author: Mr. Justice Dibell

text:
    Harold Yost, Administrator, Appellee, v. Anna L. Eckart, Executrix, Appellant.
    Gen. No. 6,381.
    1. Bills and notes, § 440

      —what is not proof of allegation as to mistake in name of payee. The averment in a declaration, in an action upon a promissory note made payable to a name other than the plaintiff’s and not indorsed, that such name was a mistake and that plaintiff’s name was intended, was a material allegation required to he proved, and was not proved hy plaintiff’s mere possession of the note.
    2. Bills and notes, § 319*—what is right of action on note in possession payable to order. The mere possession of a promissory note payable to the order of a person named which has not been assigned in blank or to the plaintiff does not entitle him to recover thereon in his own name under the common counts in assumpsit.
    3. Bills and notes, § 350*—when unnecessary to verify plea by affidavit. A defendant may deny his liability under a promissory note executed by him and made payable to his own order but not indorsed without verifying his plea by affidavit.
    4. Bills and notes, § 23*—what is sufficient signature to note. The maker of a note cannot deny its execution, even though the signature was not written by his own hand, if it was written in his presence with his approval by his agent or clerk.
    5. Witnesses, § 118*—when daughter of deceased may testify in action on note executed by him. The daughter of a decedent was a competent witness, in an action upon a promissory note executed by him, as to the circumstances under which he executed it where he left a will by which he gave all his property to her mother, as she was not an interested witness.
    6. Bills and notes, § 431*—what evidence is admissible to show mistake as to name of payee. Testimony as to conversations preceding the signature of a promissory note by the maker for the purpose of showing whether the payee’s name was a mistake and another name was intended was competent under an issue as to that fact raised by allegations in the declaration and plea of general issue.
    7. Bills and notes—when evidence shows that note was not made payable by mistake to named payee. Evidence held sufficient to show that the note sued on was not made payable by mistake to the order of the payee named therein, the maker thereof, and that it was not intended to be made payable to the order of plaintiB.
    Appeal from the Circuit Court,of La Salle county; the Hon. Edgab Eldredge, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1916.
    Reversed with finding of facts.
    Opinion filed February 12, 1918.
    Browne & Wiley and Stead, Woodward & Hibbs, for appellant.
    Butters & Clark, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

On August 31, 1914, Harold Yost, as administrator of the estate of Louis Eckart, deceased, recovered in the Circuit Court of La Salle county a judgment by confession against John Eckart upon a judgment note, which, omitting the power of attorney, is as follows: “$5,000.00. Mendota, Ill., May 25, 1912. 2 years after date, value received I promise to pay to John Eckart or order Five Thousand Dollars, at the....................with 4 per cent, interest per annum from Date.

;*###•*###

John Eckart (Seal)

Per Nel Eckart (Seal)

P. O. Mendota, Ill.”

Thereafter John Eckart obtained an order of court opening the judgment and giving him leave to plead. As shown above, the instrument was signed by John Eckart and was payable to his order, and it was not indorsed. The declaration contained this averment on that subject:

“in and by which note the said defendant by the name, style and description of John Eckart, per Nel Eckart, promised to pay to the order of the said plaintiff’s intestate, by the name, style and description of John Eckart, the name ‘John’ instead of ‘Louis’ being contained in the name of the payee of said note by mistake caused by using a printed form containing the name ‘John Eckart’ as payee.”

• Defendant pleaded the general issue. Thereafter he died. By leave of court plaintiff amended said declaration by substituting as the defendant Anna L. Eckart, executrix of the estate of John Eckart, deceased, and by adding the common counts. An order was entered that the plea of the general issue stand to the declaration as amended. A jury was waived, the cause was tried and plaintiff had a judgment for $5,750, and costs, to be paid in due course of administration. This is an appeal by the defendant from that judgment. We reversed the judgment and afterwards granted a rehearing.

Upon the trial plaintiff introduced the note in evidence and proved that he found it among the papers of Louis Eckart after the decease of the latter, and that after the funeral, in the presence of the children of deceased, he opened a receptacle kept by the deceased,, and produced therefrom, amqng other things,- an envelope containing a number of promissory notes, including the instrument here sued on, and an account book in the handwriting of deceased, in which were set down a list of many notes given by various persons, and stating in each case the date and amount, and containing, among other things, the name of John Eckart, and a note for $5,000, dated 20 days earlier than the note here sued on. A list of the notes in the envelope was made out and the list of notes in the book was read over in the presence of the children, including John Eckart, and none of them made any remark. This was the substance of all the evidence offered by plaintiff.

The averment in the declaration that the name to which the note was payable was a mistake and that something else was intended was a material allegation, and was required to be proved in order to make a case under the special count of the declaration. Plaintiff relies upon the possession of the note by the deceased at the time of his death. That possession was evidence tending to show that the note had been delivered to him, and that he owned it, under the authorities cited by us in O’Connor v. Messenger, 183 Ill. App. 1, but that does not prove the allegation above quoted from the special count. Chenot v. Lefevre, 8 Ill. (3 Gilm.) 637, was similar, and it was held there that such an averment might be made in the declaration, but that it was necessary to prove it, and to prove that the plaintiff was the person intended as payee, and that that was a material allegation, and was not established by the mere fact that plaintiff had possession of the note. In Bonner v. Gordon, 63 Ill. 443, Bonner alleged that the note sued on was payable to himself by the name and style of The First National Bank of Centralia. It was held that this averment would not be proved by the mere production of the note, and that the note on its face raised no presumption that it was made payable to Bonner by the name mentioned in the declaration, and that that allegation would have to be proved on the trial. The plaintiff here, therefore, did not prove the case stated in the special count. Plaintiff also relies upon paragraph 3, sec. 9, of the Negotiable Instruments Law (J. & A. ¶ 7648), which provides that an instrument is payable to bearer when it is payable to the order of a person known by the drawer or maker to be fictitious or nonexistent or a living person not intended to have any interest in it. This instrument was drawn by John Eckart, and was payable to John Eckart or order, and was not indorsed. It was not drawn to the order of a person who was fictitious or nonexistent, for John Eckart was a real person, and the court was not authorized by the proofs introduced by plaintiff to assume or consider that it was proved that John Eckart was not intended to have any interest in it. It is a common practice for a party to make a note payable to Ms own order. Said Negotiable Instruments Law, in section 183 (J. & A. ¶ 7823), expressly declares the status of such a note in these words: “Where a note is drawn to the maker’s own order it is not complete until indorsed by him.” This was the law before that act was passed. In Kayser v. Hall, 85 Ill. 511, speaking of a note payable to the order of the maker, it was said: “A note can never have any validity until the name of the payee appears upon it as an indorser.” This language is quoted from earlier decisions. We so held in Murphy v. Schoch, 135 Ill. App. 550. We are of opinion that the mere possession of a promissory note payable to the order of a person named, which has not been assigned in blank or to the plaintiff, does not entitle him to recover thereon in Ms own name under the common counts in assumpsit. Therefore, we conclude that the plaintiff did not prove a case entitling him to recover in this action of assumpsit.

Defendant introduced the testimony of Mrs. Williena McDonald, to show the circumstances under which this note was executed, and to show that it was not intended to be enforceable. Plaintiff contends that this evidence was incompetent (1) .because the allegations above quoted from the special count could not be contradicted by defendant, as the plea had not been verified by affidavit; (2) because Mrs. McDonald was incompetent to testify; (3) because this was an effort to vary a written instrument by what was said before it was executed, which is not permissible.

We think the objection made by plaintiff to this evidence because the plea was not verified is not maintainable. Eckert could not deny the execution of this note for though the signature was not written with his own hand, it was written in his presence with his approval, by his daughter, who acted as his agent or clerk. We think the. language used in Frankland v. Johnson, 147 Ill. 520, is applicable. There the suit was on a note, and it was claimed that this defense was not admissible because the plea was not verified by affidavit. In overruling this objection the court there said on p. 524: “The defendant did not claim the right, on the trial, to deny the execution of the note. He admits that fact, but denies that, as executed, it became his personal obligation. This, we think, he might do without a sworn plea.” Here, defendant was not denying the execution of the note payable to his own order, but he was denying that thereby he became liable upon that note without indorsement.

We fail to see how Mrs. McDonald could be an incompetent witness. True, she was the daughter of John Eckart, who had died before the trial, but she testified orally that her father left a will, by which he gave all his property to her mother. At first this was objected to because the will itself was not produced, but afterwards that objection was withdrawn and counsel for the plaintiff also stated that the testimony of the witness on that subject was correct. Mrs. McDonald therefore has no interest in the estate of her father, and, in our opinion, she was a competent witness in this case.

Plaintiff contends that the testimony of Mrs. McDonald was incompetent because it was of .conversations preceding the signature of the paper. Under many circumstances that would be a valid objection, but here plaintiff pleaded that there was a mistake in the drawing of the note, and that it was intended that the name of the payee should be Louis Eckart. That allegation was traversed by the plea of the general issue and the evidence was competent on that subject.

The evidence of Mrs. McDonald showed that her grandfather, Louis Eckart, and her father lived in the same town; that John Eckart had been for many years and was then in the harness business; that he was much afflicted with shaking palsy; that because of that affliction he was unable to write, and had for -many years required her assistance as clerk and business manager; that he had from time to time for some years borrowed money of his father and given notes therefor, which, at the time in question, aggregated about $5,000; that on the date of the day of the note, Louis Bckart came to his son’s office, where his son and Mrs. McDonald were present, and said that he wished to make his son a present of these notes which he held against him, amounting to $5,000, but that he wanted some paper or memorandum to place with his other papers; that he directed Mrs. McDonald to prepare a new note for $5,000 on the printed blank notes that his son used, and to make it due in 2 years with interest at 4 per cent, per annum; that she did prepare said note on one of the said blanks, which had on it in print that it was payable to the order of John Bckart; that she then said to Louis Bckart that the note as it was written would not be collectible, and that he replied that it was exactly as he wanted it—that he did not intend it should be collected; that by his direction she signed the name of John Bckart to it; that John Bckart looked over the paper and said that he was satisfied and Louis Bckart went away with the note; that after-wards, while her grandfather still lived, she saw in her father’s house the several notes her father had formerly given to Louis Bckart, aggregating about $5,000. This evidence is fuller than we have stated it, and is more fully understood by reading it in the record. It is positive and unequivocal testimony that this instrument was not intended to be payable to Louis Bckart and was not intended to be enforced or to be enforceable, and that it was a process which Louis Bckart adopted by which he gave his son all the notes then outstanding, amounting in the aggregate to about $5,000, as a pure gift, and that he did not intend that this note should take their place or ever be enforced by him or any one after him. Why he wanted such a paper to put with his other notes is not fully explained, The inference is created by the testimony that he thought that some other person might examine his papers during his lifetime and he did not want such person to realize that he had given his son, John, these $5,000, but wished such person to see this paper calling for $5,000 signed by John and to suppose that the debt was still in existence. Mrs. McDonald, was not impeached, and we do not see that her cross-examination impaired the strength of her testimony; and while it is a fact that it may be false and perjured, we do not see how the court can say so in the absence of anything casting any doubt upon it except the mere suspicion of those who lose by it, and the fact that her mother will profit by it if it is believed. We therefore conclude that the plaintiff is not entitled to recover, and the judgment is therefore reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment.

We find from the evidence that the note sued on was not made payable to the order of John Eckart by mistake; that it was not intended to be made payable to the order of Louis Eckart.


source: Caselaw Access Project

license: Public Domain

text:
    Frank Kingsley, Administrator, Appellee, v. Farmers Lumber & Grain Company, Appellant.
    Gen. No. 6,458. (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehatjs, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Action by Frank Kingsley, administrator of the estate of Cloyd Kingsley, deceased, plaintiff, against Farmers Lumber & Grain Company, defendant, to recover damages for the death of plaintiff’s intestate. From a judgment for plaintiff for $5,000, defendant appeals.
    Defendant’s grain elevator and engine room 20 feet distant were connected by an iron shaft, used to convey power to the elevator, resting on supports every 8 feet, and such shaft was about 2 feet and 3 inches from the ground. The intestate, a child 8 years and 3 months old, was killed while playing with the shaft by his overcoat becoming caught in it and whirling him around. The shaft was not observable from the street but was from a runway into the elevator up which teams drove from the street, the runway being within 6 feet of the shaft, and the revolutions of the shaft being’ observable for 15 feet.
    Joseph W. Maple and Dailey & Miller, for appellant.
    Weil & Bartley and Jesse Black, Jr., for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

1. Appear and bbrob, § 1672 —when sufficiency of declaration cannot be questioned on appeal. The sufficiency of a declaration cannot be questioned on appeal after defendant pleaded over upon overruling of its demurrer to the declaration and made no motion in arrest of judgment, and the supposed defects in' the declaration were merely technical.

2. Negligence, § 25*—when duty lies upon owner of land to heep premises in safe condition for benefit of children. The occupant of land is under no obligation to strangers to keep his premises in a safe condition for the benefit of those who come upon his premises for their own pleasure without his invitation, except as to a child of tender years if the things causing the injury have been left exposed and unguarded and are such as to appeal to his childish curiosity and instincts.

3. Negligence, § 45*—what care required of owner to heep premises having upon them dangerous attractions for children safe. Unguarded premises having upon them dangerous attractions to a child of tender years are treated as holding out implied invitations to such a child, and the occupant of such premises must use ordinary care to keep them in safe condition.

4. Negligence, § 45*—when evidence shows that children might reasonably be expected near shaft in elevator. Evidence held sufficient to warrant the finding that defendant might reasonably expect children near the power shaft, by which plaintiff’s intestate was injured, in defendant’s grain elevator, and in sight of such shaft, and a child to be attracted to the shaft from a runway into the elevator, from a place where the child might reasonably be expected to be, within the meaning of the rule that a dangerous thing must be so located as to attract a child from some place where it might be expected to be in order to charge the occupant of the premises with liability for injuries to such child.

5. Negligence, § 45*—when evidence shows that power shaft is attractive to childish instincts. Evidence held sufficient to warrant the finding that a power shaft, on which plaintiff’s intestate was injured, in defendant’s grain elevator was attractive to childish instincts and that plaintiff’s intestate was attracted to it by his childish instincts when he was at a place where children were permitted to be, and must have been expected by defendant to be, namely, a runway into the elevator.

6. Instbuctions, § 20*—when instruction that rulings of court in refusing to direct verdict should not be considered is incompetent. An instruction that the jury should not consider certain rulings of the court in refusing to direct a verdict for the defendant, as containing an intimation that defendant was liable, was not competent unless it should be made to appear that the rulings were made in the presence and hearing of the jury.

7. Instructions, § 151*—when properly refused. ■ Proffered instructions covered by the main charge are properly refused.

Niehaus, J., took no part.


text:
    The People of the State of Illinois, Defendant in Error, v. Henry Huyvaert, Plaintiff in Error.
    Gen. No. 6,478.
    1. Pardon and parole—when probation should be granted as to entire case. Where twenty-four counts of an information under the Anti-Saloon Act were alike, except as to the dates of some of the alleged illegal sales stated under a videlicet, to all of whi(jh defendant pleaded guilty and asked to be placed on probation, held that the court, in the exercise of its discretion, should have been granted or denied probation as to the entire case and not as to part only.

    2. Criminal law, § 372

      —necessity of judgment on all counts in indictment as a unit. The offenses set up in different counts of an indictment are so far tied together by the indictment that all must be tried at one time, and judgments on the several counts must all be entered together as a unit.
    3. Criminal law, § 373a*—when judgment becomes final and op-prates as discontinuance as to remaining counts in indictment. Where a defendant pleaded guilty to all counts of an indictment and was fined on one and placed on probation as to the other counts, held that the judgment could have been vacated before payment of the fine or imprisonment for nonpayment at the same term and another judgment entered under the entire indictment, but after that term the judgment would be final and amount to a discontinuance as to the remaining counts, and all further proceedings at a later term terminating in judgments of fine and imprisonment under the remaining counts were without authority of law.
    4. Courts, § 92*—what is not within power of County Court. The County Court has no power to appoint a probation officer for the enforcement of the criminal law.

      5. Officers, §'17

      —who is not a de facto officer. The appointee of a County Court as a probation officer in a criminal case is not even a de facto officer.
    6. Pardon and parole—when unsworn statement of officer gives County Court no jurisdiction to vacate probation order. The unsworn statement of one who was illegally appointed as a probation officer in a criminal case that a party placed by the court on probation had violated his probation gave the court no authority to vacate the order admitting the party to probation or to authorize his arrest, and did not justify a rule upon him to show cause why his probation should not be terminated.
    Error to the County Court of Rock Island county; the Hon. Nels A. Larson, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and defendant discharged.
    Opinion filed February 12, 1918.
    Cyrus E. Dietz, for plaintiff in error.
    Floyd E. Thompson, for defendant in error.

      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 Dibell

delivered the opinion of the court.

On October 19, 1916, the mayor of Moline filed in the County Court of Bock Island county an information against Henry’ Huyvaert, twenty-four counts of which charged him with unlawful sales of intoxicating liquor in anti-saloon territory, and the twenty-fifth charged him with keeping a nuisance. He pleaded guilty and asked to be admitted to probation. That request was denied as to the first count and was granted as to all the other counts. A sentence of fine and costs was imposed upon him under said first count and he was admitted to probation under the other counts and placed in charge of Judson D. Metzgar, as probation officer. At some time before the steps hereinafter narrated, defendant paid the fine imposed under the first count and the costs of suit. At a later term Metzgar filed a report that defendant had violated his probation. This report was not under oath. Thereupon the court entered an order, vacating the probation and directing that a writ issue for the arrest of defendant, and he was arrested and brought into court. The court then entered a rule upon defendant to show cause why his probation should not be terminated and sentence imposed on the remaining counts. Defendant applied for a change of venue from the trial judge. That application was heard and denied. Defendant asked for a jury trial upon the question whether his probation should be terminated. That application was heard and denied. Defendant moved the court to deny the application to terminate his probation. That motion was heard and denied. Defendant then asked leave to withdraw his plea of guilty and to plead not guilty. That motion was heard and denied. Defendant moved in arrest of judgment and that motion was denied. Defendant then asked the court to examine witnesses as to the aggravation and mitigation of the offense as required by section 4 of division 13 of the Criminal Code (J. & A. ¶ 4121). That application was denied. Thereupon at the July term, 1917, of said court, the defendant was sentenced under the last twenty-four counts of said indictment, under some of them to successive imprisonments, and under others to pay fines. Defendant preserved these various proceedings by several bills of exceptions, and has sued out this writ of error to review the record.

Section 3 of the Act (J. & A. ¶ 4174) establishing a system of probation provides that the court may grant a release on probation in the discretion of the court, if it shall appear to the satisfaction of the court both that there is reasonable ground to expect' that the defendant maybe reformed and that the interests of society shall be subserved. The first twenty-four counts were alike, except that the dates of the alleged illegal sales stated in the different counts, under a videlicet, were not all the same. The dates in the first and second counts were the same, and they are practically identical. We do not understand how the court, in the reasonable exercise of a sound judicial discretion, could determine that there was reasonable ground to expect that the defendant might be reformed and the interests of society subserved by his release on probation as to the last twenty-four counts, and grant that probation, and at the same time come to the contrary conclusion as to the first count. He should have been granted or denied probation as to the entire case.

Defendant contends that the first judgment disposed of the entire case. The People contend that each count states a separate offense and there can be a judgment under one count at one term and under another count at another term, citing a number of early decisions in this State. We so held in effect in Grom v. People, 135 Ill. App. 453, and Gaul v. People, 136 Ill. App. 445, and cited the same line of authority here relied upon by the People. Our decision in the latter ease was reversed by the Supreme Court in People v. Gaul, 233 Ill. 630. In that case Q-aul was convicted of unlawful sales of liquor to minors under counts numbered 5, 7, 11 and 25. Each count charged a sale to a different minor, and therefore charged an offense wholly distinct from the offense charged by any other count. The fifth count charged a sale to a minor named John Carr. We held that a certain instruction given for the People erroneously withdrew from the jury the question whether Carr was, in fact, a minor when the sale was made, and we reversed and remanded the cause as to the fifth count and affirmed it as to the others. The Supreme Court held that the judgment of the County Court, though based on different counts, was so far a unit that it should be wholly affirmed or wholly reversed by us. If our judgment had not been reviewed at that time, there could have been another trial in the County Court under said fifth count and, if at some future time, the Supreme Court on writ of error had reversed the judgment as to one or more of the remaining counts, he could at some other term have been placed on trial under said other count or counts, and thus thé trial court could have entered judgment at different terms under different counts of the same information, a condition which would be permitted by the course pursued in the court below in the present case. The decision of the Supreme Court in the Gaul case, supra, required the entire trial and judgment under that information to be a unit. Similar questions have been considered in other courts. In Edgerton v. Com., 5 Allen (Mass.) 514, there had been a trial on an indictment containing three counts, a verdict of not guilty under the first, and guilty under the second, and no verdict under the third. The trial court entered a judgment against the defendant on the second count. Defendant contended that the case had not been disposed of as to the third count and therefore the judgment was premature. It was held that the judgment under the second count disposed of the whole indictment and that the proceeding amounted either to an acquittal of defendant under the third count, or a discontinuance under the third count, and that the judgment rendered made any further proceedings under the third count impossible. In Com. v. Foster, 122 Mass. 317, defendant had been found guilty as to each of four counts of an indictment. At the December term, 1873, the trial court sentenced him under the first and second counts. At the December term, 1876, the defendant was brought in and sentenced under the third count. It was held that it was not in the power of the trial court, after having rendered one sentence, to impose another sentence at a later term. In the case entitled In re Beck, 63 Kan. 57, 64 Pac. 971, the defendant was indicted under six counts for violation of the liquor laws, and was tried and found guilty, and entered a motion in arrest of judgment. In March, 1898, the motion in arrest was overruled as to one count and a final judgment of fine and imprisonment under that count was imposed, and the motion in arrest was continued as to the other counts. At a later term the court overruled the motion in arrest as to the five remaining counts and sentenced the defendant to fine and imprisonment under each of those counts. In forcible language and upon convincing reasoning it was held that the course pursued was not authorized by law, and that the judgment on the first count was a final judgment • and was the end of the prosecution. In People v. Felker, 61 Mich. 110, defendant pleaded guilty to a violation of the liquor laws and was sentenced to pay a fine of $75, and it was ordered that the further judgment of the court be deferred to the next term, and at the next term he was sentenced to imprisonment. It was held that a judgment in a criminal case cannot be divided up and parceled out and pronounced from time to time by the court, and that there was neither law nor precedent for such a course. The judgment was reversed and the defendant discharged. In 2 Bishop’s New Criminal Procedure, sec. 1291, it is stated that the entire sentence must be pronounced at one.time and not in parcels. Under the decision of the Supreme Court in the Gaul case, supra, and these other authorities we hold that, while the People can unite in one indictment or information several distinct misdemeanors and there must necessarily be a separate judgment for each separate offense of which the defendant is convicted or pleads guilty, yet the offenses are so far tied together by the indictment that they must be tried at one time, and the judgments must all he entered together as a unit. Doubtless, before the end of that term and before the defendant had paid the fine and costs imposed under the first count, or had been imprisoned for nonpayment, the court could have vacated that judgment and entered another under the entire information (8 R. C. L. 243); yet, when the term ended without that having been done, the judgment entered was final and amounted to a discontinuance as to the remaining counts, and all further proceedings at later terms, terminating finally in the judgments of fine and imprisonment under the other counts, were without authority of law.

The County Court has power to appoint a probation officer under certain statutes in relation to charities and pensions of dependent mothers, but has no authority to appoint a probation officer for the enforcement of the criminal law. The power to appoint such probation officers is vested in Circuit Courts and City Courts by section 9 of the Act (J. & A. ¶ 4180) providing for a system of probation. It was made to appear that there was a probation officer for Bock Island county appointed by the Circuit Court, but Metzgar had not been so appointed. The appointment of Metzgar to take charge of the defendant in this case was therefore void. As there was a de jure officer appointed by the Circuit Court, and as the County Court had no authority of law to appoint such a probation officer, Metzgar was not even a de facto officer, but was a stranger to whom the statute did not authorize the County Court to commit the defendant. It is argued that no affidavit was necessary to the report of Metzgar that defendant had violated his probation, because he was acting under the sanction of an official oath. Not being an officer, he had taken no official oath. His unsworn statement that the defendant had violated his probation could not give the court authority to vacate the order admitting the defendant to probation, or authorize the court to issue a writ for the arrest of the defendant, nor justify a rule on defendant to show cause why his probation should not be terminated.

These considerations dispose of the case and.make it unnecessary to discuss other questions argued by counsel.

As defendant has paid the first judgment and the costs of suit, and the court had no jurisdiction after the term at which the first judgment was entered, no reason exists for-remanding the cause. The judgment is therefore reversed and the defendant is discharged.

Reversed and defendant discharged.


text:
    The People of the State of Illinois, Defendant in Error, v. Frank Wancoski, Plaintiff in Error.
    Gen. No. 6,489.
    1. Criminal law—when plea of not guilty stands to amended count of information. Where, after defendant had pleaded not guilty to an information charging him with violation of the anti-saloon law, the count was amended by striking out the word “brick” and inserting the word “frame” in describing the building, to which amended count no plea was filed, held that the defendant had the right to plead anew to the amended count, but, if he did not, the original plea stood to the amended count.
    2. Intoxicating liquors, § 122

      —when building in which offense is committed is sufficiently described in information. The word “brick” used in an information in describing the building in which a charged violation of the anti-saloon law occurred was unnecessary to the description and could have been stricken out without inserting the word “frame” as an amendment.
    3. Intoxicating liquors, § 151*—when evidence sustains conviction for illegal sale in anti-saloon territory. Evidence held sufficient to warrant a verdict of guilty, in a prosecution for the illegal sale of intoxicating liquor in anti-saloon territory.
    Error to the County Court of Lake county; the Hon. David T. Smiley, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Max Przyborski and George W. Field, for plaintiff in error.

      James G. Welch, for defendant in error.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Frank Wancoski was convicted in the County Court below on the first and thirty-first counts of an information charging him with the unlawful selling of intoxicating .liquor in anti-saloon territory, and was sentenced to pay a fine of $100 under each of said counts and to imprisonment in the county jail for 20 days under each count, and brings that conviction in review, upon this writ of error. The thirty-first count was a nuisance count and described the premises as a certain room on the first floor of a certain one-story brick building, located at 1208 South “Indiana avenue in the City of North Chicago. After defendant had pleaded not guilty, the State, by leave of court, amended said count by striking out the word “brick” in the description of said building and inserting the word “frame.” This was done shortly after the trial began and after a plea of not guilty had been interposed. Defendant did not plead to the count as amended. The principal contention of defendant here is that it was error to try defendant without a plea of not guilty interposed after such amendment.

In Truitt v. People, 88 Ill. 518, quoting from Lord Mansfield, it is said that there is a great difference between amending indictments and amending informations; that informations are as declarations in the King’s suit, and by leave of court the officer of the Crown may amend in like manner as any plaintiff may; and “If the amendment can give occasion to anew defense, the defendant has leave to change his plea; if it can make no alteration as to the defense, he does not want it.” This was approved in Long v. People, 135 Ill. 435, where an information was treated as a declaration in the King’s suit and amendable as such. If this is to be tested by the rules governing pleadings in common-law actions, then while defendant had a right to plead after the amendment, if he desired, yet, if he did not do so, his former plea, capable of answering the information as amended, still stood. In Wright v. Hollingsworth’s Lessee, 1 Pet. (U. S.) 165, the practice on that subject is thus stated.

“The authorities cited by the learned counsel do not, we think, support his last position, that the judgment is erroneous because a plea was not filed to the new count. They prove, unquestionably, that, upon the amendment being made to the declaration by adding a count, the defendants had a right to plead de novo; they prove nothing more. They do not show that the defendants in such cases must necessarily plead de novo, or that judgment may be entered by default for want of a plea to the new count, if, before the amendment, he has pleaded the general issue. We think the practice is well settled to the contrary. The defendant has a right, if he will, to withdraw his former plea, and plead anew either the general issue or any further or other pleas which his case may require; but he may, if he will, abide by his plea already pleaded, and waive his right of pleading de novo. His failure to plead and going to trial without objection are held to be a waiver of his right to plead, and an election to abide by his plea; and if it, in terms, purports to go to the whole action, as is the case in this instance, it is deemed sufficient to cover the whole declaration, and puts the plaintiff to the proof of his case on the new as well as on the old counts.” This rule was recognized in Milwaukee Mechanics’ Ins. Co. v. Schallman, 188 Ill. 213, as follows: ‘ ‘ The plea of the general issue had already been filed by the appellant, and this plea was sufficient after the declaration was amended, in the respect above mentioned. Any defense, which could have been made to the declaration as amended, could have been presented under the plea of general issue which was already filed.” We applied this rule of practice in Dubois v. Robbins, 115 Ill. App. 372, in the following language: “If there be an original declaration and a plea thereto; and afterwards a new count be filed, while the defendant may plead anew thereto, yet on the other hand he may waive his right to plead de novo, and may abide by his plea already filed, if it is sufficient to constitute an answer to the additional count. In such case, if he fails to plead to the additional count, and goes to trial without objection, he is held to have waived his right to plead anew to the additional count and to have elected to abide by the plea already filed, and the plaintiff is put to the proof of his case un the new as well as on the original counts.” In Morton v. People, 47 Ill. 468, where a plea had been withdrawn to permit a motion to quash, with the stipulation that, if overruled, the trial should proceed, and the motion to quash was overruled and the trial proceeded without a plea of not guilty being re-entered, it was held that the effect of the stipulation was to reinstate the plea. In People v. Afton, 258 Ill. 292, a felony, where defendant withdrew his plea of not guilty to move to quash, and that was overruled and the plea was not renewed, but there was no such stipulation as in the Morton case, supra, it was held that as defendant did not object, it was to be considered as if the plea had been reinstated by the overruling of the motion to quash. The court there cites with approval from a New York case, holding that it would be sacrificing substance to form not to hold that the trial had proceeded on the understanding that the plea was reinstated when the motion to quash was denied. Here the word “brick” was an unnecessary part of the description of the building and could have been .stricken out without inserting the word “frame.” We do not doubt that the parties proceeded with the understanding that the plea of not guilty previously entered still stood. We hold the rule as to civil pleading applies and that the cause was still at issue when the trial proceeded.

It is argued that the evidence did not justify the verdict of guilty. There was positive proof by two witnesses of the obtaining of whisky and lager beer at defendant’s place. There were more witnesses who testified to the contrary. There was proof that defendant then had in force a special stamp tax, issued by the Federal G-ovemment, authorizing him to conduct the business of retail liquor dealer at that place, for which he had paid $25. The jury and the trial judge saw the witnesses and could judge better than we which were worthy of belief. Defendant made an explanation of why he took out a government license, which involved the confession that the government agents found beer upon his premises. It was for the jury to say whether they believed the explanation. We would not be warranted in disturbing the conclusion which they reached and which the trial judge approved. Judgment affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Lizzie Radigk, Appellee, v. Oscar Singleman, Appellant.
    Gen. No. 6,498. (Not to be reported in full.)
    Abstract of the Decision.
    1. Bastards, § 22

      —what proof required to sustain verdict. Only a preponderance of the evidence is required to justify a verdict of guilty under the Bastardy Act.
    2. Bastards, § 62*—when verdict will not be disturbed. Evidence as to whether defendant was the father df relator’s child, held to be such that a verdict either way approved by the trial judge could not be reversed, in a proceeding under the Bastardy Act.
    Appeal from the County Court of Kankakee county; the Hon. Jay H. Merrill, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Proceeding under the Bastardy Act by the People of the State of Illinois on the relation of Lizzie Radigk, plaintiff, against Oscar Singleman, defendant. Prom a judgment for plaintiff, defendant appeals.
    A. L. Granger and John H. Beckers, for appellant.
    Wayne H., Dyer, for appellee; C. Ml Clay Buntain, of counsel.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Nellie E. Lee, Appellee, v. Central Business Men’s Association, Appellant.
    Gen. No. 6,499. (Not to be reported in full.)
    Appeal from the Circuit Court of Kankakee county; the Hon. Abthtjb W. Deselm, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Action "by Nellie E. Lee, plaintiff, against Central Business Men’s Association, defendant, to recover on a policy of accident insurance, wherein plaintiff was beneficiary, issued to plaintiff’s husband by defendant.” From a judgment for plaintiff for the amount' of the policy, defendant appeals.
    The application was not in the usual form of questions and answers, but in the form of statements bearing consecutive numbers, and after each a place in which to write any qualification of the printed matter by the applicant. This application for accident insurance was solicited by the president of appellant and he wrote all the answers appearing in the original application.
    Statements Nos. 8, 9, 10, 11, 12, 13 and 14 and the words written after the printed portion of the statements in the original application were as follows:
    “8. I have no accident or health insurance in this Association; no accident insurance in any company or association; have made no application for accident insurance upon which I have not been notified of the action thereon, except no ex.
    “9. No application ever made by me for life, health or accident insurance has been declined; no life, health or accident policy ever issued to me has been canceled nor has any renewal thereof been refused by this or any other company or association, except no ex.
    Abstract of the Decision.
    1. Insurance, § 231

      -—When statements in application for accident constitute representations. Statements in an application for accident insurance made a part of the policy, held to be representations and not warranties.
    2. Insurance, § 231*—when statements in application for accident insurance are immaterial. An application for accident insurance containing statements as to the applicant construed as seeking information only as to the five years next preceding its date, and such statements ’ as immaterial where the defense was as to matters happening more than five years preceding its date, in an action to recover on the policy.

      “10. I have never received indemnity from this or any other company or association for accidental injury or illness, except nothing for past five years.
    “11. My habits of life are correct and temperate; I am in sound condition mentally and physically; my hearing or vision is not impaired; I have never had nor am I now' suffering from or subject to fits, disorders of the brain, or any bodily or mental infirmity, except no ex.
    “12. I have not in contemplation any special journey or hazardous undertaking, except no ex.
    “13. My average weekly earnings exceed the weekly indemnity payable under this policy and all other accident or health policies carried by me, except no ex.
    “14. I have not been disabled nor have I received medical or surgical treatment within the past five years, except.................”
    Helmer, Moulton, Whitman & Whitman, for appellant ; Frank A. Helmer and Charles R Holton, of counsel.
    W. B. Hunter, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

3. Insurance, § 243*—what is an immaterial statement in an application for accident. A statement in an application for accident insurance as to the applicant having theretofore any life, health or accident insurance is immaterial, in an action on the policy.


text:
    Matt Kusturin, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 6,501.
    1. Pleading, § 123

      —when special replication required. A special plea concluding with a verification requires a special replication.
    2. Pleading, § 379*—when case treated as if oral issues joined. Where parties go to trial on a special plea concluding with a verification without a written issue joined thereon, it will be treated on review as if issue had been orally joined thereon.
    3. Commerce, § 4*—what constitutes interstate. The removal of old rails spread along the track from which they had been taken and replaced by new rails in repair of a railroad engaged in interstate commerce is a part of interstate commerce whether removed at once on being replaced by the new rails or later.
    4. Master and servant, § 302*—when employee does not assume risk of negligence of fellow-servants. Under the Federal Employers’ Liability Act an employee does not assume the risk of the negligence of his fellow-servants, but if they were negligent and their negligence caused his injury, the employer is liable.
    5. Master and servant, § 697*—when evidence shows negligence of fellow-servants in loading rails on flat car. Evidence held, sufficient to warrant the finding that defendant’s servants employed with plaintiff in loading rails on a flat car were negligent in throwing one end of the rail, which he was assisting at the other end in loading on the car, too quickly, whereby he was injured.
    6. Release, § 18*—when constitutes har to prosecution of action for personal injuries. A release of damages executed by plaintiff and a draft or check cashed by him in consideration thereof constitutes a har to an action hy him to recover damages for injuries sustained by him if such instruments were executed by him with knowledge of their meaning.
    7. Release, § 27

      —when not a bar to prosecution of action under Federal Employers’ Liability Act. Evidence held sufficient to warrant the finding that plaintiff’s action to recover damages under the Federal Employers’ Liability Act was not barred by a release of damages executed by him and a draft or check cashed by him in consideration thereof, where same were in the English language, with which plaintiff was unacquainted, and the release was executed by him through an interpreter speaking the Austrian language, to which plaintiff’s language, Croatian, was similar, with the understanding by plaintiff that he was offered half pay under the State Workmen’s Compensation Act for the time since his injury.
    8. Witnesses, § 218*-—what is improper cross-examination of plaintiff in action for personal injuries. An objection to a question on cross-examination of plaintiff, in an action to recover damages for personal injuries, if he was willing to remove his clothing and have the jury look at his injured part and to have a certain physician in the presence of his own physician examine the part, was properly sustained.
    9. Appeal and ebbob, § 1523*—when giving of improper instruction is harmless error. The giving of an instruction stating the substance of the entire Federal Employers’ Liability Act, including provisions therein not involved in the case, was not reversible error where the jury could not have been 'misled.
    10. Instbuctions, § 53*—when instruction does not assume facts. An instruction did not assume a certain fact where it stated the instruction should not he operative until the jury should first find as to such fact.
    11. Instbuctions, § 63*—when instruction is not erroneous as assuming injury to plaintiff. An instruction held not erroneous as assuming plaintiff was injured where the evidence certainly showed he was injured.
    12. Masteb and sebvant, § 833*—when omission of clause on effect of contributory negligence in instruction in action under Federal Employers’ Liability Act is harmless error. The omission in an instruction, in an action under the Federal Employers’ Liability Act, indicating for what injuries plaintiff could recover if he was found entitled to a verdict, of a statement that if plaintiff was guilty of contributory negligence he could not recover the full amount he had suffered but the loss should be apportioned between himself and his employer, held not reversible error where the instruction was limited to that which the jury might find for him under the evidence, and the instructions of the court and another instruction fully advised the jury as to defendant’s rights in case the injury was partly attributable to plaintiff’s negligence, and where the evidence was insufficient to sustain a special verdict finding plaintiff guilty of contributory negligence.
    13. Master and servant, § 699

      —when evidence does not show contributory negligence in failing to get out of road of rail being loaded on car. Evidence held insufficient to show that plaintiff was guilty of contributory negligence in not getting out of the way of the rail which he with other employees of defendant was loading on a car in time to avoid being struck by it as it rolled back off the car.
    14. Master and servant, § 833*—when instruction on contributory negligence is not ground for reversal. In an action by a railroad employee to recover for personal injuries received while assisting in loading a steel rail on a flat car, an instruction that if the jury believed from the evidence and from the instructions of the court that plaintiff was suddenly placed in a position of peril by the fault of defendant and he could not reasonably have anticipated such danger, then the mere failure of plaintiff to exercise thp care a prudent person would exercise, or the mere failure of plaintiff to exercise the same degree of care as if he had time for deliberation and the full exercise of his judgment and reasoning faculties, would not be contributory negligence on the part of plaintiff, held not misleading and not ground for reversal where the jury could not have found plaintiff was guilty of contributory negligence.
    15. Master and servant, § 435*—what degree of care for Ms safety required of employee placed suddenly in position of peril. An employee when placed in a position of peril is required to exercise such care for his safety as a person of ordinary prudence would exercise under the same circumstances.
    16. Damages, § 128*—when judgment not excessive. A judgment for $2,500 on remittitur, held not excessive, where plaintiff was 36 years old when injured, was a laboring man with no qualifications for employment other than that of common labor, and was so injured by breaking of the arch of his foot that the arch was not restored to normal state and he would be unable for life to do ordinary work requiring much walking or standing, barring him from most kinds of manual labor.
    Appeal from the Circuit Court of Will county; the Hon. Arthur W. Deselm, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.

      0’Donnell, Donovan & Brat, for appellant; Winston, Patne, Strawn & Shaw, of counsel.
    Snapp, Heise & Snapp, for appellee.

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

      See Illinois Notes Digest, Vols. XI t8 Xy. 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 Dibell

delivered the opinion of the court.

On November 3, 1915, appellee, while working as a laborer for appellant and assisting in loading old steel rails upon a flat car, was injured, and brought this suit against appellant to recover damages therefor, and filed a declaration of two counts, in both of which he averred' that both himself and the railway-company were engaged in interstate commerce at the time of the accident, and that they were each governed by the Federal Employers’ Liability Act; and in the first count he charged his injury to the negligence of other servants and employees of appellant, and in the second count he charged his injury to the negligence of the foreman or vice-principal of appellant. Appellant pleaded the general issue and a special plea, which alleged that neither it nor appellee was engaged in interstate commerce at the time of this injury. The special plea concluded with a verification. If this was correct a special replication was required. The parties went to trial without any written issue joined on that plea. We therefore treat it as if issues had been orally joined thereon. Butler v. National Live Stock Ins. Co., 200 Ill. App. 280, and cases therein cited. Appellee had a verdict for $5;821.80. Upon a motion by appellant for a new trial, the court required a remittitur of $3,321.80 and entered a judgment for appellee for $2,500, from which defendant below appeals.

At the trial it was stipulated that appellant was engaged in interstate commerce over its railway at the time of the injury, but it is insisted here that appellee was not then engaged in work which should - be considered interstate commerce. The injury took place a little way south of the Village of Romeo, on the right of way of appellant. Its line there runs substantially north and south, and there were four tracks at that place. The west track was a siding about three-quarters of a mile long for use by southbound trains, and it was called the southbound passing track. Next east of it and about 5 inches higher was the southbound main track. Next east of that was the northbound main track, and the most eastern track was the northbound passing track. At this point, and for some considerable distance north and south therefrom, appellant had been for some weeks engaged in the business of taking up old steel rails in the two main tracks and putting down new steel rails, and for that purpose it had assembled in that vicinity three section crews with their respective foremen. They brought in the new steel rails and distributed them along the line. Then they would take up one old steel rail and put down one new one, and lay the old rail a little ways outside of the main track from which it was taken and then do the same thing with the next old rail in the main track, and so on. After some weeks had been spent in putting down new rails, they then engaged in the business of taking away the old rails. During the noon hour of the day of the injury a flat car which had been in use somewhere else was placed upon this southbound passing track, and after noon the three section crews began to load it with the old steel rails, their foreman being present and participating, and the roadmaster being there and thereabouts. The rails lay between the southbound main and the southbound passing tracks, and the distance between the west rail of the southbound main and the east rail of the southbound passing track was between 8 and 9 feet. The flat car was not operated by steam power but was moved along from time to time by a bar as the rails were scattered just as they had been taken out. Appellant contends that the removal of these old rails was not interstate commerce. In Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146 [3 N. C. C. A. 779], an action under the Federal Employers ’ Liability Act, it was held that tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars, and that all these instrumentalities must be kept in repair, and that the work of keeping such instrumentalities in a proper state of repair while used in interstate commerce is so closely related to such commerce as to be in practice and in legal contemplation a part of it, and that the fact that the railroad is also used in intrastate commerce does not prevent the employment of those who are engaged in its repair or in keeping it in a suitable condition for use from being an employment in interstate commerce. It is therefore clear that those who brought in the new rails and took up the old rails and laid the new were, while doing so, engaged in interstate commerce. We see no reason why the removal of the old rails is not a continuation and completion of this work of repair. If the section crew brought in one or more new rails and took up the old rails and immediately carried them away, no one we think would contend but what the entire process of bringing in the new and taking away the old was repair work in interstate commerce. The fact that in the way appellant did this work a mile or more of new rails were brought in and laid before the old ones were removed from that part of the right of way seems to us to make no difference. In our view the whole process of bringing in the new and taking away the old as well as the taking up of the one and the putting down of the other was all repair work of an interstate commerce road. But even if these rails had been there for a long time, we consider that proper maintenance of the right of way required that they be removed, as much as if, instead of iron rails, it were a growth of weeds or bushes between those two tracks. The southbound passing track was often occupied by freight trains carrying interstate commerce, and taking that track in order to let interstate passenger trains go by southbound on the main track. Though the men in charge of the freight trains while on that southbound track were not likely to wish to walk along on the ground at that particular place some little distance from the end of the switch, yet many contingencies arise in the handling of freight trains when the brakeman do have to pass along a narrow space between tracks, and there was here on the outside, the west side, of the southbound passing track a ditch which prevented the ready passage of trainmen there. It would be necessary, or at least expedient for making that space fit to be traveled by trainmen when necessary, to have these old rails taken away from that place. We are of opinion that at the time appellee was injured he was engaged in interstate commerce within the meaning of the law.

It is denied that appellant was negligent. In passing upon that question it is to be remembered that in this suit, under the Federal Employers’ Liability Act, appellee did not assume the risk of the negligence of his fellow-servants, but if they were negligent and that negligence caused his injury, the appellant is liable therefor. We so held in Mattocks v. Chicago & A. Ry. Co., 187 Ill. App. 529, and in Godby v. Wilson, 203 Ill. App. 612, and it was also so held in Devine v. Chicago, R. I. & P. Ry. Co., 266 Ill. 248. See also Illinois Cent. R. Co. v. Skaggs, 240 U. S. 66, where it was held in a suit under said act: “If the injury was due to the neglect of a coemployee in the performance of his duty, that neglect must be attributed to the employer.” The method of putting on the rails and the circumstances surrounding his injury were as follows: The rails were loaded from the east side of the flat car. There were stakes on the west side to prevent the rails going over, but none on the east. The method pursued was for the sixteen or eighteen men to be spread along the length of the rail. One of the section foremen gave an order “Up,” when each man took hold of the rail with his hands in a certain way, and lifted it up. Then the foreman gave the order “High,” and the rail was then raised as high as the men could reach. Then the foreman called out “Over,” and the men threw the rail upon the car. The Skaggs case, supra, a case under the Federal Employers ’ Liability Act, is authority for the position that where several servants of an employer are cooperating together in doing that which requires concerted action, the negligence of any one of them is the negligence of the master, and such must necessarily be the rule where the fellow-servant doctrine does not apply. Some twenty or twenty-five rails had been placed upon this car, a full load of which would be about ninety rails. Each rail weighed about 750 pounds. This rail was picked up and raised high in the usual way. According to a part of the testimony the order “Over” was given and executed in the usual way. According to some other evidence not fully abstracted, the men at the north end of the rail threw that end onto the car while the foreman was still calling the word “Over,” from which evidence, if believed, the jury could find that the men at the end of the rail were negligent and threw too soon. There was proof that some one in authority called out “Hurry up,” or “Gro ahead,” which orders apparently-had a tendency to distract the men handling the rail from that unity of action important to safety. Other witnesses denied that such orders were given. Whatever occurred, the result was that the north end of the rail went further than the south end, and the rail rolled back and off the car. There were about nine section men near the north end of the rail, and about nine near-the south end of the rail. Appellee was among the men at the south end, about the third man from the south end of the rail. There was a shout given to get out of the way and everybody did get away except appellee. The rail fell upon the instep of appellee’s left foot, and the arch of the foot was broken down. Appellee testified that as he stepped back he caught his heel against a tie of the southbound main. Another witness testified that appellee caught his toe on the tie, and others did not see him catch his foot upon anything. He was removed and taken to a hospital. Appellee had only been at work for the railway company. 2 or 3 weeks. None of the other rails thrown upon that car that afternoon had fallen back, nor was that a usual or customary event, although men experienced in the business had known of rails falling back. It was, no doubt, the duty of the foreman in charge to give his orders in such a way and to cause the work to be done under such instructions as would reasonably tend to produce concert of action, if such concert was essential to safety. The jury could have found from the evidence that the men at the north end threw this rail too quickly and were negligent in so doing, and under the Federal Employers’ Liability Act this negligence was the negligence of the employer. The jury determined that question of fact for appellee, and therefore found that this was not a mere accident for which no one was responsible. There was evidence to warrant that finding.

After appellee had been in the hospital a certain length of time, and when he was about to leave it, he was visited twice by a claim agent of appellant accompanied by a saloon keeper who could speak the Austrian language, of which the Croatian dialect, with which alone appellee was acquainted, was a part or to which it was very similar. Appellant offered in evidence a release of damages which appellee then executed and a draft or check for $70 which he cashed at a bank in the company of this interpreter. If appellee executed these instruments with knowledge of their meaning he could not overcome them in an action at law. Hartley v. Chicago & A. R. Co., 214 Ill. 78; Momence Stone Co. v. Turrell, 205 Ill. 515. Appellee testified that he had worked for a number of years for a mill in Joliet which was under the Illinois Workmen’s Compensation Act, and that he understood that these men were offering the half pay which he would be entitled to under the Illinois Act if he and his employer had been under it, and that he supposed he was receiving half pay for the time which had passed since his injury, and that he did not at all understand that he was releasing his cause of action. The receipt and release which he signed were in the English language, and professed to be under the Workmen’s Compensation Law of the State of Illinois, as well as under the Federal Employers’ Liability Act. The interpreter testified that he told appellee that this paper was payment to him under the Workmen’s Compensation Act, and again, that he, meaning appellee, was offered so much money for the 14 weeks. The jury were warranted in finding that appellee, who was a Croatian and spoke and understood very little English, and could not read English, supposed he was signing a receipt for $70 paid to him as half payment for the time which had elapsed since his injury under the provisions of the Workmen’s Compensation Act of the State of Illinois. The jury were therefore warranted in finding that this action was not barred by that release.

On cross-examination of. appellee, appellant’s counsel asked him if he was willing to have his shoe and stocking removed and have the jury look at his foot, and if he was willing to have a certain physician examine his foot in the presence of his own physician. Appellee’s counsel objected to these questions and the objection was sustained. In City of Chicago v. McNally, 227 Ill. 14, the trial court sustained an objection to a similar question and it was held that the ruling was correct. It is true that the language of the court in that case was not very positive, hut it seems to us that it being as there stated the s'ettled law of the State that a plaintiff in such an action cannot be required to submit to a physical examination as to his or her injuries, it is but an evasion of that rule to permit- such a plaintiff to be required to state to the jury whether or not he is willing to submit to such an examination. To permit such a question to be put in the presence of the jury is practically compelling him to submit to the examination because of the unfavorable effect likely to be produced upon the minds of the jury if he refuses. In Cole v. City of East St. Louis, 158 Ill. App. 494, the Appellate Court of the Fourth District took the view that the objection by counsel for plaintiff to such a question in the presence of the jury amounted to a refusal to submit to the examination. Appellant had the benefit before the jury of the fact that appellee’s counsel had refused, and we think that was sufficient. We find no reversible, error in other rulings of the court upon evidence of which complaint is made. "

It is claimed that the court erred in giving certain instructions for appellee. The third instruction given at appellee’s request stated the substance of the entire Federal Employers ’ Liability Act, including provisions therein not involved in this case. We think the portion objected to might well have been omitted, as said by us in a former case, but still we do not think the jury could have been misled to believe that appellee could recover here "for any defect in appellant’s track or roadbed. While appellee did claim that his heel was caught by a tie and thereby he was prevented from getting away, it was nowhere claimed that there was anything defective or improper in that tie or in its existence at that place. We think the jury were not misled by that instruction. It is argued that the fifth instruction assumed that the men of the section crews failed to act in concert at the time in question and that plaintiff sustained injuries in consequence thereof. The instruction is too long to set out here in full, but the part complained of was preceded by the words “if you believe from the instructions of the court and the evidence in the case,” and then followed language that that instruction should not be effective unless the jury had first found from the evidence that ordinary care required the men working on the rail to endeavor to act in concert, and that in the exercise of ordinary care they could have done so, and that they failed to do so, so that the language complained of did not become operative until the jury had first found from the evidence under the instructions that the section crews of appellant were lifting the rail which injured appellee and were throwing it on the car, and that ordinary care required them to endeavor to act in concert, and that they could have done so in the exercise of ordinary care and that they did not do so. The only thing possibly assumed without being previously submitted for determination by the jury was that appellee sustained injuries by the falling of that rail, and it is certain from the evidence that he did so sustain injuries. The sixth instruction properly stated the rule of law governing the supposed release. The seventh instruction was in the main the ordinary stock instruction indicating for what injuries appellee could recover if he was found entitled to a verdict. It does not tell the jury that if appellee was guilty of contributory negligence he could not recover the full amount he had suffered, but the loss should be apportioned between himself and his employer under the act in question. It is argued that it was erroneous for that reason. Such a qualification of this instruction might very properly have been made but, nevertheless, we think the omission of that qualification was not reversible error in this case for two reasons: The instruction is limited to that which the jury may find for him “under the evidence and the instructions of the court in this case.” This practically writes into this instruction all the other instructions, and the twelfth instruction given for appellant states its rights in case this injury was partly attributable to the negligence of appellee in a very full and satisfactory manner, and it is impossible that the jury could have been misled by instruction number 7. Again, upon a careful examination of all the evidence, we are of opinion that if the jury had returned a special verdict that appellee was guilty of contributory negligence, that verdict could not be sustained. The time which elapsed from the instant, when appellee discovered that the rail was going to roll off the car and the time when it struck his foot was exceedingly short. The fact that the other men got out of the way does not prove that appellee was negligent in not getting out of the way. The jury must necessarily have found that something impeded him. If his foot was not caught by a tie which slightly projected from the bank he may have been in fact stopped by the slope of the bank where he was. But if nobody knows how the heel was caught, there is no indication of any conduct on his part indicating negligence; and inasmuch as we conclude that the jury could not have found him guilty of contributory negligence, we think that this instruction if considered without regard to the other instruction, No. 12, still was not reversible error. The fact that appellee did not get out of the way is the only thing which in argument here is called his negligence. But if the entire eighteen men were negligent in so throwing that rail that it did not remain upon the car, or if the men at the south end were negligent in not throwing more quickly or more rapidly or forcibly than they did, still appellee’s share in that negligence must have been very slight. He was a new man, unacquainted with the business, and had two or three men south of him and several men north of him, and the amount which the jury could have awarded as his share of the total negligence must have been slight, and very much more than covered by the reduction which the court -required of $3,321.80. Instruction number 7 should also have directed the jury to credit appellant with the $70 which it paid appellee, but that omission also is much more than covered by the remittitur required. Instruction number 11 given for ap-. pellee is as follows:

“The jury are instructed that if you believe from the evidence, and under the instructions of the court, that the plaintiff was suddenly placed in a position of peril by the fault of the defendant, and that he could not reasonably have anticipated such danger, then you are instructed as a matter of law, that the mere failure of the plaintiff to exercise the care a prudent person would have exercised, or the mere failure of the plaintiff to exercise the same degree of care as if he had time for deliberation and the full exercise of his judgment and reasoning faculties, will not be contributory negligence on the part of the plaintiff.”

This instruction was awkwardly and defectively worded. Undoubtedly the appellee, when placed in a position of peril, was required to exercise such care for his safety as a person of ordinary prudence would have used under those circumstances. Peoria, D. & E. Ry. Co. v. Rice, 144 Ill. 227. Yet we think the latter part of the instruction sufficient to prevent the jury from being misled by the defective language in the" middle of it; and moreover, as we are of opinion that the jury could not reasonably find that appellee was guilty of contributory negligence under the circumstances of the case, the instruction could do no harm.

■ It is argued that the judgment is excessive. The pain and suffering endured by appellee is to be taken into consideration in determining that question. Appellee was about 36y2 years old when injured. He was a laboring man, and apparently had no qualifications that would fit him for any other employment than that of a common laborer. We think it clear from the evidence that although a good union of the bones of his foot was obtained, yet the arch thereof was not restored to its normal state, and that he was unable and will be unable for life to do any ordinary work which requires much walking or standing upon his feet, and this bars him from most kinds of manual labor. We conclude from the evidence that we would not be warranted in holding that the judgment is excessive. The judgment is affirmed.

Affirmed.


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    Alice Stevenson, Appellee, v. Knights of Pythias, etc., Appellant.
    Gen. No. 6,507. (Not to be reported in full.)
    Appeal from the County Court of Will county; the Hon. George J. Cowing, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Action by Alice Stevenson, plaintiff, against Knights of Pythias of North America, South America, Europe, Asia, Africa and Australia, defendant, to recover a death benefit because of the death of her son, Joseph Stevenson. From a judgment for plaintiff, defendant appeals.
    Robert A. J. Shaw, for appellant; S. A. T. Watkins, of counsel.
    Cowing & King, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and ebbob, § 894 —ivhat is duty of appellee to make additional abstract complete. An appellee has a right to file an additional abstract to present more fully any part of the record desired to have known to the court, but is under no duty to make it complete.

2. Appeal and ebbob, § 864*—what is duty of appellant as to filing abstract. Rule 16 of the Appellate Court rules requires an appellant to file an abstract sufficient to present the case.

3. Appeal and ebbob, § 864*—what is duty of court of review as to searching record. Á'court of review may search the record to find reasons for affirming but is not required to do so in order to find reasons for reversing, where an abstract is insufficient.

4. Appeal and ebbob, § 1752*—when judgment will be affirmed. Abstract and additional abstract held to be insufficient to show the judgment stated in brief appealed from was erroneous, so as to warrant reversal of the judgment.


text:
    Cat Tail Drainage District, Appellant, v. Johnson Creek Levee & Drainage District, Appellee.
    Gen. No. 6,512. (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence—when expert knowledge is unnecessary. The witnesses were qualified to testify to benefits received by plaintiff from defendant’s work without being shown to have expert knowledge, in an action by one drainage district against another under sections 8 and 9 of the Act of 1913 [Callaghan’s 1916 St. Supp. If 4461(8), (9)] to recover the proportional amount of the cost of the construction of an outlet.

      Appeal from the County Court of Whiteside county; the Hon. William A. Blodgett, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Action by Cat Tail Drainage District, plaintiff, against Johnson Creek Levee & Drainage District, defendant, under sections 8 and 9 of the Act of 1913 [Callaghan’s 1916 St. Supp. [[ 4461(8), (9)], to recover the proportional amount of the cost of the construction of an outlet. From a judgment for defendant for $500, on plea of set-off and recoupment, plaintiff appeals.
    An appeal to the Supreme Court was dismissed. See 275 Ill. 191. The pleadings are stated in that opinion. Plea of nonassumpsit was thereafter filed in the County Court, with notice of matter of set-off and recoupment.
    M. C. Rogers and Charles C. McMahon, for appellant.
    John A. Riordan and Henry C. Ward, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

2. Appeal and eerob, § 1498 —when improper exclusion of evidence is harmless error. In an action by one drainage district against another to recover the proportional amount of the cost of construction of an outlet for both districts, the exclusion of certain maps and profile held not reversible error where, other evidence established the facts to be shown by such maps and profile.

3. Deainage, § 51*—when benefits to drainage district before its organization are properly shown in action against adjoining district. Benefits accruing to the lands of a drainage district before it was organized were properly shown under section 9 of the Act of 1913 [Callaghan’s 1916 St. Supp. If 4461(8), (9)], in an action under that section by such district against an adjoining organized district, to recover the proportional amount of the cost of construction of an outlet for both districts.

4. Deainage, § 51*—what damages may be recouped by defendant in action by one drainage district against another to recover proportion of cost of construction of outlet. Evidence of damage to the upper drainage district by work done by the lower district, in an action by one drainage district against another, under sections 8 and 9 of the Act of 1913 [Callaghan’s 1916 St. Supp. If 4461(8), (9)], to recover the proportional amount of the cost of construction of an outlet, held properly admitted as set-off or recoupment.

5. Deainage, § 51*—when evidence shows benefit to defendant drainage district from improvements by plaintiff district. Evidence held sufficient to warrant the finding that the drainage improvements made by plaintiff had benefited and not damaged defendant, in an action by one drainage district against another, under sections 8 and 9 of the Act of 1913 [Callaghan’s 1916 St. Supp. If 4461(8), (9)], to recover the proportion of the cost of construction of an outlet for the use of both districts.


text:
    Thomas B. Allen, Appellee, v. American Milling Company, Appellant.
    Gen. No. 6,523.
    1. Pleading, § 379

      —when case treated as if oral issue joined. Where parties voluntarily go to trial without the completion of written issues, the case is treated as if an oral issue had been raised.
    2. Pleading, § 132*—when replication admits averments of plea. Where a special plea, in an action by an employee to recover damages against his employer for injuries sustained in the employment, set up that both parties were under the Workmen’s Compensation Act of 1911, whereby no such action would lie, and a special replication set up that plaintiff’s employment was casual and otherwise than for the employer’s trade or business, whereby plaintiff under section 21 of the Act (J. & A. jf 5470) was not an employee within the meaning of the act, field that the replication admitted the averments of the plea.
    3. Workmen’s Compensation Act, § 14*—what is not casual employment. Where plaintiff was injured while employed by defendant and engaged in erecting and installing machinery in an addition to defendant’s plant, held that his employment was not “casual” within the meaning of the Workmen’s Compensation Act of 1911.
    4. Workmen’s Compensation Act, § 1*—what constitutes trade or business of employer. The erecting and equipping an addition to defendant’s plant was within defendant’s trade and business within section 21 of the Workmen’s Compensation Act (J. & A. If 5470), although defendant’s main business was the manufacture of certain products.
    5. Workmen’s Compensation Act, § 2*—what constitutes acceptance by employee of. Payment by defendant and receipt by plaintiff of a certain sum each week stated in the receipt as given and accepted as compensation under the Workmen’s Compensation Act constituted an acceptance of the provisions of the act so as to bar plaintiff, under section 3 thereof, Act of 1911 (J. & A. jf 5451), from suing for damages on account of the injury for which such compensation was paid. •
    6. Workmen’s Compensation Act, § 5*-—when action at law may not be maintained. Where the parties under -the Workmen’s Compensation Act disagreed as to the employee’s ability to do certain work offered Mm by the employer after he had been injured while in such employment and after he had been paid compensation under the act in full to a certain date, the fact of such disagreement did not restore to the employee his right to bring a common-law action to recover damages because of such injuries, but his remedy was under section 10 of the Act of 1911 (J. & A. 5459), .providing that such disputes should be arbitrated.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed February 12, 1918.
    Frank T. Miller and John M. Elliott, for appellant; Stevens, Miller & Elliott and O. P. Westervelt, of counsel.
    Winslow Evans, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

On December 27, 1912, Thomas B. Allen was injured while in the employ of the American Milling Company as a carpenter and millwright in doing certain parts of the work upon an addition to its plant near Peoria. On February 26, 1914, he brought this action on the case against his employer to recover damages for said injury, which in his declaration he attributed to the negligence of his employer. The company filed a plea of the general issue and an amended special plea, to which latter plea plaintiff filed a special replication. There was a jury trial and a verdict for plaintiff. A motion by defendant for a new trial was denied and plaintiff had judgment, from which defendant below appeals.

At the time of the injury the Workmen’s Compensation Law of 1911 was in force. Section 3 of said Act (J. & A. ¶ 5451) begins as follows: “No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who has accepted the provisions of this act.” The amended special plea was to the legal effect that both appellant and appellee were under the provisions of said act, and also that appellee had accepted the provisions of said act, and that therefore, under section 3, appellee could not maintain this action on the case for damages, but was confined to his remedies under said act. The plea at great length set out the facts required by said statute to bring both the parties under the provisions of said act. It also alleged that appellant paid appellee, and appellee accepted, weekly compensation under said act for several months, the number of months being stated under a videlicet, and therefore permitting proof of a different number of months than that stated in the plea. Rose v. Mutual Life Ins. Co., 144 Ill. App. 434. The substance of the special replication was that plaintiff ought not to be precluded from having and maintaining his action by reason of anything in the amended special plea contained, because under section 21 of said Act (J. & A. ¶ 5470), persons whose employment is of a casual nature and who are employed otherwise than for the purpose of the employer’s trade or business are not employees within the meaning of said act; and he alleged that at the time of his injury he was casually employed by appellant and was employed otherwise than for the purposed of the employer’s trade or business. This replication ended with a verification and properly so, as it set out new matter. To complete the issues' in writing a rejoinder should have been filed. The record shows that appellant obtained leave of court to join issues upon the replication after a demurrer thereto had been overruled, and the record of the court on the day of the trial recited that the issues had been joined. The case has been argued as if a rejoinder, denying the averments of the replication, had been filed, concluding to the country. One of the briefs alleges there is such a replication, but we have been unable to find it in the record. In Witteman Co. v. Goeke, 200 Ill. App. 108, and in Butler v. National Live Stock Ins. Co., 200 Ill. App. 280, upon a consideration of numerous authorities there cited, we held that where parties voluntarily go to trial without the completion of written issues, the case is treated.as if an oral issue had been joined. Under numerous authorities, the special replication admitted the averments of the amended special plea, and set up that appellee’s employment was casual and not for the purpose of the employer’s trade or business, as the two matters solely relied upon to defeat the plea.

Appellant was erecting and installing its machinery in an addition to its plant. Plaintiff was employed by appellant some time in October, 1912, and was still engaged in that employment when injured on December 27, 1912. The meaning of the word “casual” in a similar connection in the Workmen’s Compensation Act of 1913 was considered in Aurora Brewing Co. v. Industrial Board of Illinois, 277 Ill. 142 [15 N. C. C. A. 802], and many cases are there considered and discussed upon that subject. It would serve no useful purpose for us to review the eases there discussed or other cases outside of Illinois. We think it sufficient to say that in our opinion appellee’s employment with appellant was not “casual” within the meaning of that decision, and utherefore also was not “casual” within the meaning of that term as used in section 21 of the Act of 1911 (J. & A. ¶ 5470). We also are of the opinion that the erection and equipment of an addition to appellant’s plant was within its trade and business. True, appellant’s main business was the manufacture of certain products, but we conceive that erecting its plant or an addition to its plant is necessarily a part of the business. Moreover, appellant immediately began making payments to appellee of $12 per week. Appellee testified that these payments began one week after the injury, which would be the 3rd or 4th day of January, 1913. Eeceipts were introduced in evidence, signed by him and acknowledging these payments as made and received from February 2, 1913, to July 11, 1913, which receipts recited that they were for compensation under the Workmen’s Compensation Act, and appellee testified that he received payments regularly up to the date of the first receipt. Therefore he received the payments regularly for more than six months. The course of the pleading also admitted the facts. That part of section 3 of the Act of 1911 (J. & A. ¶ 5451) above quoted denied all common-law or statutory right to recover damages for injury “to any employee who has accepted the provisions of this act.” Under the rule laid down in construing similar provisions in Simpson Construction Co. v. Industrial Board of Illinois, 275 Ill. 366, on p. 370, the payment and receipt of this compensation was an acceptance of the provisions of the act and barred appellee from bringing this suit and, in our judgment, constitutes a complete defense to this action.

After payments had been made and received in full to July 11, 1913, a difference arose between the parties. Appellant offered appellee employment, which it contended he was able to perform. He refused to accept it because, as he claimed, he was unable to do that work. Section 10 of the Act of 1911 (J. & A. ¶ 5459) provides how that dispute could be settled by arbitration. We are of the opinion that the fact that the parties then disagreed as to the future course to be pursued did not restore appellee to his right to bring a common-law action, but that his remedy was under section 10 of the Act. Suppose payments had been regularly made and accepted until they got to the last week for which he could have compensation under the act, and the employer had then refused to make the last payment. We think it obvious that appellee could not then have maintained a suit against appellant at common law or under other statutes. This conclusion defeats this action and makes it unnecessary to consider appellant’s contention that ii was not guilty of any negligence alleged in the declaration, and therein charged to have caused the injury. The judgment is therefore reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment. We find from the evidence that, at the time of the injury to appellee, both appellant and appellee were under the provisions of the Workmen’s Compensation Act of 1911, and also that each of the parties had accepted the provisions of said act and were therefore bound thereby. Therefore this action cannot be maintained.

Niehaus, J., took no part. .


text:
    Mary J. Russell Smith, Appellant, v. City of Peoria, Appellee.
    Gen. No. 6,526. (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehahs, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Action by Mary J. Bussell Smith, plaintiff, against City of Peoria, defendant, to recover the cost, originally paid by plaintiff as an abutting property owner, of that portion of the paving of the street taken and occupied, by a street railway company, under an ordinance of the defendant providing that a company taking and occupying for street railroad purposes a portion of a paved street, the paving of which had been paid for by abutting property owners, should pay to defendant a ratable proportion of the cost of the street as the part so taken and occupied compared to the entire width of the street, for the use of such property owners. From a judgment for defendant, on demurrer to the declaration, plaintiff appeals.
    Abstract of the Decision.
    1. Municipal corporations, § 97

      —what is right of city as to revolting ordinance. A city council has no power to bind the city by an ordinance providing that any street railway franchise thereafter granted should be subject to the grantee paying to the city, for the use of contiguous property owners who had paid a special assessment for the paving of the street occupied by such grantee, a ratable proportion of the cost of the paving for the part of the street so occupied by the grantee, so as to deprive succeeding city councils of the power to repeal such ordinance, either expressly or by implication, or to depart from its terms.

      Taxes for the pavement of the street in question were paid by plaintiff in 1896. At the time the ordinance providing for such paving was passed there was in force the ordinance in question, upon which this action was based, providing further that it should be a part of every franchise right thereafter granted by the city council to any person or corporation. In 1914 the council granted a franchise for the construction of an additional railway line on the street, and did not require a compliance with this ordinance, but permitted the grantee to take a part of the street upon paying into the city treasury a sum computed at 72% cents a square yard for such part, to be distributed to such property owners as were rightful claimants therefor. The declaration also alleged that this sum required to be paid did not represent 25 per cent, of the cost of the improvement.
    I. 0. Pinkney, for appellant; George K. Beasley, of counsel.
    B. H. Badley, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

2. Stbeet bailboads, § 35 —what construction given ordinance relating to payment by street railway of cost of paving street to city for benefit of property owners. Where a declaration alleged that a city council had passed a certain ordinance providing that the grantee of any street railway franchise thereafter granted should pay to the city for the use of the property owners who had paid assessments for the paving of' the street occupied by the grantee the cost of the paving for the part of the street so occupied, and that 18 years after plaintiff had paid such assessment as such property owner a franchise was granted by the defendant city without such payment by the grantee to the city of the full cost, but only 25 per cent, thereof of that part of the paving occupied by the grantee, held, on demurrer, that to so construe such ordinance as to apply after such lapse of time from the laying of the pavement would be so unreasonable as to make the ordinance void, as the court judicially knows such pavements,' brick, do not last forever but wear out.

Niehaus, J., took no part.