text:
    Samuel M. Williams, Plaintiff in Error, v. Illinois Central Railroad Company, Defendant in Error.
    1. Master and servant, § 537

       — when action by servant for personal injuries is under Federal Employers’ Liability Act. An action to recover damages for personal injuries brought by an employee against his employer, wherein the declaration alleges that the defendant was engaged in interstate commerce and was using its railroad track in such commerce at the time of the injury complained of, is one under the Federal Employers’ Liability Act and not one under the common-law or the State statute.
    2. Workmen’s Compensation Act, § 12* — necessity of averring in action at common law or under statute that defendant has not elected to come under. Without an averment in a declaration, filed by an employee against his employer to recover damages for personal injuries, that the defendant had not elected to operate under the Compensation Act of Illinois, no right of action at common law or under the statute of the State would exist.
    3. Master and servant, § 302a* — when employee assumes risk of employment under Federal Employers’ Liability Act. Under the acts of Congress and decisions of the federal courts, the doctrine of assumption of risk by an employee applies and prevails as at common law under the Federal Employers’ Liability Act, and an employee assumes under that act the risk of his employment except where the violation by the employer of a federal statute contributed to the injury.
    4. Master and servant, § 545* — what allegation with reference to assumption of risk declaration in action under federal aet must contain. Under the Federal Employers’ Liability Act, the declaration in an action to recover damages must contain such allegations as show the plaintiff did not assume the risk of the actual negligence complained of.
    5. Master and servant, § 326*- — when employee assumes risk of danger of overlifting. Where a declaration under the Federal Employers’ Liability Act alleged that the plaintiff was injured while engaged in work with a number of men lifting certain heavy railroad tracks, held that the danger of overlifting was apparent to a reasonable man, and so plain and apparent that plaintiff must be presumed to have known of it and to have assumed the risk.
    6. Master and servant, § 347* — when furnishing insufficient number of men for heavy work not negligence. The mere furnishing of an insufficient number of men to perform certain heavy work upon which an employee was engaged with others is not actionable negligence.
    7. Master and servant, § 363

       — what is patent defect employee is bound to see. The employment of an insufficient number of men to perform certain heavy work in lifting railroad tracks, upon which an- employee was engaged with others, is a patent defect which he was bound to see, under the Federal Employers’ Liability Act.
    8. Master and servant, § 418* — when employee obeying order of foreman is not exempted from Assumption of rislc. Where a declaration under the Federal Employers’ Liability Act alleged that the plaintiff who was a member of a large crew of men engaged in lifting heavy railroad tracks, at the express direction and command of the foreman, put forth and expended his entire strength in lifting said tracks, whereby he was injured, held that all such order amounted to under the allegation was a direction to plaintiff to perform the work which was being carried on in the usual manner, and that same did not exempt him from assumption of the risk, he not being misled by such order.
    9. Master and servant, § 339a* — what is simple tool not exempting employee from assumption of rislc. A pry bar or lifting rod used by an employee in lifting heavy railroad tracks is a simple instrument or tool and not such as to exempt him from assumption of risk.
    10. Appeal and error, § 1306* — when presumed that omission of allegations relieving plaintiff from assumption of rislc in amended declaration was intentional. Where, after demurrer to an original count under the Federal Employers’ Liability Act was sustained for plaintiff’s failure in the count to relieve himself of the question of assumed risk, he filed an amended count also failing to allege his want of knowledge, or such facts as would relieve him from such assumption of risk, held that it must he presumed that such omission in the amended count of these elements was intentional and that he relied upon his right to recover, notwithstanding he may-have known of existing defects and assumed the risk of working thereunder.
    Error to the Circuit Court of Franklin county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 24, 1917.
    W. P. Seeber and Ernest J. Odun, for plaintiff in error.
    Moses Pulverman, for defendant in error; W. W. Barr and 0. E. Feirich, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The plaintiff in error, hereinafter called plaintiff, sought by this proceeding to recover damages from the defendant in error, hereinafter called defendant, on account of injuries sustained by the plaintiff while engaged at work upon defendant’s road. A declaration was filed consisting of two original counts and two amended counts, to each of which a demurrer was interposed and sustained, and it is insisted by counsel for plaintiff that the court erred in sustaining the demurrer to each and every count of this declaration. The amended counts of the declaration are, so far as we have been able to see, substantially the same as the original counts, except that in the amended counts the cause of action is set out more specifically and, so far as we can see, is a restatement of the cause of action in a more perfect manner, and no specific difference has been pointed out by counsel in their argument. In the consideration of the case we will therefore confine ourselves to the amended counts.

The first amended count charges that on November 4, 1913, the defendant was possessed of certain railroad tracks extending from Christopher to Zeigler, and elsewhere in said county and State, and in connection therewith possessed, owned and controlled locomotive engines, railroad cars and other transportation equipment, and was then and there engaged by its agents and servants in transporting freight and passengers over said railroad in said State and from said State to and through various other States of the United States for hire; that a portion of said track located about one mile south of Christopher in said county was in an unsafe condition and repair and required a large number of servants to repair the same so as to permit the defendant to operate its trains over said railroad in the conduct of its business.

It further charges that a number of the servants of the defendant were under the direction and control of one E. I. G-oss, who had full authority to command said servants and supervise and direct the repairs of said railroad; that the readjusting of said tracks at said point was heavy and ponderous work and required the combined strength and efforts of a large number of able-bodied men, of which the said E. I. Gross well knew, or by the exercise of due care should have known; and further avers that the said Gross ordered and directed a section of tracks at said point to be lifted by an insufficient number of men, whereby they were required to expend and put forth their utmost energy and strength, of which the said Gross well knew, or by the exercise of due care should have known, on account of which the- plaintiff, who was then and there a member of said gang, at the express direction and command of the said Gross, put forth and expended his entire strength to lift said tracks at said point, and. in the exercise of due care thereby overtaxed his energy and strength and by reason of the said direction and command of the said Gross his muscles, tendons and blood vessels were ruptured and impaired, resulting in permanently destroying his nervous system and causing paralysis in his limbs and organs of his body, rendering him sick, and to the damage of the plaintiff of $10,000.

The second amended count of the declaration is the same as the first, except that he charges defendant negligently provided plaintiff with a certain pry bar or lifting rod which was in bad condition of repair, in that it was slick, bent and crooked and unfit for the said work of which the said Gross then and there knew, or by the exercise of due care could have known, and avers that Gross ordered and directed the plaintiff to use said appliances in the lifting and moving of said track, and the plaintiff in obedience to such order, and in the exercise of due care, commenced the use of said appliance in an effort to lift or move said track at said point, and while so lifting with said tool or appliance in said work, and in consequence of its said condition and repair, and order and command, the said tool or appliance gave way and slipped and thereby plaintiff was violently and with great force thrown down to and upon said appliance and track and was injured in the manner set forth in the above count.

It is insisted by counsel for plaintiff that it sufficiently appears from this declaration that a duty devolved upon the defendant and that it negligently failed to perform that duty and by reason thereof the plaintiff was injured and sustained damages, and that this was sufficient to warrant recovery.

Upon the other hand, it is contended by the defendant that it appears from the allegations of the declaration that the plaintiff assumed the risk resulting from the acts set forth in his declaration and that by reason thereof he is barred of a right to recover.

Counsel for plaintiff in his argument treats the acts of negligence complained of as if he were given a remedy for the injuries by an action at common law. Upon the other hand, counsel for defendant insists that under the averments of the declaration the action must be determined by the provisions of the Federal Employers’ Liability Act. We are inclined to agree with the contention of defendant upon this question, as the declaration shows that the defendant was at the time engaged in interstate commerce, and, being so engaged, the federal statute is applicable and is exclusivé, paramount and superior to the State laws wherever its provisions are applicable. Devine v. Chicago, R. I. & P. Ry. Co., 266 Ill. 248. In the case of Staley v. Illinois Cent.R. Co., 268 Ill. 356, the Supreme Court, in commenting upon the case of Wabash R. Co. v. Hayes, 234 U. S. 86 [6 N. C. C. A. 224], said: “Had the injury occurred in interstate commerce, as was alleged, the federal act undoubtedly would have been controlling, and a recovery could not have been had under the common or statute law of the State. In other words, the federal act would have been exclusive in its operation, not merely cumulative. ’ ’

Again, upon an inspection of this declaration it appears that there is no allegation that the defendant had not elected to operate its road under the Compensation Law of the State of Illinois, and without such an averment no right of action at common law or under the statute would exist. As we view it, the right of action, if any existed, necessarily accrued to plaintiff under the Federal Liability Act, and the rights of the parties to this suit must be. determined according to the laws and decisions of the federal courts. The declaration charges that the defendant was engaged in interstate commerce and was using this track in such commerce. An employee of an interstate carrier en-.gaged in maintaining tracks has been held by the federal courts to have been engaged in interstate commerce. Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146 [3 N. C. C. A. 779]; Illinois Cent. R. Co. v. Behrens, 233 U. S. 473 [10 N. C. C. A. 153]. Under the acts of Congress and the decisions of the federal courts, the doctrine of assumption of risks applies and prevails as at common law. The employee assumes the risk of his employment under the federal act, except where the violation by the carrier of the federal statute contributed to the injury, and in construing this statute the Supreme Court of the United States said: “It seems to us that section 4, in eliminating the defense of assumption of risk in the cases indicated, quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as a complete bar to the action. And, taking sections 3 and 4 together, there is no doubt that Congress recognized the distinction between contributory negligence and assumption of risk; for, while it is declared that neither of these shall avail the carrier in cases where the violation of a statute has contributed to the injury or death of the employee, there is, with respect to cases not in this category, a limitation upon the effect that is to be given to contributory negligence, while no corresponding limitation is imposed upon the defense of-assumption of risk — perhaps none was deemed feasible.” Seaboard Air Line Ry. v. Morton, 233 U. S. 501 [8 N. C. C. A. 834]. It will be observed that in this declaration the plaintiff charges that the defendant knew of the defects complained of but nowhere avers that plaintiff had no such knowledge of the defects or effect thereof, and as we understand the decisions of the federal court, the declaration must contain such allegations as show that the plaintiff did not assume the risk of the actual negligence complained of. The plaintiff knew the number of men that were engaged at this work, and appreciated the extent to which he would have to exert himself in lifting upon this railroad track, and certainly was aware of the fact that by over exertion he was liable to injure himself; at least the danger was apparent to a reasonable man, and where the danger is so plain and apparent he must be presumed to have known it. Chesapeake & O. Ry. Co. v. Proffitt, 241 U. S. 462. The mere furnishing of an insufficient number of men is not actionable negligence. The Supreme Court of Illinois, in commenting upon a failure of the employer to furnish a sufficient number of men to properly perform their work, says: “If it was the duty of appellant to employ more help in order to render the performance of the labor appellee was employed to -perform reasonably safe, and appellant failed in that duty, when that fact was discovered by appellee it was his duty to quit appellant’s service, but if he remained he did so at his own risk.” Swift & Co. v. Rutkowski, 167 Ill. 156. And in the case of Morgan v. Wabash R. Co., 158 Ill. App. 344, the court says: “The evidence discloses beyond controversy that whatever danger existed at the time was as obvious and apparent to defendant in error, whom, the evidence discloses, was a person of ordinary intelligence, as it was to the master, and where this condition exists the law charges the servant with knowledge of such danger and he assumes the risk of injury from all conditions of which he has an equal knowledge with the master to know, and which are open to his observation and which he might have easily known by the use of his sense of observation. (Montgomery Coal Co. v. Barringer, 218 Ill. 327; Christiansen v. William Graver Tank Works, 223 Ill. 142.)”

The employment of an insufficient number of men was a patent defect and one which plaintiff was bound to see. Texas & P. Ry. Co. v. Rogers, 57 Fed. 378.

It is contended by plaintiff that the defendant by its agent gave an order requiring the plaintiff to perform this work, but it is not claimed or argued that the plaintiff was in any way misled by this order or command. He knew the conditions and knew the effect as well as any one that the lifting referred to would have upon him physically, so that he could not have been misled by the order, if such was an order, and the Supreme Court of Illinois, in the case of Republic Iron & Steel Co. v. Lee, 227 Ill. 258, says: “An exception to the doctrine of assumed risk exists where a servant is ordered by his master to do certain work which is attended with danger of which he is not fully cognizant, and he relies, upon the order to do the work as an assurance that he may safely perform the task. This case, as stated by the first two counts of the narr., is not within the exception, however, because appellee had full and complete knowledge of all the dangers attendant upon and resulting from the negligence charged by those two counts, in so far as the evidence tended to prove the same. It is only where 'the servant has been misled by the order of the master that the exception exists.” It also seems to ns that all this order amounted to, under the allegation, was a direction to perform the work that was being carried on in the usual manner, and, as we understand the law, such directions are not within the rule invoked by the plaintiff.

It is also insisted by plaintiff that the pry bar or lifting rod with which he was furnished to do this work was insufficient, bent and crooked and unfit for the work. This was a simple instrument or tool used in the performance of the work, and the Supreme Court, in the case of Webster Mfg. Co. v. Nisbett, 205 Ill. 273, says that the rule that exempts an employee from assuming the risk does not apply to ordinary labor which only requires the use of implements with which the employee is entirely familiar; and this doctrine is also announced in the case of Schumann v. International Harvester Co., 174 Ill. App. 140, in which the court says: ‘ The doctrine in this State is that for an injury received from the use of a simple tool, the master is not liable even though he has notice of its defect, and that therefore the servant assumes the risk of injury from its use.”

It appears to us that by the allegations of this declaration all of the acts of negligence complained of were shown by the averments themselves to have been of that character which the plaintiff under the law assumed, and, being so, he was barred of any right of action against the defendant on account thereof.

Other errors are complained of with reference to the holding of the court on the question of the statute of limitations, but in view of the foregoing conclusions arrived at by this court we deem it unnecessary to consider this question.

After the demurrer was sustained to the original counts of plaintiff’s declaration for the causes there assigned, which included the failure of plaintiff to relieve himself of the question of assumed risk, and upon filing an amended declaration he still failed to allege his want of knowledge, or such facts as would relieve him of the assumption of risk, then we must assume that in the amended declaration he not only omitted these elements but did it designedly, so relying upon his right to recover notwithstanding he may have known of these -defects and assumed the risk of working thereunder.

We are of the opinion that the plaintiff failed to make such a statement of facts as would relieve him from the risks assumed under the law as determined by the federal and State courts, and that the lower court committed no error in sustaining the demurrer to the declaration, and the judgment of the lower court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    Amos W. Tyler, President, Isaac L. Garrison, Vice President, O. W. Talbert, Cashier, et al., Directors, for use of Amos W. Tyler, Oliver W. Talbert et al., Plaintiffs in Error, v. Henry T. Goddard and Thomas W. Hall, Defendants in Error.
    1. Judgment, § 443

       — when in prior case is not former adjudica^ tion. A judgment in a prior case is not a former adjudication where the matters in the former case are different from those in the later one and the parties are different.
    2. Payment — when instructions in action to recover money overpaid hy mistake improperly refused. In an action of assumpsit by the directors of a new national bank against partners of a private bank to recover an amount alleged to have been overpaid by mistake to defendants on the purchase of the assets of the latters’ bank, instructions that by the terms of the contract defendants represented that their bank had an actual capital and surplus invested, of a certain sum, and agreed to deliver that amount of capital and surplus invested in cash or good negotiable paper, and that if the capital and surplus so invested did not amount to such sum and that by reason of the representations of defendants, plaintiffs paid a certain sum more than the amount so invested then plaintiffs could recover, held improperly refused, as they properly construed the contract.
    3. Instructions, § 114

       — when misleading because inapplicable to issues. In an action by the directors of a national bank against a private banking partnership to recover an alleged overpayment on the sale of defendants’ business, an instruction that courts of law cannot reform or change a contract and that such change or reformation can only be effected in equity, held misleading where no attempt was made to have the contract changed or reformed.
    4. Payment — when instruction on right of recovery of money paid under mistake is misleading. In an action by the directors of a national bank against a private banking partnership to recover an alleged overpayment on the sale of defendants’ business, an instruction that plaintiffs had been mistaken as to the legal meaning of the contract of sale involved and that money paid under an alleged mistake as to the legal effect of a contract cannot be recovered back, held to be misleading.
    5. Sales, § 357* — when instruction on right of sellers of business to express value in contract is misleading. In an action by the directors of a national bank against a private banking firm to recover an alleged overpayment by mistake on the sale of defendants’ business, an instruction that defendants had the right to place such value on the capital invested and business of their bank as they pleased and to have such value expressed in the written contract, whether such value was the actual value or not, held to be misleading.
    6. Contracts, § 205* — when instruction leaving to jury interpretation of is erroneous. An instruction which leaves to the jury the interpretation of a contract is erroneous.
    7. Assumpsit, Action oe, § 41* — when lies. Where an error is made in arriving at the amount due from the buyers of a banking business to the sellers at the time the assets of the bank are checked up and by reason thereof more is paid than should have been paid under the contract, an action of assumpsit lies to recover the amount overpaid.
    8. Judgment, § 693* — when instruction on binding effect of former adjudication misleading. In an action of assumpsit by the directors of a national bank against a private banking partnership to recover an alleged overpayment made on the purchase of defendants’ banking business, an instruction that it is the policy of the law to end litigation and that if a judgment in trover in favor of one of the defendants against plaintiffs for costs was rendered, then, if the promissory notes involved in that case were the same notes which were sued on in the present case the judgment in the former case was conclusive on the right to recover on such notes or their, value, held to be misleading, since action was not brought in the second case to recover the value of any notes.
    9. Judgment, § 693

       — when instruction that jury may determine whether same matters are involved in successive actions is erroneous. An instruction authorizing the jury to determine whether ■the same matters are involved in two successive actions, the former of which is claimed to be conclusive as a former adjudication, is erroneous.
    10. Evidence, § 403* — when terms in contract may he explained hy experts. Any terms in a contract that have a technical meaning can be explained by experts having knowledge of that meaning; but it is not for experts to construe contracts, this being a matter for the courts.
    11. Contracts, § 205* — construction as matter for court. The construction of contracts is a matter for the court.
    12. Contracts, § 191* — when final contract and proposal may he construed together. A final contract for the purchase of a banking business and a proposal may be construed together where they refer to and supplement each other, and especially where the adverse parties admit that the contract substantially conforms to the proposal.
    Error to the Circuit Court of Wabash county; the Hon. William H. Green, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed October 24, 1917.
    Rehearing denied January 10, 1918.
    Boggs, Boggs & Heibirger and Creightor & Thomas, for plaintiffs in error.
    P. J. Kolb, M. J. White and Greer & Bisley, for defendants in error.

      See-Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

      Sve Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

An action in assumpsit was brought by plaintiffs in error (hereafter called plaintiffs) against defendants in error (hereafter called defendants) in the Circuit Court of Wabash county, to recover the amount alleged to have been paid by mistake to defendants on the sale of a bank building, fixtures, etc. A trial was had resulting in a verdict and judgment against plaintiffs in bar of action and for costs. To reverse said judgment this writ of error is prosecuted.

The principal ground relied on by plaintiffs for a reversal of said cause is that the verdict is against the manifest weight of the evidence and on the instructions.

The record discloses that on or about the 13th day of September, 1913, plaintiffs, a company of men in the vicinity of Wayne City having taken steps to organize a National Bank in said city, were made a proposition in writing by defendants, partners in a private bank, for a sale of their said bank building, fixtures, etc.

It was recited in said proposal that it should stand and be binding on all parties. On the evening of the 13th of October, 1913, the assets of the bank were checked up by a committee representing plaintiffs and by Harry H. Clark, cashier of the Wayne City Bank, representing defendants.0 At that time $6,046.67 of the bills receivable of said bank were taken by Clark as so much on the purchase price of said bank, furniture, real estate, etc., and a draft was issued by plaintiffs to defendants for $10,893.40, making with said bills receivable, $17,030.07. It is insisted by plaintiffs that in making said settlement they overpaid defendants $6,080, and to recover said amount this suit was instituted. ,

Possession of the Wayne City Bank was taken by plaintiffs on October 14th, being the next day after the assets were checked. Immediately thereafter plaintiffs insisted that an error had occurred in the settlement of said contract and made a demand on Clark, the cashier of the Wayne City Bank, for the return of the notes which he had taken from the bank the evening of the settlement. On his refusal to return the same an action in trover was brought by plaintiffs against Clark and defendants to recover the value of said notes. During the pendency of the trial the suit was dismissed as to defendants and the suit thereafter was prosecuted against Clark alone, and resulted in a verdict and judgment in favor of Clark and against plaintiffs for costs. It is now insisted by defendants that this trial amounted to a former adjudication of the matters here in controversy and that plaintiffs are not entitled to prosecute this suit. An examination of the record in that case discloses that the matters there in issue were different from the matters in issue- in this suit and the parties are not the same. We hold, therefore, that the suit in trover does not amount to a former adjudication and is no bar to the prosecution of the suit here involved. Garrett v. John V. Farwell Co., 199 Ill. 436.

Without going into the pleadings in this case, which are somewhat extended, it will only be necessary to say that the issue made and the principal controversy in this case is the construction to be placed upon the contract entered into by defendants with plaintiffs for a sale of the assets, real estate, furniture, etc., of the Wayne City Bank.

The final contract entered into by said parties provided, among other things, that “the said bank of Wayne City shall be checked up, when ready for delivery, by an auditing committee consisting of H. H. Clark and any two of the above mentioned parties of the second part (plaintiffs), and proven in balance. The bank shall show actual cash capital and surplus invested to the amount of $10,675.75, and $2,080, furniture and fixtures and $4,000 real estate.

“The said parties of the second part (plaintiffs) hereby agree to pay to the said party of the first part (defendants), on delivery of possession of the said bank property the total aggregate sum of $16,755.75. And this sum is understood to be full and complete pay and compensation for the entire bank property of the said Bank of Wayne City. And to include all the books and business on the same, bonus and pay for said business and good will, all moneys and credits, building, furniture and fixtures, supplies, blanks, etc.

“And the said parties of the second part further agree that on the delivery of the said bank to them they assume the liabilities of the said bank, including deposits of the said bank that are subject to check and certificates of deposit, bills payable and all forms of liability appearing on the said books of the said bank when same shall have been proven in balance, and the said parties of the second part shall execute and deliver to the said party of the first part, a good and sufficient bond, to be approved by the said party of the first part, obligating the said parties of the second part to fulfill the said obligations of the said party of the first part, to pay off such deposits, certificates and bills payable, on demand or at maturity.

“And the said party of the first part does hereby agree that, immediately upon payment to said party of the first part by the said party of the second part of the sum of $10,675.75 to cover capital stock invested, in full in cash or its equivalent in good negotiable approved paper, and the additional sum of $6,080, representing the value of the real estate, furniture and fixtures, that is to say, upon the payment to the said party of the first part the sum of $16,755.75, the said party of the first part shall deliver to the said parties of the second part the personal property, including cash, credits, bills receivable, furniture and fixtures, supplies, and all the bank equipment, together with the books and business on the same, together with the good will of the said party of the first part.”

Said contract further provides for a conveyance by warranty deed of the real estate on which said bank is located, together with the first or lower story of the two-story brick bank building situated thereon.

The remainder of the contract is not important so far as the matters here in controversy are concerned.

The court in our judgment wholly failed to properly construe the above contract in its instructions to the jury. A large number of instructions were tendered by plaintiffs presenting their theory of the proper construction of the contract involved which were refused by the court. Certain of these instructions, we think, stated correct principles of law and were not covered by other instructions given, and it was error to refuse the same. Among this number is the fourteenth and fifteenth of plaintiffs’ refused instructions, the fourteenth instruction being as follows: “The Court instructs you that, by the terms of the contract in this case, the defendants represented and stated to the plaintiffs that their bank had an actual capital and surplus invested to the amount of $10,675/"5 and agreed to sell and deliver to the plaintiffs that amount of capital and surplus invested in cash or good negotiable paper. And if you find from the evidence in this case that the capital and surplus of the bank of the defendants invested in cash or good negotiable paper did not amount to $10,675.75 and that by reason of the representations so made to the plaintiffs in said contract that said capital and surplus invested in cash or good negotiable paper was the sum of $10,675.75 the plaintiffs were induced to and did pay the defendants $10,675.75 for such capital and surplus and that the amount so paid to the defendants was $6,080 more than the amount of the capital and surplus invested in cash or good negotiable paper, then your verdict should be for the plaintiffs in the sum of $6,080 and interest thereon at the rate of five per cent, per annum from the date of such payment to the present date.”

The fifteenth instruction is, in its effect, practically the same as the fourteenth instruction, but is stated in a different way. The court erred in refusing to give these two instructions, as they properly construed said contract.

The court gave 22 instructions on behalf of the defendants. Instruction No. 3 informs the jury that courts of law cannot reform or change a contract, but such change or reformation can only be accomplished ■in a court of equity on a bill filed for that purpose. This instruction was misleading for the reason that there was no attempt made in this proceeding to have the contract in question changed or reformed, but to have it interpreted and enforced according to its plain legal effect.

Instruction No. 5, in effect, assumes that plaintiffs had been mistaken as to the legal meaning of the contract involved and informs the jury that money paid under an alleged mistake as to the legal effect of a contract cannot be recovered back. This instruction was misleading and should not have been given.

Instruction No. 6 is of the same character as instruction No. 3 and should not have been given.

Instruction No. 8 informs the jury that the defendants had the right to place such value on the capital invested and the business of such bank as they pleased and to have such value expressed in the written contract, whether the value so expressed was more than the actual value or not. This instruction would have a tendency to mislead the jury as to the real issues in the case, and the court erred in giving it.

Instructions 10, 11 and 15 are erroneous for the reason that they leave to the jury the interpretation of the contract. Defendant’s instruction 16 informs the jury that if at the time the parties checked up the assets of the bank they believed they had the amount owing by the plaintiffs to the defendants properly ascertained and that the plaintiffs were paying the defendants the correct amount they were required to pay, and had a full understanding of all the material facts surrounding or pertaining to said transaction, that then the plaintiffs cannot recover hack any part of said purchase money on a claim that such part was paid without consideration or that the defendants’ claim therefor was unenforceable. This instruction does not state a correct principle of law. If an error was made in arriving at the amount that was due from the plaintiffs to the defendants at the time the assets of the bank were checked up, and by reason of that error plaintiffs paid the defendants more than they were entitled to under the contract, they have a right of action in assumpsit to recover the amount so overpaid. Eddie v. Eddie, 61 Ill. 134; Commercial Union Assur. Co. v. Scammon, 133 Ill. 627; Starrett v. Brosseau, 208 Ill. 408.

Instruction No. 18 informs the jury that it is the policy of the law that there should be an end of the litigation between the same parties in regard to the same matter, and states to the jury that if a judgment in the trover suit was rendered in favor of Clark “and against the plaintiffs for costs of suit, then, if the projnissory notes, sued for in that case, are the same promissory notes, or their value, sued for in this action against the defendants, Goddard and Hall, the judgment rendered in the former case should be held by the jury to be conclusive against the rights of the plaintiffs to recover in this action, on account of said promissory notes or their value, and the jury should so find.” The record discloses that the suit here brought was not to recover the value of any notes. It was misleading to instruct the jury in regard thereto. Instruction No. 19 is erroneous for the reason that it informs the jury that if the judgment rendered in the trover case against Clark involved the same matters as the suit then on trial that, that judgment is just as conclusive as a former adjudication as if the trover suit had not been dismissed as to the defendants in this case. In other words, the instruction left it to the jury to say whether the same matters were in controversy in the trover suit as were in controversy in the suit they were trying.

It is further contended by plaintiffs that the court erred in allowing experts to testify on behalf of the defendants with reference to the meaning of the terms used in the contract. Any terms in a contract that have a technical meaning can be explained by experts having knowledge of that meaning. It is not, however, for the experts to interpret or put their construction on the contract; that is a matter for the court. Rankin v. Sharples, 206 Ill. 301. These witnesses were allowed to go beyond the mere explanation of the technical terms used in the contract, and to that extent the court erred in allowing them to testify.

Plaintiffs also insist that the final contract entered into by said parties should be read and construed in connection with the proposal contract entered into as they refer to and supplement one the other. The proposal contract was admitted in evidence without objection and was referred to by both parties in the argument, and we see no reason why they should not be construed together. Especially in view of the fact that appellees in their brief and argument state that: “The contract executed and entered into between the parties is in substantial conformity with said written proposal.”

We express no opinion on the weight of the evidence as the case is to be retried. Other errors were assigned but it is not necessary to discuss them here.

For the reasons above set forth, the judgment of the trial court is reversed and said cause will be remanded.

Reversed and remanded.


text:
    In the Matter of the Estate of John W. Brown, Deceased. Sina D. Pagle, Executrix, Appellant. Anna Brown et al., Appellees.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Fayette county; the Hon. James C. McBkide, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed October 24, 1917.
    Statement of the Case.
    In the matter of the estate of John W. Brown, deceased, wherein the executrix, Sina D. Pagle, filed, in the County Court a report marked final, showing no receipts or expenditures but certain unpaid claims, which upon objections by Anna Brown and others, objectors, was not approved by that court, and on appeal to the Circuit Court a decree was rendered finding the amount she should charge herself as executrix and specifying the amount she should take credit for in her report and directing that her report be not approved and that she make a new report, in accordance with such findings, to the County Court within sixty days, from which decree she appeals.
    The inventory of the estate filed by the executrix showed a large number of articles of personal property, farming implements, household goods, horses, etc., valued at $1,813, and notes and accounts valued at $46.70, aggregating $1,859.70. The decedent bequeathed, after payment of debts, all his personal property and devised all his land, except twenty acres, to the executrix and her two sisters. The twenty acres was treated by all parties as intestate property. Later, after filing the inventory, an appraisement bill of a portion of the personal property, valued at $570, was filed, and, on petition by the executrix, the appraised property was ordered sold, but she reported two years later that a sale at a sufficient price had not been made and most of the property had been bought in by a sister at the appraised value, also, that she and her sisters had advanced $1,219.67 of their own money to pay debts of the estate. A later report showed she had received $750 from the property inventoried and said sum of $1,219.67, that there was $1,350.44, of unpaid claims, and that the balance of unpaid indebtedness of the estate after deducting the $750 was $1,820.11. She thereafter filed her final report and asked payment of $2,152.58 from certain moneys in the hands of the master in chancery from the sale of real estate to liquidate the indebtedness, to which .objections were filed by one of her sisters and certain other heirs of the decedent, interested only in the sale of said twenty acres, which brought $600.
    Abstract of the Decision.
    1. Executors and administrators, § 529

      - — when executrix should be charged with money advanced to protect interests of devisees. Where the sole devisees of a testator’s personal property, for the purpose of protecting their interests therein and retaining such property, voluntarily paid to the executrix of the estate, who was one of such devisees, a certain amount of their own money to be used in payment of the debts of the estate, held that the executrix was properly charged by the trial court in her report with such amount.
    2. Executors and administrators, § 529* — when executrix may not complain of being charged with increased value of personalty. Where the executrix of an estate fails to properly administer the estate and appraise and sell the personal property as provided by statute, she is in no position to complain of being charged with the increased value of the property when actually sold.

      John A. Bingham, for appellant.
    Brown & Burnside, for appellee Anna Brown.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section number.

      See Illinois Notes Digest, Yols. Xl to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered thp opinion of the court.

3. Executors and administrators — when inclusion of claim in finding in decree is error. The inclusion in a finding in a decree, sustaining objections to the report of an executrix of a claim, of which the record contains no evidence, is erroneous.

4. Executors and administrators, § 330 — when devisees of personalty may not complain of application of sums advanced to executrix for payment of debts. Where the devisees of the personal estate of a testator voluntarily advanced certain of their own money to the executrix to pay the testator’s debts in order to protect their own interests in the property, held that they were not in a position to raise the question that proceeds from the sale of the testator’s real estate, descended and sold as intestate property, should first be applied to his indebtedness before such advanced moneys were applied thereto.

5. Executors and administrators — when devisees of personalty should be reimbursed for money advanced to pay debts of testator. Where the devisees of the personal estate of a testator voluntarily advanced money to pay the testator’s debts, held that whatever funds should remain in the hands of the executrix, if any, after paying the indebtedness of the estate, should be returned to such devisees and not to the estate, as such remainder would be a balance remaining out of the funds so advanced by the devisees to pay the indebtedness and would belong to them and not to the estate.

6. Executors and administrators, § 560* — when executrix properly-denied commissions. Where a testator’s estate was irregularly and improperly administered by the executrix, held that there was no error in the court not allowing her commissions.


text:
    William Ebers, Receiver, Defendant in Error, v. J. Henry D. Dettmering, Plaintiff in Error.
    1. Partnership, § 107

       — right to sue member on contract. As a general rule a copartnership cannot sue a copartner upon a note or contract: made between the partnership and such copartner.
    2. Partnership — when receiver may not sue member of on note. The assignee or receiver of a copartnership cannot sue one of its members upon a note, as an assignee or a receiver takes no greater interest in the assets of a copartnership than the copartnership had itself, and a suit instituted by a receiver or assignee is a suit based on the right to sue that was originally in the copartnership.
    Error to the Circuit Court of Randolph county; the Hon. J. F. Guxham, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed October 24, 1917.
    J. Fred Gilster and William: H. Schuwerk, for plaintiff in error.
    H. Clay Horner, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

Defendant in error, William Ebers (hereafter for convenience designated defendant), as receiver of the Farmers Bank, a copartnership, of Steelville, Hlinois, instituted an action in assumpsit against plaintiff in error (hereafter designated plaintiff), in the Circuit Court of Randolph county, to recover on a certain note given by plaintiff, a "member of said copartnership, to said partnership hank.

The record discloses that in December, 1915, a bill was filed in said Circuit Court of Randolph county by certain members of said copartnership setting forth the insolvency of said bank, and praying that a receiver be appointed to take charge of the hank’s affairs, and also praying that an accounting be had among the members of said copartnership and that the same be dissolved. A decree was entered appointing defendant as such receiver. Among the assets of said bank was a note given by plaintiff for money loaned, and the defendant as such receiver sought in an action in assumpsit to recover against plaintiff the amount of said note.

The declaration avers among other things that the defendant: “Was by order of the Circuit Court in said Randolph county, in proceedings for the dissolution of the-partnership and appointment of receiver, duly appointed receiver of all and singular the real and personal property of said Farmers Bank, etc., and is now such receiver,” and then in the ordinary assumpsit count set forth the giving of a note by plaintiff in the sum of $9,800, payable to said bank on demand, alleging demand, etc. To said declaration plaintiff filed a plea of the general issue and a special plea, alleging among other things the following: “That the real plaintiff in this suit, namely, the Farmers Bank, is a partnership: that the defendant was at the time the debt herein sued upon was contracted and is now and has always been since his debt was made, a partner in said partnership called the Farmers Bank; that a bill in chancery has been filed in this court asking for the dissolution of said Farmers Bank, but that no settlement has yet been made; no accounting has been had of the assets of the said firm and no balance struck; that said partnership is still in existence.” To this special plea the defendant filed a demurrer, the demurrer was sustained and plaintiff elected to stand by said special plea and withdrew the plea of the general issue. Thereupon the court assessed the damages of defendant in error at $7,641.45, and rendered judgment accordingly for said amount and costs. From said judgment plaintiff prosecutes his writ of error.

The sole question to be here determined under the assignments of error is as to whether or not the . defendant as receiver of a copartnership can maintain an action at law on a note or contract made between said copartnership and one of its members. The general rule that a copartnership cannot sue one or more of the copartners upon a note or contract is so well established, both at common law and under the decisions of the Supreme and Appellate Courts of this State, that there is but little need of the citation of authorities. 15 Encyc. Pl. & Pr. 1005; Bates on Partnership, vol. 2, sec. 883; Milligan v. Mackinlay, 209 Ill. 358; Security Title & Trust Co. v. Schlender, 190 Ill. 609.

The defendant concedes that no suit could be maintained by said bank or the copartnership composing it against plaintiff, one of its members, but insists, however, that the appointment of a receiver of said copartnership obviates the objection that is made with reference to a party suing himself. No authority, however, is cited by defendant that supports his contention. In Security Title & Trust Co. v. Schlender, supra, the Supreme Court at page 613, in discussing the rights of a receiver of a copartnership, says: “The receiver, therefore, has only those rights which belong to the firm.” And in Lund v. Skames Enskilda Bank, 96 Ill. 181, the Supreme Court, in passing on the question of the right of an assignee of a copartnership to sue one of the partners, says: “The assignee (of a partnership) has no power to bring suits, either at law or in equity, against the partners of this firm, for the purpose of securing payment of debts due the firm.” And in Young v. Stevenson, 180 Ill. 608, the court at page 615 says: “The assignee or receiver of the assets of a copartnership has no power to bring suit in equity or an action at law against the partners to recover amounts due from them to the firm.”

The language used by the Supreme Court in the cases cited is so clear and unequivocally expressed that it would seem to practically dispose of the questions involved in this case. It is contended, however, by defendant that notwithstanding this is true, that the Supreme Court in neither of the two cases last cited was required to pass on the question as to whether or not an assignee or receiver of the assets of a copartnership could maintain an action at law against one of the copartners. In other words, it is the defendant’s contention that the language used by the Supreme Court is obiter dictum. To a certain extent this is probably true; however, a receiver or an assignee takes no greater interest in the assets of the copartnership than the copartnership had itself, and a suit instituted by a receiver or assignee is a suit based on the right to sue that was originally in the copartnership. If the then copartnership could not bring the suit because against one of its members, we do not believe, in principle, that the assignee or the receiver of the assets and obligations held by the partnership could do so, and that is the holding of the court in this case.

Counsel for defendant further say that the language used by the Supreme Court in the case of Young v. Stevenson, supra, was used unadvisedly for the reason that it is the well-established doctrine of the courts of this State that an action in equity may be maintained by one or more of the partners of a copartnership or firm against the other members or partners of such firm. An examination of the language used by the Supreme Court in Young v. Stevenson, supra, will disclose that the court has reference to an action against one of the partners of the firm to recover amounts due from them to the firm. In other words, it refers to a right of recovery on a common-law obligation from one member of a firm to the firm or copartnership and does not refer to the right of a member or members of a copartnership to file a bill in equity to close up the partnership, and for an accounting against the various members of the firm to ascertain the amount that may finally be owing by them in the settlement of the firm’s business.

For the error of the Circuit Court in sustaining the demurrer to the special plea and in rendering judgment against plaintiff, said cause will be reversed and remanded.

Reversed and remanded.


text:
    William Ebers, Receiver, Defendant in Error, v. J. Henry D. Dettmering and Frieda Dettmering, Plaintiffs in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Randolph county; the Hon. J. F. Gilli-iam, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed October 24, 1917.
    Statement of the Case.
    Action in assumpsit by William Ebers, receiver of Farmers Bank, plaintiff, against J. Henry D. Dettmering and Frieda Dettmering, his wife, defendants, to recover on a certain note given by defendants to the bank. From a judgment for plaintiff for $1,601.50, on demurrer to defendants’ special plea, defendants bring error.
    The decision in this case is governed by the decision in Ebers v. Dettmering, ante, p. 539.
    J. Fred (Buster and William: H. Schuwerk, for plaintiffs in error.
    H. Clay Horner, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Agnes Bridget Berner, Administratrix of the Estate of William J. Berner, Deceased, Appellee, v. East St. Louis & Suburban Railway Company, Appellant.
    1. Negligence, § 157

       — when plaintiff must show due care. Proof of due care is affirmative proof, and must be made by plaintiff before recovery can be had in a personal injury case.
    2. Negligence, § 198* — when due care is question of law. While ordinarily the question' of due care is for the jury, where the undisputed facts show a want of due care on the part of the person injured and that he was guilty of negligence which contributed to his injury, the question of due care is one of law.
    3. Carriers, § 428* — when passenger stepping or thrown from car while on rear platform negligent. A passenger on a street car, who is more or less under the influence of liquor, and persists in standing on the rear platform, although he is requested by the conductor to step inside where there are vacant seats, and either falls from or is thrown off the platform by the motion of the car, and is killed, is guilty of contributory negligence.
    Appeal from the City Court of East St. Louis; the Hon. H. L. Browning, Judge, presiding. Heard in this court at the March-term, 1917.
    Reversed with finding of fact.
    Opinion filed October 24, 1917.
    .Rehearing denied January 10, 1918.
    Barthel, Farmer & Klingel, for áppellant.
    Farthing, Oehmke & Farthing, for appellee.

      See Illinois Notes iMgest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

Appellant, East St. Louis & Suburban Railway Company, is a corporation organized under the General Railroad Act, and as such operates a line of cars from East St. Louis to Belleville, and elsewhere. This line crosses a bridge about 20 feet long, known as “Lake Bridge.” About nine o’clock, on the-night of July 15,1916, William J. Berner, who had been spending the afternoon in and about the saloons of Belle-ville, and was more or less under the influence of liquor, boarded a westbound car in Belleville to ride to East St. Louis. When he got on the car he stood on the rear platform. The conductor requested Berner to step inside where there were plenty of vacant seats. This, he declined to do. As the car passed over Lake Bridge, westbound, Berner either fell from or was thrown off the rear platform by the motion of the car, dropped into the creek and was killed.

Suit was brought in the City Court of East St. Louis by the administratrix of said deceased for the recovery of damages. The declaration consists of two counts. The first count alleges that Berner was a passenger, and that while in the exercise of due care for his own safety he was thrown from appellant’s car, which, it is alleged, was carelessly and negligently caused to be run along the track and around a sharp curve at a high and dangerous rate of speed. The second count contains the same allegation, and also alleges the high rate of speed was in violation of an ordinance of the City of East St. Louis which limits the speed of cars in said city to an average of 12 miles per hour between terminals. Appellant filed a plea of not guilty. The case was tried resulting in a verdict and judgment in favor of appellee for $3,250.

Appellant prosecutes this appeal to reverse said judgment.

It is first contended by appellant that appellee was not in the exercise of due care for his own safety, but was guilty of contributory negligence,- and that the peremptory instructions offered at the close of appellee’s evidence and again at the close of all the evidence should have been given. This assignment of error, we think, is well taken for while there is evidence in the record tending to prove that the car in question was running from 20 to 32 miles per hour at the time of the accident, in violation of the ordinance offered in evidence, and while there is some evidence in the record tending to prove that the car gave a lurch as it approached said bridge on account of a slight curve in the track near said bridge, still we hold that the undisputed facts in the case disclose that appellee’s intestate at the time of the injury was guilty of negligence which contributed to the injury and death. Had Berner taken a seat in the car as requested by the conductor, the injury in question would not have happened. The testimony of the conductor relative to this matter is as follows: “I stepped out on the platform just about the time this man got on the car and I stepped back to the emergency brake wheel, and I took his fare and took him by his shoulder, with the right hand, and asked him to step inside of the car, and he said, ‘never mind, I am all right, ’ and he stood there by the cab window. ’ ’ This evidence is not disputed by any one, and we think clearly discloses that appellee’s intestate, of his own volition- and against the request of appellant, saw fit to place himself in a dangerous position, notwithstanding the condition the testimony tended to show he was in with reference to sobriety, and as a result thereof he received the injury which caused his death. We therefore hold that the injury and death of appellee’s intestate were caused by his own negligence, and lack of due care for his own safety. This holding we think is supported by the weight of authorities in, this State. Quinn v. Illinois Cent. R. Co., 51 Ill. 495; Sterling, D. & E. Elec. Ry. Co. v. Wise, 128 Ill. App. 632; Krug v. Chicago, P. & St. L. Ry. Co., 155 Ill. App. 114; Chicago City Ry. Co. v. Albrecht, 114 Ill. App. 474.

In Quinn v. Illinois Cent. R. Co., supra, the court quoting from 32 Barb. 399 in the casé of Willis v. Long Island R. Co., says: “If a man places himself in such a position that in the ordinary movement and conduct of the train he is exposed to danger, he may justly he said to be negligent of his security, and must take the consequences if he is injured. * * * If the plaintiff in this case had been thrown off the platform by a jerk or movement of the train, he would have encountered a danger incident to his position, and although the jerk might have been occasioned by high and unusual speed, or other mismanagement, still, at the most, the fault would- have been mutual.” This language was quoted and approved in Krug v. Chicago, P. & St. L. Ry. Co., supra.

In Sterling, D. & E. Ry. Co. v. Wise, supra, at page 636, the court in discussing the question of due care says: “There is necessarily some motion in a car running 10 or 15 miles per hour. Defendant did not invite its passengers to stand upon the steps of its car while it was running at full speed. If plaintiff’s proofs be taken as true, then the plain fact is that plaintiff unnecessarily placed himself in a position of danger while the car was running 10 or 15 miles per hour, and did not take such a hold upon the handlebars as enabled him to retain his place upon the car, and fell because of his own acts and neglect, and not because the car did not stop. A passenger upon a car traveling at a high rate of speed may not place himself where he will fall unless the car stops, and, when he falls and is hurt, avoid responsibility' for his own injury by saying it was the duty of the conductor to stop the- car and if it had stopped he would not have been hurt.”

In the cases above referred to the court holds "as a matter of law that a party is barred from a recovery on account of failure to prove due care as alleged in the declaration. It must be remembered that the proof of due care is affirmative proof and must be made by the plaintiff before a recovery can be had in a personal injury case. We think the record in this case wholly fails to show any affirmative proof whatever of due care on the part of appellee’s intestate. In fact, the evidence all tends to prove a want of due care on his part.

Appellee insists that the question of due care is a question of fact for the jury. Generally speaking, this is true, but where the undisputed facts show a want of due care on the part of the person injured and that he was guilty of negligence which contributed to his injury, then the question of due care and contributory negligence becomes a matter of law.

Other errors are assigned on the record, but inasmuch as our holding- is that the plaintiff is not entitled to recover on account of contributory negligence, it will not be necessary for us to discuss them.

For the reasons above set forth, the judgment will be reversed. The clerk will- incorporate as a part of the judgment in this case a finding of fact to the effect that appellee’s intestate was guilty of negligence which directly contributed to his injury and death, and that the defendant was not guilty of negligence which was the proximate cause of such injury.

Reversed with finding of fact.


text:
    Mary Stewart, Administratrix of the Estate of Clem McDamon, Deceased, Appellant, v. Chicago & Alton Railroad Company and Illinois Southern Railway Company, Appellees.
    1. Appeal and ebbor, § 812

       — what must appear in MIX of exceptions. Litigants cannot by ex parte affidavits incorporate into the record matters transpiring in the presence of the court during the trial of a cause, but such matters can only be shown hy bill of exceptions signed by the trial judge.
    2. Trial, § 31* — when advancement of trial of case out of order set for hearing is no excuse for failure to he ready for trial. Where cases are allotted for trial on a certain day, it is the duty of the parties to be ready for trial on that date, and the mere fact that the case preceding theirs may, for reasons appearing sufficient to the trial court, be allotted for a subsequent day, whereby their case comes on for hearing earlier than expected, but not earlier than its allotment, is not sufficient upon which to base error.
    3. Dismissal, nonsuit and discontinuance, § 38* — when dismissal of case for want of prosecution is proper. The dismissal of a case for want of prosecution, on motion of the defendant, when regularly called for trial with the plaintiff in court, either in person or by counsel, and the defendant ready for trial, is not error when plaintiff fails to proceed with the trial.
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bebnreuteb, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 24, 1917.
    R. F. Turrell, Jr., for appellant.
    Warrock, Williamsor & Burroughs, Pope & Driemeyer and Kramer, Kramer & Campbell, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment of the Circuit Court of Madison county, dismissing, for want of prosecution with costs, an action on the case brought by appellant against appellees.

The record discloses that this cause was at issue and was set for trial for November 24, 1916, being on Friday. The only case allotted ahead of this one on the trial calendar was a case against the City of Alton. The latter case, being one of considerable importance, by agreement of the parties, was reallotted for trial for the following Monday. The record further discloses that after said suit against the City of Alton had been set over, the case here involved came on regularly for trial and was called by the court. Thereupon counsel for appellant stated to the court, “that he was not ready for trial; that other cases had been set for trial in this court that he had expected would not be disposed of at this time and therefore he was not ready to proceed with the trial. ’ ’ The court stated to counsel: “That this was not a sufficient excuse for not proceeding with the trial and that the court desired that the trial be proceeded with; that at said time the only case on the calendar ahead of this case was the so-called Bowman case against the City of Alton, which had by agreement of the parties been reset for the following Monday by the court oh account of it being a long case and the court found that it was not expedient to call it for trial when reached on its original setting.”

The record further recites that the plaintiff in the above-entitled cause failing to proceed with the trial, the defendants in said cause moved the court to dismiss said cause for want of prosecution, which motion was sustained by the court and said cause was so dismissed.

The record further discloses that thereafter at the same term appellant entered a motion to set aside said order of dismissal, and in support thereof filed the affidavit of R. F. Tunnell, Jr., her attorney, which affidavit purported to set forth certain matters in connection with the proceedings had in court which are not disclosed by the bill of exceptions, among which matters the affidavit recites that a motion for a continuance was made by appellant at the time said cause was called for trial. The trial court, evidently acting on its own recollection of the matter, denied the motion to set aside the judgment and this action of the court is assigned as error.

No principle is better established in this State than the one requiring that matters transpiring in the presence of the court during the trial of a cause must be disclosed by the bill of exceptions and by that alone. Litigants cannot by ex parte affidavits incorporate such matters into the record. They must be shown by the bill of exceptions signed by the trial judge and by that alone. Yott v. Yott, 257 Ill. 419; Peyton v. Village of Morgan Park, 172 Ill. 102; People v. Strauch, 247 Ill. 220.

In Peyton v. Village of Morgan Park, supra, the court at page 107 says: “What is done by the judge or what occurs in his presence is within his knowledge and must be recited over his certificate, and cannot be made a part of the record by ex parte affidavits.” Citing, Mayes v. People, 106 Ill. 306; Scott v. People, 141 Ill. 195. It would be just as proper to show by affidavit the rulings and holdings of the court in the course of a trial, and what instructions were given or refused, as to show in that way what is attempted here. It is held in Mayes v. People, supra, that such an affidavit cannot be made to override the recitals of the bill of exceptions, and that a judge may disregard it because he knows it to be false.

Counsel for appellant further contends that without reference to the matters set forth in the affidavit the record discloses that the court erred in calling the case in question out of its order. The record discloses that this case was set for trial on November 24th, and was regularly called for trial on that day. The record also discloses that the court, in view of the length of time it would take to try the case against the City of Alton, determined that it should be set over to the following week. This was not an abuse of the discretion vested :.n the trial court with reference to the allotment of cases for hearing, and was not error.

Counsel for appellant cites the case of Spitzer v. Schlatt, 249 Ill. 416, as a case supporting his contention. An examination of the opinion in that case discloses that it does not support the contention of appellant. Quoting from the opinion the court on page 419 says: “The statute provides that ‘all causes shall be tried, or otherwise disposed of, in the order they are placed on the docket, unless the court, for good and sufficient cause, shall otherwise direct.’ ” (Chapter 110, sec. 21, Hurd’s Rev. St., J. & A. ft 8558.) “What is ‘good and sufficient cause ’ is not defined by the statute and must therefore be determined by the trial court, in the first instance, in the exercise of a sound legal discretion.” Citing Morrison v. Hedenberg, 138 Ill. 22; Staunton Coal Co. v. Menk, 197 Ill. 369; O. S. Richardson Fueling Co. v. Seymour, 235 Ill. 319.

In Staunton Coal Co. v. Menk, 197 Ill. 369, the court at page 373 says: “The statute does not determine what shall constitute sufficient cause for trying a case out of its order on the docket, but that is a matter to be determined by the court in the exercise of a sound legal discretion. When the court so exercises its discretion in the matter, its action will not bé interfered with by a reviewing court, unless there has been a clear abuse of its discretion.”

We therefore hold that the trial court did not abuse its discretion in reallotting the case of Bowman v. City of Alton to be tried the week following the day on which it was originally allotted. When cases are allotted for trial on a certain day, it is the duty of the parties to be ready for trial on that date, and the mere fact that a case preceding theirs may, for reasons appearing sufficient to the trial court, be allotted for a subsequent day, whereby their case comes on for hearing earlier than expected, but not earlier than its allotment, is not sufficient ground to base error on.

Lastly, it is insisted by appellant that the court erred in dismissing her suit for want of prosecution, her contention being that a jury should have been called and a trial should have been had. There are cases holding that where the plaintiff is in court, either in person or by counsel, when a case is regularly called for trial, if the defendant insists on having a trial of the case the case should be tried, unless the plaintiff takes a voluntary nonsuit. The record here, however, discloses that while appellees were present and ready for trial and were insisting on the same, upon the failure of appellant to proceed with the trial a motion was made by appellees to dismiss the suit for want of prosecution, and this was done. We think, therefore, so far as the record discloses, no error was committed.

Finding no reversible error in the record the judgment of the trial court will be affirmed.

Judgment affirmed.


text:
    J. W. Pierce, Plaintiff in Error, v. Southern Railway Company, Defendant in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of St. Clair county; the Hon. George . A. Crow, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 24, 1917.
    Statement of the Case.
    Action by J. W. Pierce, plaintiff," against the Southern Railway Company, defendant, to recover damages for the alleged burning of plaintiff’s residence through defendant’s negligence. From a judgment for defendant, on a directed verdict at the close of plaintiff’s evidence, plaintiff brings error.
    Abstract of the Decision.
    Railroads, § 921

       — when evidence that sparlcs were seen coming out of smolcestaclc of engine is properly excluded in action for loss ■ of property by fire. Testimony by a witness that he saw, on the night plaintiff’s house was burned, sparks coming out of the smokestack of a certain railroad engine a mile away, held to be properly excluded, in an action against the railroad company to recover damages for such burning, where the evidence did not show whether the train testified to was on defendant’s track, or had passed, or was going in the direction of plaintiff’s property.
    Clyde D. Miller, for plaintiff in error.
    Kramer, Kramer & Campbell and R H. Wiechert, for defendant in error; Edward P. Humphrey, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Robert A. Bruce, William F. Bruce and Charles H. Bruce, Appellees, v. Illinois Bankers Life Association, Appellant.
    1. Insurance, § 84

       — when insurable interest is question of fact. It is a question of fact whether a person has an insurable interest in the life of another.
    2. Insurance, § 69* — when life policy is invalid as wagering contract. It is the. policy of the law that all policies of insurance procured by persons on the lives of'others in whom they have no insurable interest are to be construed as wagering contracts and void as against public policy.
    3. Insurance — when insured may substitute as beneficiaries persons having no insurable interest. Section 9 of the Act of July 22, 1893 (J. & A. If 6557), providing that “No corporation doing business of life insurance under this act shall issue a certificate or policy upon * ‘ * * a life in which the beneficiary named has no insurable interest. Any assignment of the policy or certificate to persons having no insurable interest in the insured life shall render such policy or certificate void,” construed with section 24 of that Act (J. & A. V 6572), providing that memberships in any such corporation shall give to any member thereof the right, at any time, with the consent of such corporation, to make a change in the payee or payees, or beneficiary or beneficiaries without requiring the consent of such payee or beneficiary, and held that no limitation was placed on a change of beneficiaries by a person who had in good faith procured insurance on his own life, even though the substituted beneficiaries might not have an insurable interest in the life of the insured.
    4. Insurance, § 84* — when evidence tends to show insurable interest of nephews in life of insured. Where the nephews of the insured in a life insurance policy advanced to him certain money to enable him to keep the policy in force an,d to support himself, in consideration of being made the beneficiaries of the policy, and the' insured accordingly, at his own instance, made a change of beneficiaries and named them as such, long after the policy had been issued to him, held that such evidence and the relationship of the nephews tended to show they had an insurable interest in the life of the insured, and that the naming of them as beneficiaries was not void as against public policy.
    5. Insurance — when mental capacity of insured at time of making change of beneficiaries should be submitted to the jury. Where a change of beneficiaries of a life insurance policy made by the insured was not null and void as against public policy, held that the question of the insured’s mental capacity at the time of making the change should have been submitted to the jury, in an action brought by the original beneficiaries upon the policy.
    Appeal from the Circuit Court of Hamilton county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed October 24, 1917.
    S. S. Hallam and Pearce & Conger, for appellant.
    J. H. Lane and H. Anderson, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, some topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

On November 28, 1912, appellant, the Illinois Bankers Life Association, issued to Albert N. Bruce its certificate or policy of insurance in the sum of $2,000, in which policy or certificate appellees, the three sons of the insured, were named as beneficiaries. In July, 1913, the assured with the consent of appellant changed the beneficiaries in said certificate or policy from appellees, his sons, to B. L. Bruce and W. A. Bruce, Jr., his nephews. .The assured died on May 3, 1914, and the record discloses that settlement was made by appellant with said last-named beneficiaries.

Appellees made proofs of death and payment being refused an action in assumpsit was brought against appellant in the Circuit Court of Hamilton county to recover on said certificate or policy.

The declaration consists of one special count and the common counts, the special count being the ordinary count on a certificate or policy of insurance. To this declaration appellant filed a plea of the general issue and four special pleas. The first special plea alleges the change of beneficiaries with consent of appellant to B. L. Bruce and W. A. Bruce, Jr. The second special plea sets forth certain statements and answers made by the assured in the application for said policy of insurance relative to his health, etc., which said statements and answers said plea avers were,warranties and that they were untrue and rendered said certificate or policy null and void. The third special plea alleges that appellees failed to give notice and make proofs of claim as provided by law. Special plea No. 4 alleges that for a good and valuable consideration B. L. Bruce and W. A. Bruce, Jr. purchased the certificate sued on and paid all premiums thereon and alleges that appellees “had no interest in the result of the policy.”

Various replications and rejoinders were filed, which, without going into a discussion of them in detail, raised the following issues: First, as to whether or not the change of beneficiaries in said certificate or policy was valid; second, as to whether or not the insured at the time of said purported change of beneficiaries was of sufficient mental capacity to transact ordinary business; third, as to whether the insured had made statements with reference to his health, etc., which were warranties and, if so made, as to whether the statements or warranties were untrue; fourth, as to whether proper proofs of claim had been made by appellees.

A trial was had and at the close of all the evidence on motion of appellees the court directed a verdict in their favor for $2,223, being the amount of the face of the policy, with interest thereon at five per cent, from the death of the insured. Judgment was rendered against appellant for said amount and costs. To reverse said judgment this appeal is prosecuted.

The only questions discussed by the parties to this proceeding are with reference to the validity of the purported change of beneficiaries in said policy and the question of mental capacity of the assured at the time of the purported assignment.

Appellant was organized under the provisions of an act entitled “An act to incorporate companies to do the business of life or accident insurance on the assessment plan, etc.,” passed July 22, 1893, in force July 1, 1893. Section 9 of this Statute (J. & A. ft 6557) provides that: “No corporation doing business of life insurance under this act shall issue a certificate or policy upon the life of any person more than sixty-five years of age, except in case of transfer of policy holders as provided herein, nor upon a life in which the beneficiary named has no insurable interest. Any assignment of the policy or certificate to persons having no insurable interest in the insured life shall render such policy or certificate void.” It is the contention of appellees that the nephews of said insured by virtue of the provisions of said section were prohibited from becoming beneficiaries, for the alleged reason that they had no insurable interest in the life of the insured, and that they alone as the original beneficiaries in said certificate or policy would have such right of recovery.

Section 9 of said Statute, so far as we have been able to ascertain, has never been construed by the Supreme or Appellate Courts of this State where a question of the character here raised was involved. In this State the law seems to be pretty well settled that it is a question of fact as to whether a person has an insurable interest in the life of another. Guardian Mut. Life Ins. Co. v. Hogan, 80 Ill. 35; Cisna v. Sheibley, 88 Ill. App. 385; Dresen v. Metropolitan Life Ins. Co., 195 Ill. App. 292. It has even been held that it does not necessarily follow that a son has an insurable interest in the life of his father, and whether he has such interest or not depends on the facts and circumstances growing out of the particular case. Guardian Mut. Life Ins. Co. v. Hogan, supra.

It has been the policy of the law generally, and particularly of this State, that all policies of insurance procured by persons on the lives of others in whom they have no insurable interest are to be construed as wagering contracts and void as against public policy. Guardian Mut. Life Ins. Co. v. Hogan, supra; Dresen v. Metropolitan Life Ins. Co., supra; Cisna v. Sheibley, supra; Ruse v. Mutual Ben. Life Ins. Co., 23 N. Y. 516.

Section 9 must be construed in connection with the remainder of said statute, and particularly with section 24. Section 24 (J. & A. 6572) provides that: “Memberships in any such corporation shall give to any member thereof the right, at any time, with the consent of such corporation, to make a change in this [the] payee or payees, or beneficiary or beneficiaries without requiring the consent of such payee or beneficiaries.” The certificate or policy in question was not talien out by appellees, the original beneficiaries, nor by the nephews of said deceased, the substituted beneficiaries, but was taken out by the assured himself, and under the express language of the statute he had the absolute right to change the beneficiary or beneficiaries in said certificate or policy at any time by obtaining consent of appellant company, and this without the consent of appellees, the original beneficiaries. This statute nowhere provides any limitation on the persons who may be beneficiaries in the policy or certificate to be issued by the insurance corporation organized under the same, except so far as the same may be limited by said section 9. We think also that in construing said section 9, it should be construed in the light of the holding of the Supreme and Appellate Courts prior to the passage of said act. By an examination of those cases it will be ascertained that there is a clear distinction between those who may be named as beneficiaries in the policy or certificate of insurance taken out by the assured on his own life and policies or certificates of insurance that may be taken out by third persons on the life of another.

When the assured takes out a policy or certificate on his own life it has been the policy of the law of this State to allow him to name as beneficiaries any person or persons that he may see fit, unless limited to a class or classes specifically named in the statute or in the charter of incorporation. Bloomington Mut. Ben. Ass’n v. Blue, 120 Ill. 121; Guardian Mut. Life Ins. Co. v. Hogan, supra; Martin v. Stubbings, 126 Ill. 387; McMahon v. Feldman, 139 Ill. App. 624; Delaney v. Delaney, 175 Ill. 187; Moore v. Chicago Guaranty Fund Life Society, 178 Ill. 207; Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457.

The authorities in this State are also to the effect that the beneficiary named by the assured, who takes out a policy on his own life, need not have an insurable interest in the life of the assured. Bloomington Mut. Ben. Ass’n v. Blue, supra; Martin v. Stubbings, supra; Connecticut Mut. Life Ins. Co. v. Schaefer, supra.

In view of the policy of the courts of this State to allow the assured who has in good faith taken out a policy of insurance on his own life to name the beneficiaries, without restriction, except where restricted by statute or the charter or by-laws of the insurance company or association, and in view of the provisions of said section 24 above referred to, we hold that said section 9 was not intended to limit a change of beneficiaries by a person who had in good faith procured insurance on his own life, even though the substituted beneficiaries might not have an insurable interest in the life of the assured.

In section 24 a change of beneficiaries is referred to, while in section 9 an assignment is referred to. The assured, therefore, had the undoubted right to name his nephews as beneficiaries under the policy or certificate in question.

The Supreme Court in discussing the right of a beneficiary under a policy issued by a corporation organized under the same act appellant was organized under, in McMahon v. Feldman, supra, at page 626 says: “The policy involved in this case is an ordinary life insurance policy payable to the estate of the insured. The insured had an insurable interest in his own life and had the right to procure a policy and have it payable to his estate or to any one whom he might appoint by will or any other mode,” citing, Bloomington Mut. Ben. Ass’n v. Blue, 120 Ill. 121; Martin v. Stubbings, 126 Ill. 387; Delaney v. Delaney, 175 Ill. 187; Underhill on Wills, section 56.

We are also of the opinion that the evidence in the record tended to show that the nephews of the assured, by virtue of their relationship to him in connection with the facts surrounding the transaction, had an insurable interest in the life of the assured. The evidence tended to show that the insured was without property; without a home; without the necessary funds to care for himself, and to keep up the assessments on the policy in question; that he was anxious to procure funds for his own support and to pay the assessments on the policy for the reason, among others, that the policy contained a total disability clause in which the said assured had a direct interest; that after repeated solicitation on the part of the insured, the nephews agreed to pay or advance to the assured $300 if they were named as beneficiaries. This change of beneficiaries was made at the instance of the insured for his own pecuniary benefit and in order to gain funds with which to support himself and to pay the assessments on the policy or certificate. The naming of his nephews as beneficiaries by the assured was not against public policy, as the record discloses the policy had been taken out by the assured, long prior to the change in beneficiaries, and without said nephews having had anything to do with the original issuance of said policy.

On the remaining question, as to whether the court should have submitted the question of the mental capacity of the assured to transact ordinary business at the time of the change made by him in the beneficiaries in his policy, it is only necessary for us to say that, in view of our holding that the change of beneficiaries by said assured was not null and void, the question of the mental capacity of the assured should have been submitted to the jury for their determination.

For the reasons above set forth, the judgment of the trial court is reversed and said .cause will be remanded.

jReversed and remanded.


text:
    Henry Appel, Appellee, v. Alton, Granite & St. Louis Traction Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of Granite City; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 24, 1917.
    Rehearing denied January 10, 1918.
    Statement of the Case.
    Action by Henry Appel, plaintiff, against the Alton, Granite & St. Louis Traction Company and the Bast St. Louis & Suburban Railway Company, defendants, to recover damages for personal injuries sustained while alighting from the car of the former defendant. From a judgment for plaintiff for $1,250 against the former defendant, the case against the latter defendant being dismissed, the former defendant appeals.

      Abstract of the Decision.
    1. Appeal and error, § 1410

       — what considered in determining whether verdict against weight of evidence. In determining whether a verdict in a personal injury case is against the manifest weight of evidence on appeal, the fact that the jury, who are the judges of the credibility of witnesses, saw and heard the witnesses testify and had an opportunity to observe their demeanor on the stand, and to judge of their apparent fairness or unfairness, knowledge or lack of knowledge, in connection with the matters testified to by them, and that the trial judge, who saw and heard the witnesses testify, overruled a motion for a new trial, based upon the claim that the verdict was against the weight of evidence, must be taken into consideration.
    2. Carriers, § 278* — what degree of care required towards passengers. It is the duty of common carriers of passengers to exercise the highest degree of care and caution for their safety and to do all that human foresight can reasonably do to prevent accidents to them consistent with the mode of conveyance and the practical operation of the railway.
    3. Carriers, § 390* — when duty is imposed upon to provide step or appliance for alighting passenger. Where a street car motorman states to a passenger in the front vestibule desiring to alight on the left side, instead of on the proper side, of the car, that he will open the wire gate for him, it becomes the duty of the company to provide a step or other appliance by which the passenger can alight in safety.
    4. Carriers, § 460* — when presumed to he negligent in causing injury to passenger resulting from own apparatus. Where an injury to a passenger is caused by apparatus wholly under the control of the carrier and furnished and applied by it, and the accident is of such a character as does not ordinarily occur, if due care is used, the law raises the presumption of negligence, but this presumption arises from the nature of the accident and attending circumstances and not from the mere fact of the accident.
    5. Carriers, § 480* — when due care of passenger alighting from

      left side of car "before step is lowered is question for fury. In an action by a street car passenger for personal injuries sustained as the result of being struck by the rear end of a moving car upon falling after alighting from the left "side of the front vestibule of the car, owing to the fact that the step had not yet been lowered by the mo’torman, held that it was a question for the jury whether plaintiff was in the exercise of due care for his own safety.

      Williamson, Burroughs & Ryder, for appellant.
    J. M. Bandy, for appellee.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic- and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

6. ' Negligence, § 191 — when question for jury. Where the facts are such that reasonable men of fair intelligence may draw different conclusions, the question of negligence must be submitted to the jury.

7. Instructions, § 151* — when properly refused. It is not error to refuse requested instructions covered in the main charge.


text:
    David C. Wheeler, Appellee, v. Southern Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. H. L. Browning, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed October 24, 1917.
    Statement of the Case.
    Action by David C. Wheeler, plaintiff, against The Southern Railway Company, defendant, to recover an alleged indebtedness growing out of the employment of plaintiff by defendant as a lamplighter. From a judgment for plaintiff for $75 by the City Court of East St. Louis, on change of venue from the Circuit Court, to which the case was appealed from a judgment by a justice of the peace before whom the action was originally brought, defendant appeals.
    Kramer, Kramer & Campbell, R. H. Wieohert and J. W. Freels, for appellant; Edward P. Humphrey, of counsel.

      Abstract of the Decision.
    1. Appeal and error, § 1787* — when judgment reversed pro forma. Where no brief is filed by appellee, a judgment will be reversed pro forma under Appellate Court Rule 27.
    •2. Master and servant, § 84* — when verdict for plaintiff in action for services is against weight of evidence. In an action by an employee to recover an alleged indebtedness growing out of the employment of plaintiff by defendant as lamplighter, the verdict and judgment for plaintiff held to be against the manifest weight of the evidence.
    No appearance for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.