendant below, to recover for damage to seventy-three head of cattle shipped by plaintiff from Rock River, Wyoming, to South Omaha, Nebraska. Plaintiff claimed damages in the sum of $770.36, and it was stated that the same were incurred “by reason of the failure of said defendant to exercise the care required of it of the said cattle while in its possession, custody and control.” The case was tried before a jury, resulting in a verdict for plaintiff for $600, on which verdict the court, on. June 10, 1911, entered judgment.

It appears from the evidence that the cattle were loaded into three stock cars at Rock River, Wyoming, on the evening of Sunday, October 21, 1906; that the cattle were fed and watered before loading and were then in good marketable condition; that a train of defendant, of which the three cars were a part, arrived without delay at Cheyenne, Wyoming, on October 22nd; that plaintiff traveled on the train to look after the cattle; that after leaving Cheyenne the train enconntered a very severe snow storm, and there were delays before reaching Potter, Nebraska, on the night of October 22nd or early morning of October 23rd; that although the train was then unable to advance from Potter on account of the storm, the cattle were not there unloaded for rest, food and water until Wednesday noon, October 24th, having been in said cars without food or water for about sixty-six hours; that at the time of said unloading at Potter, plaintiff examined the cattle and found that they looked gaunt and worn, and that three of them had died in the cars; that the cattle remained in the yards at Potter until the evening of October 25th, when they were again loaded into the cars and arrived at the stock yards at South Omaha, Nebraska, on Sunday morning, October 28th; that there was ho market for their sale on that day, but that they were sold on Monday morning, October 29th, for their fair market value in their then condition, and that prior to this sale the cattle were examined and were found to have suffered from exposure to the storm, and that many of them were lame and bruised. There was testimony showing that had they arrived at South Omaha in good marketable condition they could have been sold for at least fifteen cents per hundred-weight more than the amount for which they were sold.

It is claimed by counsel that defendant is not liable for the reason that the damage to the cattle was not caused by defendant’s negligence, but by a severe and unanticipated storm, which amounted to an act of God. It is claimed by counsel for plaintiff that, under the facts in evidence, the jury were warranted in finding the defendant guilty of negligence in not properly caring for the cattle,, for the reason that the snow storm was not the proximate or immediate cause of the damage. There was testimony showing that the snow storm became very severe while the train was en route between Cheyenne and Potter, and that the conductor of the train could have had the cattle unloaded, fed and watered at a station called Dix, and at other stations between Cheyenne and Potter; that shortly after the train arrived at Potter, plaintiff requested the conductor of the train there to unload the cattle, but that the conductor refused so to do until about noon of October 24th, and that an unloading when first requested could have been accomplished, notwithstanding the storm. We are of the opinion that it was for the jury to say, under all the evidence, whether or not the defendant was guilty of negligence which contributed to the damage to the cattle, and we discern no reason for disturbing its conclusion in this regard.

“An unusually heavy or severe storm of snow, of such violence as to obstruct the moving of the carrier’s trains or other vehicles, falls within the exception of the act of God, and the carrier, if guilty of no contributory negligence, will be exonerated from liability for a loss or injury thereby occasioned.” 1 Hutchinson on Carriers (3rd Ed.), sec. 285. “The act of God which excuses the carrier must not only be the proximate cause of the loss, but the better opinion is that it must be the sole cause. And where the loss is caused by the act of God, if the negligence of the carrier mingles with it as an active and co-operative cause, he is still responsible.” Providence Washington Ins. Co. v. Western Union Tel. Co., 153 Ill. App. 118, 122. “If the damage is caused by the concurring force of defendant’s negligence and some other cause for which he is not responsible, including the act of God, * * * the defendant is nevertheless responsible if his negligence is one of the proximate causes of the damage.” Wald v. Pittsburg, C. C. & St. L. R. Co., 162 Ill. 545, 551; Sandy v. Lake St. El. R. Co., 235 Ill. 194; Tate v. Missouri Pac. Ry. Co., 157 Ill.App. 105. And whether the carrier was guilty of negligence, and whether that negligence was one of the proximate causes of the damage, are questions for the jury. Louisville & N. R. Co. v. Cunningham, 88 Ill. App. 289; Voudrie v. Southern Ry. Co., 155 Ill. App. 279, 280.

Counsel for defendant also contend that the allegations contained in plaintiff’s statement of claim and the evidence introduced do not support the judgment. After an examination of the record we are of the opinion that the contention is without merit.

Nor do we think that the oral instructions of the court to the jury were misleading and conflicting, as contended for by counsel.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Cooke Brewing Company, Defendant in Error, v. M. J. Mitchell, Plaintiff in Error.
    Gen. No. 17,770.
    1. Appeals and errors—statement of facts. Under sub-section 6 of section 23 of the Municipal Court Act, where a statement of facts containing in narrative form the testimony given, with objections and exceptions, is certified by the trial judge as “a correct statement of the evidence heard in. said cause and of the facts appearing upon the trial thereof,” the instrument must be regarded as the substantial equivalent of the “stenographic report of the evidence and proceedings at the trial.”
    2. Appeals and errors—hill of exceptions. Where a bill of ex- ' ceptions is presented to the trial court at such time that it can be filed within the time provided by the order of the court, the party will not be prejudiced by the neglect or delay of the judge to sign the bill until after the expiration of the time fixed, and if the date of presentation appears on the bill when signed and sealed, it can be ordered filed nunc pro tunc as of such date.
    3. Appeals and errors—substantial errors. Under sub-section 7 of section 23 of the Municipal Court Act, where the evidence is conflicting, no judgment shall be reversed unless the Appellate Court is satisfied from the stenographic report that the judgment is contrary to the law and the evidence, or that it resulted from substantial errors of said court directly affecting the matters at issue.

      Error to the Municipal Court of Chicago; the Hon. John E. Cavebly, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed February 13, 1913.
    James E. Glass and R. B. Clark, for plaintiff in error.
    Harry A. Daugherty, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On April 14, 1911, defendant in error, plaintiff below, commenced an action of the fourth class in the Municipal Court of Chicago against plaintiff in error, defendant below. Plaintiff’s claim was on a promissory note, signed by defendant, for $800, dated February 20, 1895, payable on or before two years after date to the order of “M. Madden,” with interest at the rate of five and one-half per cent, per annum, payable semi-annually. On the back of the note were endorsements as to nine payments of interest—the last of which endorsements was “interest paid to March 26, 1902.” Underneath was the endorsement “M. Madden”, and underneath that was the further endorsement: “September 9th, paid on this note three hundred dollars”. The defendant filed an affidavit of merits in which he stated that he verily believed he had a good defense, upon the merits, to the whole of the plaintiff’s demand; that his defense was (1) that the note had been fully paid and satisfied, (2) that the same had not been transferred to plaintiff for any consideration, (3) that the same had been placed with plaintiff by Madden for safe keeping after maturity, but that at no time had it been endorsed or transferred by him. The case was tried before the court without a jury, resulting in a finding in favor of plaintiff and the assessment of plaintiff’s damages at $748.85, upon which finding judgment was entered. Defendant seeks by this writ of error to reverse the judgment.

The judgment was entered on July 22, 1911, and on that day the court ordered that the amount of the stay of execution bond be fixed at $1,000 and that the same be filed within thirty days, and further ordered that the defendant have sixty days in which to file a “bill of exceptions.” The bond was filed, and approved within said thirty days. Before the expiration of said sixty days, to-wit: on September 20, 1911, defendant presented to the trial judge an instrument, which is described by the clerk of the court in the transcript before us as a “Statement of Facts/'’ and the trial judge over his signature endorsed it as follows: “Presented to me for my signature this 20th day of September, A. D. 1911.” Subsequently, as appears from the instrument, the trial judge over his signature endorsed it: “Signed and placed on file by me this 28th day of September, A. D. 1911, as of Sep. 20, 1911,” and the clerk endorsed it as filed “Sept.'28, 1911,” It is contended by counsel for plaintiff that the so-called “Statement of Facts” cannot be considered by this court, inasmuch as it was not filed within the time, required, and no order was procured allowing it to be filed nunc pro tunc as of September 20th. We cannot agree with this contention. ‘ ‘ The rule is, that if a bill of exceptions is .presented to the trial judge at such time that it can be filed within the time provided by the order of the court, the party will not be prejudiced by the neglect or delay of the judge to sign the bill until after the time fixed for that purpose has expired. If the date of presentation appears on the bill when it is signed and sealed it can be filed nunc pro tunc as of the date of such presentation. * * * As a matter of proper practice, * * * an order should have been procured filing it as of that date. At the most, however, the failure to do this was only an irregularity and does not render the bill of exceptions void. ’ ’ T. E. Hill Co. v. U. S. Fidelity & Guaranty Co., 250 Ill. 242, 245, 247.

It is further contended by counsel for- plaintiff that the so-called ‘Statement of Facts,” as certified to by the trial judge, is insufficient, inasmuch as the same is neither ‘ ‘ a correct statement * * * of the facts appearing upon the trial thereof and of all questions of law involved in such case and the decisions of the court upon such questions of. law,” nor “a correct stenographic report of the proceedings at the trial,” as provided in sub-section 6 of section 23 of the Municipal Court Act, relating to the review of the final orders and judgments of that court in cases of the fourth class and certain cases of the fifth class. The trial judge certified “that the above and foregoing is a correct statement of the evidence heard in said cause and of the facts appearing upon the trial thereof;” and it is argued by counsel that the certificate does not recite that the “above and foregoing” is a correct statement of all the evidence heard and of all the facts appearing upon the trial.

The instrument which is so certified to by the trial judge purports to set out the proceedings on the “hearing” before the court without a jury. It states that the plaintiff introduced the note and thereupon “rested.” The original note so introduced is physically attached at an appropriate place to the page. The instrument then states that the defendant “introduced the following evidence”. It then states in narrative form what the defendant, M. J. Mitchell, testified to, over objection and exception of plaintiff, upon direct examination, and what he testified to on cross-examination. It then states in narrative form what Michael Madden, a witness for defendant, testified to on direct examination, over objection and exception, and what on cross-examination, and what George Cooke, a witness called by plaintiff in rebuttal, testified to on direct examination and on cross-examination. It then states that plaintiff introduced, over objection and exception, a letter-press copy of a certain letter mentioned by Cooke in his testimony. The copy so introduced is physically attached to the page. The instrument then states “which was all the .evidence given in saiiA cause, ’ ’ and then follows the certificate of the triaÁ judge, above mentioned. We are of the opinion that it ‘sufficiently appears that the instrument contains all the evidence heard and all the facts appearing at the trial upon which the court rendered its findings, and that the contention of plaintiff’s counsel is without merit. “The instrument must be regarded as the substantial equivalent of the ‘stenographic report of the evidence and proceedings at the trial’ * * Samuels v. Life Ass’n of America, 152 Ill. App. 245, 246. See also Zustovich v. Morrison, 151 Ill. App. 526; Lewis v. Richheimer & Co., 157 Ill. App. 231, 233; International Forwarding Co. v. Rosati & Co., 156 Ill. App. 339, 341.

Counsel, for defendant contend that the finding is manifestly against the weight of the evidence. It appears from the so-called statement of facts that plaintiff offered the note in evidence and rested its case. The defendant then testified in his own behalf that Madden, the payee, was his brother-in-law; that Madden had boarded with him since about 1888; that “soon .after” the date of the last interest payment, March 26, 1902, (he did not say when) he entered into an agreement with Madden for the payment of the balance due by furnishing board and room to Madden at the rate of $25 per month; that payment of said note “had been made by being taken out in board and rooming” (he did not say when); that when the note had been so paid he did not ask Madden to surrender it, did not make any effort to obtain possession of it, and did not know where it was; that he did not know in whose handwriting the body of the note was (signature excepted), but that he “thought perhaps it might be his wife’s;” that he heard nothing further about said note until the year 1911, when he received a letter from an attorney for plaintiff demanding payment, that he never knew that said note had been transferred by Madden to anyone; that he never saw the note after the time that the last interest endorsement was made, but that at that time Madden’s name was not endorsed on the note.

M. Madden, the payee, called on behalf of defendant, testified that interest was paid by defendant on the note up to March 26, 1902; that about that date he agreed with the defendant that the balance due on said note should be paid by the defendant’s giving him board and lodging at defendant’s home at the rate of $25 per month; that said balance was so paid in room and board (he did not say when); that “subsequent to” March 26, 1902, (he did not say when) he turned over for “safe keeping” the said note to “one Ryan,” bookkeeper of plaintiff company, from which company he, Madden, as a saloon keeper, was then buying his beer; that at the time he did not owe plaintiff anything, and had no further transactions with plaintiff until “about” the year 1905; that at the time he so turned over the note it did not have his name endorsed thereon, as now appears; that he never endorsed the note, never authorized any person to endorse it for him, and never ratified said endorsement.

George Cooke, president of plaintiff company, testified on behalf of plaintiff in rebuttal that he was president of the company in the year 1904; that Madden was then indebted to plaintiff in the sum of from $300 to $500; that during said year Madden came to his office and delivered said note to him to secure Madden’s account, Madden telling him “to get what he could out of it” and that the note was unpaid, except as shown by the endorsements; that subsequently he gave the note to an attorney of plaintiff to collect, who returned the note to him, together with a letter-press copy of a letter directed to defendant; that said note now is in the same condition as it was at the time Madden delivered the same to him (Cooke), and that said note and account had never been paid.

No useful purpose will be served in commenting upon this conflicting testimony. Suffice it to say, that after a careful review of this case we are not disposed to disturb the finding- of the trial judge, who saw the witnesses on the stand. We cannot say that the finding is manifestly against the weight of the evidence. No objection is made as to the amount of the finding. Neither can we say that the finding and judgment is contrary to the law, or that the court on the trial committed any errors prejudicial to the defendant. “No order or judgment * * * shall be reversed unless the * * * Appellate Court * * * shall be satisfied from said statement or stenographic report * * * that such order or judgment is contrary to the law and the evidence, or that such order or judgment resulted from substantial errors of said Municipal Court directly affecting the matters at issue between the.parties.” Sub-sec. 7, sec. 23, Munich pal Court Act; Dahl v. MacDonald Engineering Co., 141 Ill. App. 187; Hamilton v. Tuttle, 157 Ill. App. 345. The judgment is accordingly affirmed.

Affirmed.