author: Mr. Presiding Justice Thompson

text:
    Mason & Trent Brothers, Appellees, v. William Neal, Appellant.
    1. Appeal and error, § 801

      —when hiil of exceptions unnecessary. A bill of exceptions is unnecessary on questions raised by demurrer to a plea or to a declaration.
    2. Judgment, § 102*—when order of default improper. An order of a defendant's default is not proper where he is present and contesting. the case.
    3. Judgment, § 102*—when of nil dicit proper. Where a defendant refuses, after a demurrer to his plea is sustained, to plead further, the proper judgment is nil dicit.

    4. Appeal and ebbor—when order of defendant’s default harmless error. An order of a defendant’s defáult after his refusal to plead further, upon sustaining of a demurrer to his plea, held to be erroneous, but an informality and harmless error.
    5. Appeal and ebbor, § 670*—what is effect of filing appeal bond. After the filing of an appeal bond, a trial court has no right to make any further orders in the case without first setting aside the order for appeal and approval of the bond.
    6. Pleading, § 459*—when demurrer to declaration waived. Piling of a plea after overruling a demurrer to the declaration," held to waive the demurrer.
    7. Pleading, § 459*—when demurrer waived. A demurrer is waived where the party does not abide by his demurrer but pleads over, unless substantial defects in the declaration exist such as to render it insufficient to sustain a judgment after verdict.
    8. Pleading, § 204

      —when demurrer to plea not carried back to declaration. A demurrer to a plea will not ordinarily be carried back to the declaration where a demurrer to the declaration has been overruled.
    9. Pleading, § 204*—when demurrer to plea carried back to declaration. A demurrer to a plea will be carried back to the declaration where the declaration does not set out a cause of action on which a judgment can be sustained.
    10. Pleading—when duty of court to correct erroneous rulings. It is the duty of a trial court at any time before trial, when it becomes satisfied an erroneous ruling has been made with respect to the sufficiency of a pleading, promptly to set aside the order and correct the error.
    11. Bonds—when interest of obligees is joint. Where a bond is made to two or more persons jointly, the legal interest of such obligees is joint notwithstanding the defeasance clause provides for payment of money to one or more of the obligees jointly and severally.
    12. Bonds, § 28*—when all obligees must join in action on bond. All obligees must join in an action on a bond made to two or more persons jointly, notwithstanding the defeasance clause provides for payment to one or more of such obligees jointly and severally.
    13. Bonds, § 32*—when declaration in action on bond insufficient. In an action upon a bond given to secure liens, a statement in the declaration that “plaintiffs had a lien,” held insufficient to state a cause of action, as it is merely a conclusion, and facts should be stated from which it can be seen that plaintiffs had a lien.
    14. Bonds, § 32*—what should be averred in action by one lien-holder on bond given to secure liens. In an action by one lien-holder on a bond given to secure liens, the declaration should aver the interest of other lienholders, so it can be determined what, if any, plaintiff is entitled to recover.
    15. Appeal and errob, § 1170*—when propositions not involved not considered. The Appellate Court will not anticipate in its opinions propositions not at the time involved in the case.
    Appeal from the County Court of Vermilion county; the Hon. Lawrence T. Allen, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 16, 1917.

      S. F. Schecter, for appellant.
    Swallow & Bookwalter, for appellees.

      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. Presiding Justice Thompson

delivered the opinion of the court.

Mason and Trent Brothers began a suit in the County Court of Vermilion county against William Neal, and on October 22, 1914, filed a declaration in debt, which avers that on July 28, 1913, one “John N. Fair-child entered into a contract with the school directors of School District No. 132 of the County of Vermilion, and State of Illinois, for the construction of a school building in said school district, which said contract is in words and figures as shown by exhibit A, hereto attached, and made a part of this declaration.” It also avers that on October 13, 1913, John N. Fairchild and the defendant William Neal then and there by their writing obligatory acknowledged themselves to be bound to said school directors, by the name and description of “the Board of Education, as well as to all persons who may become entitled to liens under said contract, heretofore mentioned, in the sum of $13,195.00, which said bond is in words and figures as shown by exhibit B, hereto attached”; that said writing obligatory was and is subject to a condition of defeasance thereunder written that said Fairchild would complete said building free from mechanics’ liens and that said bond would protect all persons who might become entitled to liens under said contract, which said bond was conditioned upon the carrying out of said contract by said Fairchild.

“Plaintiffs further aver that said Fairchild did not ' deliver said building free of mechanics’ liens, and for assigning a breach of the condition of said writing obligatory the plaintiffs say they did on to-wit: file claims for a lien with the said school directors of School District No. 132 under section 23 of an Act

entitled,” etc., and “the plaintiffs have a claim for a lien in the amount of, to-wit: $700, which the said board of directors has not the money to pay.”

“Plaintiffs further aver that the said William Neal has not paid to said plaintiffs the said sum of, to-wit: $700, in accordance with the terms of said writing obligatory,” but has neglected, etc., whereby an action has accrued to plaintiffs to demand said sum of $13,195, yet the defendant though often requested has not paid said sum to the damage of plaintiffs of $700.

Exhibit A is a contract between Fairchild “and Board of Education, Oakwood, Illinois, owners, parties of the second part”; to erect a school building for “the Board of Education of the School District No. 132 in the Town of Oakwood, County of Vermilion, State of Illinois.” It is signed by Fairchild and C. C. Andrews, Clk., S. C. Sailor and Delbert Meade.

Exhibit B is a bond made by Fairchild and Neal of the City of Danville, County of Vermilion, State of Illinois, “unto Board of Education of said County and State as well as to all persons who may become entitled to liens under the contract hereinbefore mentioned.” Exhibit B is not made a part of the declaration.

The defendant, on January 4, 1915, during the November term, filed a general and special demurrer to the declaration, which was overruled on February 26, 1915, at the February term of said court. On April 15, 1915, the defendant filed seven pleas. The plaintiffs filed a general and special demurrer to all the pleas. On June 11, 1915, at the June term, during the hearing on the demurrer to the pleas, the defendant-entered a motion to carry the demurrer back to the declaration. The court on that day sustained the demurrer to the second, third, fourth, fifth and sixth pleas,, and on July 13th also sustained the demurrer to the first plea, and overruled it as to the seventh. Thereupon the defendant withdrew the seventh plea. The court then overruled the motion of defendant to carry the demurrer hack to the declaration. The defendant on July 13, 1915, refusing to plead further, was defaulted, evidence was heard and judgment entered in debt on the bond, and, plaintiffs’ damages assessed at $700. The defendant prayed and perfected this appeal. The appeal bond was filed and approved August 4, 1915.

. Later, on September 18,1915, during the June term, the record of February 26th was, on motion of the defendant, amended to show that the defendant elected to stand by his demurrer to the declaration, and the record of June 11th was also amended by adding to the order then entered, “and the motion of defendant to carry demurrer back to the declaration is overruled to which ruling the defendant excepts and elects to stand by his demurrer,” and the record of July 13th was also amended by adding the words the defendant “elects to stand by his demurrer.”

Among the errors assigned by defendant are: The court erred (1) in overruling defendant’s demurrer to the declaration; (2) in sustaining plaintiff’s demurrer to his first to sixth pleas; (3) in refusing to carry the plaintiffs’ demurrer to the pleas back to the declaration; (4) in ordering the defendant defaulted; and (5) in ordering a bill of exceptions.

On questions raised by demurrers to the pleas and to the declaration a bill of exceptions was unnecessary (Alley v. McCabe, 147 Ill. 410; Esmond v. Esmond, 142 Ill. App. 233), but defendant undoubtedly asked for one, or the court would not have given him time within which to file one. Whether a bill of exceptions is necessary to save the question of the propriety of the ruling on the motion of appellant to carry the demurrer to the pleas back to the declaration has not been argued, and we express no opinion concerning it.

The order of default was not proper when the defendant was present contesting the case. When the defendant refused to plead further, the judgment should have been nil dicit, but the error was simply an informality and harmless.

After the judgment was entered herein and the defendant had prayed an appeal, and had filed his appeal bond and it had been approved, the court on motion of defendant amended the record. The appeal was pending as soon as the bond had been filed and the trial court had no further jurisdiction over the case. It had no right to make any further orders in the case without first setting aside the order for the appeal together with the approval of the bond. Finkelstein v. Lyons, 250 Ill. 27; Merrifield v. Western Cottage Piano & Organ Co., 238 Ill. 526. The plaintiffs, however, have not raised' any question of the propriety of this appeal but have argued the case on its merits.

When the defendant filed pleas, after his demurrer had been overruled, he waived his demurrer. A party waives his demurrer and may not assign error upon the action of the court in overruling it, when he does not abide by the demurrer but pleads over, unless there are such substantial defects in the declaration as will render it insufficient to sustain a judgment after verdict. Chicago & A. R. Co. v. Clausen, 173 Ill. 100; Heimberger v. Elliot Frog & Switch Co., 245 Ill. 448; Phenix Ins. Co. v. Belt Ry. Co. of Chicago, 182 Ill. 33; People ex rel. Coggeshall v. Walker Opera House Co., 249 Ill. 106.

It is also the rule that ordinarily a demurrer to a plea will not be carried back to the declaration, where a demurrer to the declaration has been overruled, because by pleading over the party waived his demurrer. (Fish v. Farwell, 160 Ill. 236.) The demurrer may be carried back, however, when the declaration does not set out a cause of action on which a judgment can be sustained. People v. City of Spring Valley, 129 Ill. 169. The court has the power, and it is the duty of the trial court at any time before trial, when it becomes satisfied that an erroneous ruling has been made with respect to the sufficiency of a pleading to promptly set aside the order and correct the error. Fort Dearborn Lodge v. Klein, 115 Ill. 177; Dowie v. Priddle, 216 Ill. 553. By the record, however, as finally amended, the defendant abides by his original demurrer to the declaration.

The declaration avers that Fairchild and defendant acknowledged themselves to be bound to said school directors by the name, style and description of the Board of Education as well as to all persons who may become entitled to liens under said contract. The contract which is a part' of the declaration is between Fairchild and the “Board of Education, Oakwood, Illinois, owners.” The bond recites: “That we, J. N. Fairchild and William Neal, of the City of Danville, County of Vermilion, State of Illinois, are held and firmly bound unto Board of Education of said County and State as well as to all persons who may become entitled to liens.” The bond sued upon, and which is attached to the declaration, read by itself, names as obligees the “Board of Education of said County and State as well as to all other persons who may become entitled to liens under the contract hereinbefore mentioned.” Without expressing any opiiiion as to what Board of Education or- body politic is the obligee, it ‘ is clear that some Board of Education, or school district, is an obligee in the bond, and such obligee is a necessary party.

Where a bond is made to two or more persons jointly, the legal interest of such obligees is joint notwithstanding the defeasance clause provides for payment of money to one or more of the obligees jointly and severally, and, if suit is brought on the bond, all the obligees must join in the action. International Hotel Co. v. Flynn, 238 Ill. 636; St. Louis, A. & R. I. R. Co. v. Coultas, 33 Ill. 188; Phillips v. Singer Mfg. Co., 88 m. 305.

The declaration does not aver that plaintiffs furnished any material or labor under any contract with the original contractor, or with the knowledge of the owner, whereby they became entitled to any lien, or that they served any notice on the officials of any school district before payment was made to the contractor. Not a single fact is stated from which it can be seen that plaintiffs did anything or furnished anything that was used in carrying out the contract to secure the completion of which the bond sued on was given. The statement that “plaintiffs had a lien” is merely the statement of a conclusion. The facts should be stated from which it can be seen that plaintiffs have a lien.

If there are lien holders in addition to plaintiffs who are entitled to recover on the bond sued upon, the declaration should aver the interest of the other lien holders so that it can be determined what, if any, plaintiffs are entitled to recover. The obligees are not entitled to recover altogether more than the penalty of the bond. Plaintiffs also inquire if there are several lien holders what kind of a judgment is to be entered. This court has answered all the questions presented for review and will not anticipate propositions not at present involved.

The court erred in overruling the demurrer. The judgment is reversed and the cause remanded with directions to the trial court to sustain the demurrer to the declaration.

Reversed and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    James E. Johnson, Conservator, Appellant, v. W. O. Taff, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Equity, § 482
      —when complainant not entitled to decree. Although a complainant may make out by proof a case which entitles him to relief, yet he can have no decree unless the allegallons of the bill-are adapted to the case proved.
    2. Parent and child, § 65*—presumption as to fraud or undue influence. There is no presumption of law that a conveyance from a parent to a child is the product of fraud or undue influence.
    3. Parent and child, § 41*—when conveyance by parent to child set aside. There must he proof of fraud and undue influence in fact to set aside a conveyance by a parent to a child.
    4. Cancellation of instruments, § 5*—when evidence sufficient to show competency of ward to transact business. Evidence held
      to sustain the finding that complainant’s ward was competent to transact business at the time she executed a certain bill of sale and a certain lease to the defendant, in a suit by a conservator to set aside such bill' of sale and lease on the ground of his ward’s incompetency at the time of execution of such bill of sale and lease.

      Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Suit by James E. Johnson, conservator of Mary A. Taff, complainant, against W. 0. Taff, defendant, to set aside a certain bill of sale and a certain lease executed by Mary A. Taff to the defendant. From a decree dismissing the bill for want of equity, complainant appeals.
    Stevens & Herndon, for appellant.
    Davis McKeown, for appellee.

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

5. Cancellation of instruments, § 5 —when evidence sufficient to show execution of instruments under standingly and of free will by loará. The preponderance of the evidence held to show that complainant’s ward executed certain instruments understandingly and of her own free will, in a suit to set aside such instruments on the ground of fraud and undue influence in their execution.


text:
    Mattie Hazel Moore Shaffer, by H. J. Shaffer, Plaintiff in Error, v. Robert Rose and P. J. Carey, Defendants in Error. Mattie Hazel Moore Shaffer, by H. J. Shaffer, Plaintiff in Error, v. Charles Nogle, Defendant in Error. Mattie Hazel Moore Shaffer, by H. J. Shaffer, Plaintiff in Error, v. Steve Tucker and Samuel Aiman, Defendants in Error.
    (Not to be reported in full.)
    Error to the County Court of Champaign county; the Hon. Rot C. Freeman, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Mattie Hazel Moore Shaffer, by her next friend, H. J. Shaffer, plaintiff, against Robert Rose and P. J. Carey, defendants. Also, action by same plaintiff against Charles Nogle, defendant. Also, action by same plaintiff against Steve Tucker and Samuel Aiman, defendants. These actions were commenced before a justice of the peace and on appeal to the County Court were consolidated and tried together. From a judgment for the defendants in each case, on a directed verdict, the plaintiff brings error in each case, and by agreement the three cases were heard ón the same record.
    Abstract of the Decision.
    Action, § 71*—when action for trespass may not be maintained. In an action to recover damages for trespass, where on trial the acts of trespass complained of were shown by the plaintiff’s evidence to have occurred subsequent to the commencement of the action, held that a verdict for the defendants was properly directed.
    W. A. Perkins, for plaintiff in error.
    G-reen & Palmer, for defendants in error; Oris Barth, of counsel.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. James Flannigan, Plaintiff in Error.
    1. Jury, § 69

      —when right to challenge array and objections to regular organization of panel waived. By 'entering upon the business of drawing a jury) from the regular panel as organized, a party waives his right to challenge the array and any objection he might have taken to the regular organization of the panel.
    2. Appeal and ebboe, § 418*—how question raised by motion to quash array of jurors preserved for review. To preserve for review the question raised by a motion to quash an array of jurors, such challenge should be made when the jury were called into the box and before their examination on voir dire was entered upon.
    3. Appeal and errob, § 800*—what must be preserved by bill of exceptions. Where error was assigned as to a motion which was not in the hill of exceptions but in the record proper, held, that the question was not saved for review.
    4. Appeal and error, § 866

      —what abstract must contain. Everything necessary to a decision of questions raised by an appeal or writ of error must appear in the abstract.
    5. Appeal and error, § 883*—when errors assigned relating to instructions considered. Errors assigned on the giving or refusing of instructions will be considered on appeal only where all of the instructions given are presented by the abstract.
    6. Appeal and error, § 1316*—when presumed errors in refusing requested instructions corrected. Where the abstract fails to contain all of the instructions given, it will be presumed those given supplied all deficiencies and corrected all errors, if any, in refusing requested instructions.
    7. Intoxicatino liquors, § 161*—when judgment not excessive. A sentence of ten days in jail and a fine of fifty dollars and commitment until fine and costs were paid, on each of five counts of an information for selling intoxicating liquors to a minor without the written order of the minor’s parent, guardian or family physician, held not to be excessive where the proof showed that the defendant sold twenty drinks to a minor eighteen years old and that he was permitted to remain in the saloon several hours and buy drinks until he had spent his pay-day money and become drunk.
    Error to the County Court of Sangamon county; the Hon. J. B. Weaver, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Templeman & Templeman, for plaintiff in error.
    Edmund Burke, 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. Presiding Justice Thompson

delivered the opinion of the court.

The State’s Attorney of Sangamon county filed his information consisting of five counts in the County Court of that county to the February-term, 1915, charging James Flannigan with selling intoxicating liquors to a minor without the written order of the parents, guardian or the family physician of the minor. A trial by jury resulted in a verdict of guilty, in the manner and form as charged in the information. The court sentenced the defendant to ten days in jail on each count of the information, to pay a fine of fifty dollars on each count and to stand committed to the county jail until the fine and costs are paid. The defendant has sued out a writ of error to review the judgment. It is contended that the court erred in not sustaining a motion to quash the array of jurors. The challenge to the array was not made until after the plaintiff in error had entered upon the business of selecting a jury from the regular panel and had exhausted his peremptory challenges. Plaintiff in error by entering “upon the business of drawing a jury from the regular panel as organized had thus waived his right to challenge the array, and waived any objection which he might have taken to the regularity of the organization of the panel.” Mueller v. Rebhan, 94 Ill. 142. To have preserved the question for review the challenge should have been made when the jury were called into the box and before the examination of the jurors on their voir dire had been entered upon.

It is also insisted that the plaintiff in error made a motion that some other person than the sheriff or any deputy be selected by the court to secure a common-law jury for the reason the sheriff and his deputies have openly stated that they are opposed to the liquor business and because of their pronounced prohibition and law enforcement ideas. This motion, with an affidavit that the facts stated in the motion are true, is not in the bill of exceptions but in the record proper. The question is not saved for review.

It is to be noted that there is no certificate of the clerk of the County Court at the close of the bill of exceptions, and the record commences with the words “Bill of exceptions.” The only certificate of the clerk is at the close of what appears to be the record proper, and certifies that “the foregoing” is a true and complete record of all proceedings together with the original bill of exceptions, and the bill of exceptions follows this certificate.

It is also argued that the court erred in refusing three instructions, namely, numbers 14, 15 and 29, requested by the plaintiff in error. No other instructions either for the People or the plaintiff in error are printed or referred to in the abstract. The record discloses that the court gave six instructions for the People and fourteen at the request of plaintiff in error. Everything necessary to a decision of questions raised by an appeal or writ of error must appear in the abstract. (City of Mt. Carmel v. McClung, 269 Ill. 450.) Error assigned on giving or refusing instructions will be considered on appeal only where all the instructions given are presented by the abstract. (City of Roodhouse v. Christian, 158 Ill. 137, 55 Ill. App. 107; City of Carlinville v. Laager, 129 Ill. App. 647; Belleville Pump & Skein Works v. Bender, 69 Ill. App. 189.) The abstract containing none of the instructions given, as required by numerous decisions, in order that the court may see whether similar instructions had been given, it will be presumed that the instructions given supplied all deficiencies and corrected all errors, if any, in refusing the requested instructions, therefore that assignment will not be further considered.

It is also contended that the penalty assessed is excessive.

The proof is that plaintiff in error sold about twenty drinks of intoxicating liquor to a minor eighteen years of age. The minor was employed by a coal company, and on the day he got his pay check he was permitted to remain in the saloon several hours and buy drinks until he had spent his money and become staggering drunk. Witnesses called by plaintiff in error testified to liquor being furnished to the minor when he was in a very intoxicated condition. It does not appear to this court that the penalties imposed are excessive. The judgment will be affirmed.

Affirmed.


text:
    Nordyke & Marmon Company, Defendant in Error, v. A. H. Drysdale, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 320

      —what may not be subject of set-off in action for price of goods. In an action to recover for certain automobile parts sold and delivered, where the defendant was a seller of plaintiff’s automobiles in a certain territory under a contract with a third party who was also a seller of plaintiff’s automobiles in a certain district, including such territory, under a contract with the plaintiff, held that defendant would not be entitled to set off against plaintiff’s claim a deposit made by him with such third party under his contract with the latter.

      Error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Nordyke & Harmon Company, plaintiff, against A. H. Drysdale, defendant, to recover $131.80 for certain automobile parts shipped by plaintiff to defendant. From a judgment for plaintiff, defendant brings error.
    Charles C. Le Forges, George W. Black and Thomas W. Samuels, for plaintiff in error.
    James S. Baldwin and W. J. Caret, for defendant in error; Weir, Ritter & Richards, of counsel.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

<


text:
    P. N. Jones, Appellee, v. Granite Live Stock Insurance Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Corporations, § 516

      —when evidence insufficient to show purchase of stock in reliance on representations of officers. Evidence held sufficient to show plaintiff did not buy certain stock, relying on representations as to defendant’s solvency and the value of defendant’s capital stock made by certain of defendant’s officers, in an action to recover money paid on the purchase of such stock.

      Appeal from the Circuit Court of McLean county; the Hon. Sain Weltt, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by P. K Jones, plaintiff, against Granite Live Stock Insurance Company, defendant, to recover $1,500 paid on the purchase of ten shares of defendant’s capital stock, with interest. From a judgment for plaintiff for $1,585.21, defendant appeals.
    Stone & Dick, for appellant.
    Rayburn & Buck, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    Eulala McCormick et al., Appellees, v. J. H. Decker et al., Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Intoxicating liquobs, § 172

      —when seller liable under Dram-shop Act for damages for sale of. It is not necessary that the intoxicating liquor should be sold in a licensed saloon to render the seller of intoxicating liquor liable for damages under the Dramshop Act, sec. 9 (J. & A. If 4609).

      Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Búlala McCormick and others, minors, by their next friend, plaintiffs, against J. H. Decker and others, defendants, to recover damages for injury to plaintiffs ’ means of support under the Dramshop Act, sec. 9 (J. & A. j[ 4609). From a judgment for plaintiffs for $1,000, defendants appeal.
    Chafes, Chew & Baker, W. H. Nelms and F. P. Drennan, for appellants.
    F. M. Guinn and Whitaker, Ward & Pugh, for appellees.

      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. Presiding Justice Thompson

delivered the opinion of the court.

2. Intoxicating liquors, § 172 —when seller of liable for damages for sale of. The Dramshop Act, sec. 9 (J. & A. f 4609), makes every seller of intoxicating liquor liable for damages sustained to means of support in consequence of intoxication caused by such liquor, whether such sale was lawful or unlawful.

3. Intoxicating liquors, § 233*—when question whether means of support of children is suitable to their condition in life is immaterial. In an action for damages under the Dramshop Act, sec. 9 (J. & A. If 4609), brought by children against the seller of intoxicating liquors to their father, if the income of the father or his property that would have been applied to the support of his children was reduced and used in the purchase of intoxicating liquors which caused his intoxication, and injury to their means of support was thereby sustained, the question whether their means of support was suitable to their condition in life is immaterial.

4. Intoxicating liquobs, § 208*—when statements of account showing sales of liquor are admissible in evidence. In an action to recover damages for injury to means of support under the Dramshop Act, sec. 9 (J. & A. If 4609), statements of account showing sales of liquor to plaintiffs’ father rendered subsequent to the time the defendant was alleged to have begun selling liquor to him, held properly admitted in evidence.

5. Instructions, § 38*—when proper in language of statute. An instruction repeating verbatim the language of the statute on which a civil action is based is not erroneous.

6. Instructions, § 159*—consideration as series. Instructions are read as a series.

7. Intoxicating liquors, § 168*—how Dramshop Act construed. The words “for all damages sustained” used in the Dramshop Act, sec. 9 (J. & A. 1f 4609), must be construed with the prior words injured in their “means of support.”

8. Instructions, § 137*—when properly refused. Instructions calling attention to particular portions of the evidence, and which are misleading and argumentative, and the material legal propositions in which are contained in others given, held properly refused.


text:
    Village of Brocton, Appellant, v. J. L. Wiese, Jr., et al., Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Licenses, § 12

      —what evidence material to show that club is mere shift or device to avoid payment of license fee. In an action to recover a penalty for conducting a pool and billiard room without a license in violation of a village ordinance, where one or more of the defendants had organized a so-called club of which they were the managing officers and the membership fee in which, or a ticket representing same, was credited for a certain amount of the charge for pool or billiards' until exhausted, after which the ordinary prices for the games were paid in cash, held that while it was immaterial what the defendants did in the management of the room when they had a license, if they had one, yet that the room was run in the same manner and with similar charges as a licensed pool room by the same parties, or some of them before the so-called club was organized, was material to show that the club organization was only a shift or device on the part of the defendants to avoid the payment of a license fee.

      Appeal from the Circuit Court of Edgar county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917t.
    Statement of the Case.
    Action by the Village of Brocton, plaintiff, against J. L. Wiese, Jr., Walter B. Lntterell and Wallace Kaericker, defendants, to recover a penalty for violation of an ordinance of plaintiff. From a judgment for defendants, plaintiff appeals.
    Jambs K. Lauher and Stewart W. Kincaid, for appellant.
    F. G. Van Sellar, for appellees.

      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. Presiding Justice Thompson

delivered the opinion of the court.

2. Licenses, § 12 —when club is mere shift and device to avoid payment of license fee. In an action to recover a penalty for conducting a pool and billiard room without a license in violation of a village ordinance, where one or more of the defendants had organized a so-called club of which they were the managing officers, and the membership fee in which, or a ticket representing same, was credited for a certain amount of the charge for pool or billiards until exhausted, after which the ordinary prices for the games were paid in cash, held that such club organization was a device on the part of the defendants to avoid the payment of a license fee.

3. Criminal law, § 33*—when persons guilty as principals. All persons who aid, abet or assist in the commission of an offense are guilty as principals, as there can he no agency in the doing of an unlawful act.

4. Instructions, § 137*—when properly refused. An instruction which is argumentative in form and not made applicable to the case, although stating the legal proposition involved correctly, is properly refused.

5. Municipal corporations, § 867*—when error in instruction cured. Although an instruction when read alone was misleading, as bearing an inference that all of the defendants in an action to recover a penalty for violation of a village ordinance must be found guilty or all not guilty, held that the error was cured when, on being read in connection with all of the instructions, the jury could not fail to understand they might find some defendants guilty and some not guilty.

6. Municipal corporations, § 865*—when instruction as to form of verdict in action for penalty properly refused. In an action to recover a penalty for violation of a village ordinance against several defendants, an instruction that on finding for the plaintiff the form of the verdict might be to assess the damages at a certain sum against each defendant as the jury might determine from the evidence, held properly refused.

7. Municipal corporations—what is proper form of judgment in action against several defendants to recover penalty. In an action to recover a penalty for violation of a village ordinance against several defendants, a judgment against each defendant severally is erroneous, the judgment should be against such defendants, if any, as are found guilty jointly.


text:
    W. H. Cline, Appellant, v. City of LeRoy, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mobs, § 12

      —when evidence insufficient to sustain verdict for city in action for damages for injury to property. In an action to recover, under section 256a of the Criminal Code (J. & A. 1f 3917), damages against a city for injuries to or destruction of plaintiff’s property by a mob, where it appeared that a crowd of one hundred fifty to three hundred persons congregated about plaintiff’s residence, shouted, pounded on the house, hammered on circular saws hung on trees in the yard, fired guns, threw bricks through windows, built a fire in the street with plaintiff’s lumber, burned his lawn mower, attached a hose to a faucet and threw water over and about the house, plastered mud on the porch, and drove plaintiff and his wife into a closet in terror, and both the city mayor and the marshal knew of such actions on the part of the crowd but took no steps to stop same, held that a verdict and judgment for the defendant were against the manifest weight of the evidence.

      Appeal from the County Court of McLean county; the Hon. James C. Riley, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by W. H. Cline, plaintiff, against the City of LeRoy, defendant, to recover, under section 256a of the Criminal Code (J. & A. j[ 3917), three-fourths of the damages to plaintiff’s property injured or destroyed by a mob. From a judgment for defendant, plaintiff appeals.
    Livingston & Bach and Sterling & Whitmore, for appellant.
    De Mange, Gillespie & De Mange and Leslie J. Owen, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

2. Trial, § 195*—when instructing of verdict improper. Where there is evidence tending to support the contention of both parties, the trial court cannot instruct a verdict.


text:
    The People of the State of Illinois ex rel. William Hardin, Appellee, v. Supreme Lodge Modern American Fraternal Order, Appellant.
    1. Insurance, § 763

      —what period covered by incontestability clause. A clause in a certificate of membership in a fraternal beneficial society that such certificate should be incontestable after remaining in force a certain number of years, held to relate only to conditions existing at the time the certificate was issued and not to subsequent breaches of the contract.
    2. Insurance, § 744*—when application part of certificate. Where a certificate of membership in a fraternal beneficial society referred to and made a part of such certificate the member’s application for membership, held that the application must be read into and with the certificate.
    3. Insurance, § 747*—when subsequently enacted by-law as to forfeiture of membership for engaging in prohibited occupation is valid. Where the application for membership of a member of a fraternal beneficial society provided that should the applicant engage in any 'occupation designated as hazardous he should stand suspended as a beneficiary member so long as he was so engaged; that no notice from any officer of the society should be necessary to cause his suspension; that no recovery should be had on the certificate issued on such application, and that the application and the laws of the society then in force or thereafter promulgated were a part of the contract of insurance of the society, all laws, rules and regulations of which the applicant promised to obey and conform to, and the certificate issued on such application provided that the application, laws, rules and regulations of the society then in force or thereafter adopted were a part of the contract,
      held that a law of the society adopted more than three years after the issuance of such certificate, prohibiting the admission to the society of a class which was at the time of such application and issuance of certificate designated only as hazardous, and providing that any member engaging in the business of the prohibited class should thereby forfeit his membership and that no recovery should be had on such certificate, would be binding upon such member, notwithstanding a provision in such certificate that it should be incontestable after three years.
    Appeal from the Circuit Court of Logan county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 16, 1917.
    King & Miller, for appellant; David L. Wright, of counsel.
    McCormack & Murphy, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Appellee, William Hardin, filed a petition praying for a writ of-mandamus directed to the Supreme Lodge Modem American Fraternal Order, commanding it to accept monthly dues and mortuary payments accrued and to accrue on account of a certificate of membership issued to petitioner in the defendant Order, and to reinstate petitioner in all the rights and benefits of a member in good standing in the defendant Order.

The petition sets forth a copy of the application for membership, the certificate of membership issued to petitioner dated June 19, 1901, with a copy of the bylaws then in force and the amendments and additions thereto since that time, with certain correspondence between petitioner and the supreme secretary of the Order in which the Order claims to have canceled the membership certificate issued to petitioner for the reason that he is engaged in the saloon business.

The defendant filed a special demurrer to the petition on the ground that the petitioner is not entitled to the writ on the facts pleaded. The court overruled the demurrer, and defendant, standing by its demurrer, a writ of mandamus was ordered as prayed. The defendant appeals.

The application for membership signed by appellee June 17, 1901, contains the statement: “I further agree that shall I engage in any of the occupations designated as hazardous I shall stand suspended as a beneficiary member so long as I am engaged in such hazardous occupation, and no notice from any officer shall be necessary to cause my suspension, and in such case no recovery shall be had upon the certificate issued on this application * * *. This application and the laws of the Supreme Lodge now in force or which may be hereafter promulgated are made a part of my contract of insurance with the Modem American Fraternal Order, and I agree to obey and conform to all the laws, rules and regulations of the Order.”

The certificate states that it is issued upon condition that the application “together with the Laws, Rules and Regulations of the Order, now in force or hereafter adopted, be cmd are hereby made a part of this contract.”

At the time appellee joined the Order, by-law No. 28 provided under the heading “Hazardous occupation:” “No person shall be admitted to membership in the beneficial department who is engaged in either of the following occupations: Manufacturers of gun powder * * * and persons engaged in the sale of malt or spirituous liquors as a beverage, either as agent, clerk or principal.

“Any beneficial member engaging in any of the above hazardous occupations, who shall come to his or her death as a result of such hazardous employment, shall not be entitled to recover from the Order on his or her benefit certificate for such death.”

In August 1901, the by-laws were amended and a section entitled “Prohibited risks” adopted. This section provides that “saloon keepers and bartenders” and certain other occupations shall not be admitted to membership, and if any member should engage in the prohibited occupations and come to their death or meet injury as a result of such prohibited occupation, no recovery could be had on the certificate.

In 1910, the by-law concerning prohibited risks was again changed in wording only, the substance remaining the same so far as it affected saloon keepers.

In May, 1914, the by-law concerning “Prohibited risks” was again changed. The effect of this change was not only to prohibit the admission of “manufacturers of gun powder * * * saloon keepers and bar tenders,” but it further provided that if “any beneficiary member engage in any of the above prohibited occupations '* * * such member shall thereby forfeit his or her membership and no recovery can be had on his or her certificate.”

The appellee engaged in the business of keeping a dramshop in the City of Lincoln, in December, 1904. In September, 1915, the supreme secretary of appellant wrote to appellee asking him if he was engaged in the saloon business or as a bartender? He answered stating that he “was then in the saloon business.” Thereupon the supreme secretary wrote a letter to appellee stating that the appellant in May had passed the amended by-law forfeiting all certificates held by saloon keepers, and that the amendment had been published in the official paper of the Order and the local lodges notified of the amendment and informing appellee that his benefit certificate was canceled under the amendment. In ‘the letter was included a check for $17.60 covering all payments made to the Order by appellee since May, 1914. The appellee tendered back the check and a sum equal to all dues and assessments that would have been made on his certificate had it remained in force.

The certificate contains a clause that it shall be incontestable after remaining in force three full years after its date. Appellee contends that by virtue of that provision the appellant could not avoid the certificate for any reason. That clause only relates to conditions existing at the time the certificate was issued and not to subsequent breaches of the contract. Weil v. Federal Life Ins. Co., 264 Ill. 425; Flanigan v. Federal Life Ins. Co., 231 Ill. 399. Such stipulations give the insurer a limited time in which to ascertain the truth of the representations made to obtain it, but cannot control and prohibit a fraternal organization from adopting reasonable by-laws at any time for the conduct of its members, where the application and the certificate both provide that the certificate is issued on condition that the laws of the Supreme "Lodge now in force or which may hereafter be promulgated are made a part of the contract. The right to modify the contract by new or amended by-laws is clearly reserved by apt words in the certificate, and the application states that the laws of the Supreme Lodge now in force or which may hereafter be promulgated are a part of the contract. That provision of the certificate has no effect on the issue here involved.

The controlling question is, did the appellant have the right to pass a by-law which would automatically deprive appellee of his membership because he had become a saloon keeper? It is contended on behalf of appellant that a by-law of a benefit society which provides for the forfeiture of all beneficial rights of a member who engages in the saloon business is not unreasonable and that it is legal, and that under the facts stated in the petition the by-law adopted in 1914 was valid and binding on appellee. By-law 28, of the appellant, adopted in 1897, classed all persons engaged in selling liquors as being in a hazardous business, and provided that no member engaged in such business, who should die or be injured because of such employment, should be entitled to benefits from the Order. In the application for membership signed by appellee, while by-law 28 was in force, he agrees “that shall I engage in any of the occupations designated as hazardous I shall stand suspended as a beneficiary member so long as I am engaged in such hazardous occupation, and no notice from any officer shall be necessary to cause my suspension.”

After the appellee had been a beneficial member for a little over three years he engaged in the business of running a saloon. The changes in the by-laws in 1901 and 1910 only changed “hazardous risks” to “prohibited risks” and changed the description of sellers of “malt or spirituous liquors as a beverage” to “saloon keepers and bartenders.”

The amendment of 1914 is more drastic than the by-law of 1897, in that it provides that any beneficial member engaging in any of the prohibited risks shall be suspended. The appellee in his application agreed that, if he should engage in any of the hazardous occupations, which included selling liquor, he should stand suspended as a beneficiary member and no notice was required to cause his suspension. The bylaws “which may be hereafter promulgated” are made a part of the contract and he agreed to obey and conform to all the laws, rules and regulations of the order. The application is referred to and made a part of the certificate and must be read into and with it. Fullenwider v. Royal League, 180 Ill. 621; Royal Arcanum v. McKnight, 238 Ill. 349.

The case of Moerschbaecher v. Supreme Council Royal League, 188 Ill. 9, 88 Ill. App. 89, is one where the question involved was very similar to the question in this case. In the Moerschbaecher case the by-law In force when the certificate was issued provided for certain action by the order to suspend the beneficial rights of any member who entered into a prescribed business after becoming a member. A later by-law provided that the entering into the prescribed business should of itself operate to suspend beneficial rights. The member accepted the certificate subject to the bylaws in force and such amendments as might be made. It was said by the Appellate Court: “The stipulation entered into by the insured upon joining the Order is an express contract that his membership certificate shall be of no force to create beneficial rights while he should be engaged in the business prohibited by the laws of the Order * * *. The current of authority is to the effect that special contracts voluntarily and fairly entered into by the insured will be enforced. In other words, that while the law may in like cases relieve from a by-law which is unreasonable or oppressive, it will not relieve from a specific contract into which the member of the mutual association has freely and fairly entered with his co-members.” The Supreme Court in affirming the Appellate Court said: “The power and right to pass it (the new by-law) was reserved when said Peter was admitted to membership and he expressly covenanted to obey and be bound by all the laws adopted. We cannot say it was unreasonable, and, conceding that it could not be given retrospective effect, it was clearly effective and legal prospectively.” Supreme Lodge Knights of Pythias v. Kutscher, 179 Ill. 340; Pold v. North American Union, 261 Ill. 433. “A party cannot claim the right to have a contract remain unaltered when the contract itself provides that it may be changed.” Baldwin v. Begley, 185 Ill. 180; Royal Arcanum v. McKnight, supra; Supreme Lodge K. of P. v. Trebbe, 179 Ill. 348; Fullenwider v. Royal League, supra; Norton v. Catholic Order of Foresters, 138 Iowa 467, 24 L. R. A. (N. S.) 1030; Supreme Lodge K. P. v. Knight, 117 Ind. 489; Schmidt v. Supreme Tent of Knights of Maccabees, 97 Wis. 528; Loeffler v. Modern Woodmen, 100 Wis. 79. In the following cases it was held that a change in the by-laws whereby members were forbidden to engage in the retail liquor business under penalty of forfeiture of all their rights was valid as to members who had joined when such occupation was not forbidden and who, after such change was adopted, engaged in such business, and writs of mandamus to reinstate the relators were denied. State ex rel. Strang v. Camden Lodge, A. O. U. W., 73 N. J. L. 500, 64 Atl. 93. (This case is nearly identical with the case at bar.) (State ex rel. Schrempp v. Grand Lodge A. O. U. W., 70 Mo. App. 456; People ex rel. Goett v. Grand Lodge A. O. U. W., 32 N. Y. Misc. 528, 67 N. Y. Supp. 330.)

In this case the application which is a part of the contract contained the agreement of appellee “that shall I engage in any of the occupations designated as hazardous I shall stand suspended as a beneficiary mémber as long as I am engaged in such hazardous occupation,” and no notice shall be necessary to cause my suspension, and “the laws of the Supreme Lodge now in force or which may be hereafter promulgated are made a part of my contract,” and I agree to obey and conform to all the laws, rules and regulations of the Order. Under these facts and the law as announced in the authorities cited, the relator was not entitled to the mandamus as prayed and the court erred in overruling the demurrer. The judgment is reversed and the cause remanded with instructions to the trial court to sustain the demurrer.

Reversed and remanded with directions.


text:
    Harriet R. Miskell, Appellee, v. John Murray, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Breach of marriage promise, § 20

      —when evidence sufficient to show no promise of marriage. Evidence held sufficient to show that there was no promise of marriage between plaintiff and defendant, in an action to recover damages for alleged breach of promise of marriage.
    2. Breach of marriage promise, § 20*—when evidence sufficient to show knowledge that party was married. In an action for damages for alleged breach of promise of marriage, evidence held to show beyond a reasonable doubt that the plaintiff had knowledge during all of the time within which she stated that the defendant made promises to marry her that he was a married man living with his wife.
    3. Breach of marriage promise, § 2*—when contract unlawful and not recognized. A contract of marriage between parties, one of whom is married to another party and known to be so by the parties, is unlawful and cannot be recognized in a court of justice.
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Harriet E. Miskell, plaintiff, against John Murray, defendant, to recover damages for alleged breach of promise of marriage. From a judgment for plaintiff for $2,500, defendant appeals.
    Crayton & Boyle and Acton & Acton, for appellant.
    O. D. Mann, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    M. G. Murray, Appellee, v. Kaskaskia Live Stock Insurance Company, Appellant.
    1. Appeal and error, § 1408

      —when finding not disturbed. Where the evidence in support of the finding of a jury is clear and positive and that opposed to such finding uncertain, the finding will not he disturbed on appeal
    2. Insurance, § 439*—when contract not construed as providing for notice of illness of animal immediately or within specified time. Where a policy of insurance on the life of a horse provided, in separate paragraphs, that in the event of the horse’s sickness or an accident a veterinarian should be “immediately” procured, and that notice should he given to the insurer hy telegram or telephone and confirmed hy letter within twenty-four hours thereafter, held that neither the words “immediately” nor “within twenty-four hours” had any application to the notice by telegram or telephone.
    3. Contracts, § 168*—when construed against party. Words in a contract will be construed most strongly against the party who used them.
    4. Indemnity, § 8*—when words should not be read into contract. Words should not he read into a contract of indemnity for the purpose of defeating the indemnity.
    5. Insurance, § 120*—when contract should not be construed against insured. A contract of insurance should not he construed against the insured unless the language used reasonably demands such construction.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Chafee, Chew & Baker, for appellant.
    Barry & Morrissey and Murray & Morrissey, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

M. G. Murray brought this suit in assumpsit against the Kaskaskia Live Stock Insurance Company on a policy of insurance issued by the defendant on the life of a horse which was injured and died during the term of the policy.

The declaration contains one count which avers that the defendant made and delivered its policy to the defendant, in consideration of $40 paid, and thereby insured against loss by death from disease, accident or lightning from April 26, 1914 to April 20, 1915, a certain stallion of plaintiff in the sum of $500; that thereafter on November 9,1914, said stallion was accidentally injured and as a result thereof died on November 19th. It is further averred that upon said stallion being injured plaintiff immediately employed a veterinarian and made every effort to save the life of said stallion, and gave notice to the defendant of said accident and death as provided in said policy, and that plaintiff has fully kept and performed all the provisions of the policy to he performed by him and has sustained loss, etc. A copy of the policy was not filed with the declaration, for want of which the case was continued at the first term of court. At the second term, the defendant filed pleas (1) of the general issue; (2) a plea of tender of $51.35, the amount of the premium, interest and costs and three other pleas. A demurrer was sustained to the last three pleas and the defendant was given leave to file amended pleas. It filed one amended plea setting up the facts averred in the three pleas, to which a demurrer had been sustained, with the further fact of a written application made by plaintiff for the policy. The amended plea avers that in an application for the policy dated April 18, 1914, which application is to become a part of the policy if accepted, the plaintiff promised, in case of sickness or accident to the animal insured, to at once give the defendant notice of such sickness or accident with full particulars; that the policy provided that in the event of the animal’s sickness or injury by accident it shall be the duty of the plaintiff to give notice of such sickness or accident to the defendant at the home office, at S'helbyville, Illinois, direct, and not through agents, which notice shall be by telephone or telegraph, and confirmed by letter within twenty-four hours thereafter, and a failure to give notice as aforesaid,' if death ensue, shall release the defendant from all liability from any loss occurring to plaintiff by reason of such sickness or accident; that on the morning of November 9, 1914, said horse was accidentally injured from which it thereafter died, on November 19, 1914; that the defendant had a telephone in its place of business and that plaintiff lived near the Village of McLean and had a telephone within easy access of his place of business, and that plaintiff, not regarding his promise made in the application and the stipulation in the policy, neglected to give any notice whatever until five days after the injury aforesaid was received whereby defendant was released from any liability under said policy.

The plaintiff filed replications to the amended plea, one of which avers that he did not execute the application as alleged; and four others averring, in substance, that the defendant did not have direct telephone connection in its office, and plaintiff did not have a telephone within easy access of his place of business; that the horse was injured on the 9th of November, and after learning of the injury he immediately, on, to wit, November 13th, gave notice to defendant by telephone and within twenty-four hours confirmed said notice by letter. Issues were joined on all the replications. .

At the close of the evidence the defendant submitted four special interrogatories to be answered by the jury. The first interrogatory is: “Did Murray, in his application, promise in case of accident to the horse to notify the defendant at once of such accident?” This the jury answered, “No.” It also returned a general verdict in favor of plaintiff for $530.88. Judgment was entered on the verdict for the plaintiff. Later during the term the court vacated that judgment with the subsequent orders and entered judgment for plaintiff and against the defendant for $479.53, being the amount of the verdict less the tender, and it was further adjudged that the tender be paid to plaintiff. The defendant appeals.

No question is raised concerning the pleadings. The only question of fact presented for review is the issue made by the first replication to the amended plea. The application for the policy was solicited and filled out by one Busenhart, an agent of appellant. Question 31 is: “In case of sickness or accident, do you agree to notify this company at once, giving the full particulars of the disease or accident, together with the name of the veterinary you employ?” “Yes.” He testified that the application was signed by appellee, and that he asked appellee the questions and wrote his answers. He also said he could not swear he asked appellee question 31, and could not say whether or not appellee answered “Yes” to that question. The appellee testified that question No. 31 was not asked him and that Busenhart did not read it to him, and that he did not know that question was in the application until he saw the application in court; that he did not have his glasses with him when the application was signed and he could not read fine print without them and that the application was not read over to him before he signed it.

The evidence for the appellee on the question of whether he was asked the question or not is clear and positive. The evidence for appellant is uncertain. The appellant submitted that question to the jury, and it found that appellee did not promise to notify the appellant at once in case of an accident. We see no reason for disagreeing with the finding of the jury.

Appellant also contends that under paragraph three of the mutual agreements in the policy it was the duty of appellee to notify appellant of the accident immediately, or within twenty-four hours, and because of the failure to give notice within such time no recovery can be sustained.

Paragraph three is: “3. That in the event of said animal or animals’ sickness, or an accident arising from any cause whatever, it shall be the duty of the insured to immediately procure the services of a veterinarian, and use every possible means to save the life of said animal or animals.

“Notice of sickness or accident must be given to the home office at Shelbyville, Illinois, direct, and not through agents, which notice shall be by telegram or telephone, and confirmed by letter within twenty-four hours thereafter. The failure to perform any of the requirements above mentioned, as embodied in this paragraph, if death should ensue, shall release this company from any and all liability under this policy. ’ ’

Paragraph three consists of two subparagraphs. It does not fix any time within which the notice by telegram or telephone shall be given. The first subparagraph provides for the employment of a veterinarian immediately in case of sickness or accident. The only time fixed in the second subparagraph, which is the one providing for notice, is for confirming by letter the notice by telegram or telephone which is required to be given within twenty-four hours after the notice by telegram or telephone has been given. . Neither the words “immediately”.nor “within twenty-four hours” have any application to the notice by telegraph or telephone.

It is insisted that, because a notice of sickness or accident was required to be given by telegraph or telephone, the court should construe the sentence as requiring the notice at once or immediately. The sub-paragraph is not so worded. If it was the intention of appellee to require notice immediately it could easily have so stated the requirement.

“A contract for insurance is a contract for indemnity, and unless indemnity for the loss sustained has been received, the law will lean to that construction which carries out the purpose of such a contract and gives such indemnity.” Niagara Fire Ins. Co. v. Heenan & Co., 181 Ill. 575; Healey v. Mutual Acc. Ass’n, 133 Ill. 556. It is a well-settled rule of construction that words will be construed most strongly against the party who used them for the reason that a man is responsible for ambiguities in his own expression. 9 Cyc. 590.

The court gave two instructions at the request of appellee.' Appellant insists the second is erroneous. It tells the jury that if it believes from the evidence that the horse, insured under the policy in evidence, was accidentally injured and died as the result of such injury, and the jury believes that plaintiff, immediately after said horse was injured, procured the services of a veterinary and used every possible means to save the life of the horse and within a reasonable time, under all the circumstances appearing in evidence, gave notice of the accident and injury to the defendant at its home office at Shelbyville, direct, by telephone, and confirmed such notice within twenty-four hours thereafter by registered letter, and if you further believe from the evidence that interrogatory No. 31, now appearing in the application, was not asked of plaintiff, nor read to him or otherwise brought to his attention, and that no answers to such interrogatory were made by plaintiff or written in said application with his knowledge or consent, if you believe such facts from the evidence, your verdict should be for plaintiff. The argument is that because paragraph three of the material agreements in the policy contains the sentence, “Notice of sickness or accident must be given to the home office at Shelbyville, Illinois, direct, and not through agents, which notice shall be by telegram or telephone and confirmed by letter within twenty-four hours thereafter,” that the word “immediately” in the preceding sentence, which refers only to the employment of a veterinarian, should be read into the sentence concerning notice, or that because notice was required to be given by telegraph or telephone, that sentence in the contract will be read that such notice must be given at once or immediately. Such words should not be read into the contract for the purpose of defeating the indemnity. The contract should not be construed against the insured unless the language used reasonably demands such construction. The words in the contract should be given their usual meaning. The appellee did immediately employ a veterinarian, and did give notice by telephone and confirmed the notice within twenty-four hours thereafter.

It is also urged that the court erred in refusing several instructions requested by appellant. Each instruction refused directs a verdict. Some of them assume that question 31 was answered by the appellee, when, by the pleading that was made an issue to be decided by the jury, others insert the words at once or immediately into paragraph three of the mutual agreements concerning notice in the policy. Several of them are also more or less argumentative. There was no error in their refusal. The verdict is sustained by the evidence. Finding no error in the case the judgment is affirmed.

Affirmed.


text:
    Mrs. Horace A. Smith, Appellee, v. St. Paul Fire & Marine Insurance Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 479*—what is sufficient proof of authority as adjuster. In an action to recover on a fire insurance policy, where the defendant introduced in evidence a “nonwaiver agreement” relating to an adjustment of the loss to which its name was signed by a certain party as its State agent, held that such agreement was sufficient proof of the fact that such party was its authorized adjuster.
    2. Insurance, § 479

      —when company hound by acts of adjuster. Where an insurance company adopted as its act a certain “non-waiver agreement” relating to an adjustment of a loss under a policy issued by it, to which agreement its name was signed by its State agent, held that the company could not repudiate other acts of such State agent in the line of an adjustment, in an action to recover on the policy.
    Appeal from the Circuit Court of Edgar county; the Hon. Walteb Brewer, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Mrs. Horace A. Smith, plaintiff, against St. Paul Fire & Marine Insurance Company, defendant, to recover on a fire insurance policy. From a judgment for plaintiff for $612.50, defendant appeals.
    O’Hair & Rhoads, for appellant.
    J. K. Lauher and Paul B. Lauher, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

3. Insurance, § 479*—when company bound by acts of adjuster. An Insurance company is bound by the acts of its adjuster within the scope of his authority.

4. Insurance, § 458*—when company estopped to deny lack of notice of loss. Where an insurance company sends an agent to adjust a 'loss, it is estopped to subsequently deny that it had proper notice of the loss.

5. Insurance, § 444*—what constitutes notice to company of loss. Notice to the adjuster of an insurance company as to a loss under a policy is notice to the company.

6. Insurance, § 458*—when failure to make proofs of loss in time is no defense. Where the adjuster of an insurance company, after notice of a loss, represented to the insured that his wife was ill and that he would come shortly and get the loss settled, and the insured was thereby misled until the time fixed in the policy for making proof of the loss had elapsed, held that the company could not escape liability under the policy on the ground such proof was not made within such time.


text:
    A. F. Warren, Administrator, Defendant in Error, v. William J. Jackson, Receiver, Plaintiff in Error.
    1. Death, § 48

      —when evidence as to financial condition of widow or next of kin immaterial. In an action to recover damages under the Federal Employers’ Liability Act for the death of defendant’s employee caused by defendant’s negligence, evidence as to the financial resources or condition of the widow or next of kin of the deceased, held to be immaterial.
    2. Evidence, § 78*—when statements admissible as part of res gestee. In an action to recover damages for death of defendant’s employee while at work on defendant’s railroad, testimony of a brakeman concerning a statement made by him to the engineer of the train just before or at the time the accident to the deceased was happening, calling to the engineer to put his head out of the window and take a signal, held admissible as part of the res gestee of the management of the train before the accident, but to have been inadmissible if such call had been after the accident.
    3. Master and servant, § 566*—when evidence insufficient to support counts of declaration in action for, injuries while train

      engaged in interstate commerce. Where a train started from a certain point with cars of goods hilled from without the State, which were disconnected from the train several stations before reaching the place where plaintiff’s intestate was injured, and there was no evidence of any other goods or cars being on the train at that time that were being transported from or to any foreign State, held that there could be no recovery on any count of the declaration, in an action under the Federal Employers’ Liability Act of 1908, to recover damages because of such injuries, which alleged alone that the defendant was engaged in interstate commerce, based on an allegation that defendant was carrying cars or goods from or to some other State.
    4. Commerce, § 4

      —when employee engaged in interstate commerce. The work of taking material to the place where it is to be used to repair and improve an interstate railroad is a part of the work of improvement, and one carrying material to be used in repairing or in keeping in suitable condition an instrumentality of interstate commerce is engaged in such commerce.
    5. Master and servant, § 98*—what is effect of Federal Employers' Liability Act on State laws. In the matter of the liability of an employer for the death of an employee while engaged in interstate commerce, the Federal Employers’ Liability Act has superseded all State laws.
    6. Damages, § 21*—when recovery may be had for pain and suffering. An injured person suing for damages, if he recovers, is entitled to compensation for pain and suffering.
    7. Death, § 32*—when representatives of deceased employee may recover for pecuniary loss and pain and suffering of deceased. Under the Federal Employers’ Liability Act .as amended in 1910, the right of a person injured to recover for pain and suffering is preserved to the representatives of such person who survived the injury in a conscious condition some appreciable length of time, and recovery is allowed such representatives in such case both for pecuniary loss and for conscious pain and suffering endured by the deceased during the period he survived, although it was brief.
    8. Damages, § 172*—what is proof of pain and suffering. In an action to recover damages for pain and suffering caused by injuries sustained, the pain and suffering may be shown by the acts and natural involuntary expressions of present pain, such as expressions of the features, groans, exclamations, screams, and the like.
    9. Evidence, § 86*—when statements of party concerning pain are competent. In an action to recover damages for pain and suffering caused by injuries sustained, statements of the party concerning pain are not competent unless made to a physician treating him.
    10. Master and servant, § 430

      —when contributory negligence does not bar recovery under Federal Employers’ Liability Act. In an action under the Federal Employers’ Liability Act to recover damages for injuries sustained and death due thereto, where such injuries and death were the result of the negligence of a coemployee of the deceased while engaged in interstate commerce, held that recovery was allowable, although the negligence of the deceased may have materially contributed to his injuries and would diminish the amount of recovery.
    11. Instructions, § 38*—propriety of in language of statute. An instruction in the language of a statute is not erroneous.
    12. Master and servant, § 302a*—when assumed rish no defense under Federal Employers’ Liability Act. Under the Federal Employers’ Liability Act, the defense of assumed risk is expressly eliminated in cases where injury or death results from any defect or insufficiency due to the negligence of the carrier in its cars, engines, appliances, machinery, track, roadbed, or other equipment.
    13. Master and servant, § 312*—what rislcs assumed, by employee. An employee assumes the ordinary risks and hazards of his occupation and those defects and risks which are known to him or would be discovered by the exercise of reasonable care.
    14. Master and servant, § 308*—what rislcs not assumed by employee under Federal Employers’ Liability Act.- Under the Federal Employers’ Liability Act, an employee does not assume risks created by the negligence of others or arising oilt of defects in cars or = equipment.
    15. Master and servant, § 496*—when contributory negligence proximate cause of injury to employee. Contributory negligence is such an act or omission on the part of an employee amounting to a want of ordinary care which, concurring or co-operating with a negligent act of an employer, is the proximate cause or occasion of an injury complained of.
    16. Master and servant, § 482*—what constitutes contributory negligence of employee. A violation by an employee of the rules of an employer is contributory negligence and not an assumption of risk.
    17. Appeal and error, § 1241*—when party may not complain of instructions. A party may not be heard to complain of instructions given at his request.
    18. Master and servant, § 816*—when instruction on damages in action under Federal Employers’ Liability Act not erroneous. In an action under the Federal Employers’ Liability Act to recover damages for injuries sustained and death due thereto, an instruction in the language of the statute requiring that damages be diminished in proportion to the negligence attributable to the employee, held not to be erroneous.
    Error to the Circuit Court of Moultrie county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Homer T. Dick, J. K. Martin, Edward C. Craig and Donald B. Craig, for plaintiff in error.
    C. B. Patterson and E. J. Miller, 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.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action on the case brought under the Federal Employers’ Liability Act of 1908, and the amendment thereto of 1910, by A. F. Warren, as administrator of the estate of Michael H. Warren against William J. Jackson, receiver of the Chicago & Eastern Illinois Bailroad Company, to recover damages for pain and suffering of the intestate after he was injured and for his death alleged to have been caused by the negligence of the defendant. There was a verdict and judgment of $2,000 in favor of plaintiff, to review which the defendant prosecutes this writ of error. The plaintiff in error hereinafter will be called the defendant and the defendant in error the plaintiff.

The declaration contains eight counts, each of which avers that on July 13, 1914, the defendant, as receiver of the Chicago & Eastern Illinois Bailroad Company, a corporation, was operating a railroad from Chicago, Illinois, to Chaffee, Missouri, to St. Louis, Missouri, and to Terre Haute, Indiana, and that it was a carrier of interstate commerce and interstate passengers. The first count further avers that the deceased was a brakeman in the employ of defendant on a freight train hauling crushed rock that was being used for ballast for the improvement, betterment and safety of said track for the benefit of the traffic then being hauled over it, and by reason whereof the defendant was engaged in interstate commerce between Illinois, Missouri and other States, and the plaintiff:' avers that the defendant obtained the crushed rock at a station south of Hudgens, Illinois, and was taking the same northward to a location near Hudgens, there to be unloaded to become a part of the permanent structure of the roadbed; that at the place where said ballast was to be used, the engineer in charge of the train negligently and carelessly, without any warning or signal to the deceased, pushed and surged the forward part of said train containing the cars loaded with ballast, which had been uncoupled from the merchandise portion of the train, backward against the rear section so that the intestate, in the performance of his duty as a brakeman, while in the exercise of due care, was caught and crushed between the uncoupled portions of said train; whereby he was grievously wounded and suffered great pain and injury, and died within an hour thereafter while being taken to a hospital; that the intestate left surviving A. F. Warren, his father, and Laura J. Warren, his mother, but no wife, child or children or descendants of a child, by reason whereof the said parents have been deprived of their means of support, etc.

The second count differs from the first in that it avers that the train, on which the intestate was engaged when injured, was an intrastate train running from Thebes to Marion, Illinois, carrying, at the time of the injury, divers cars and packages of interstate freight, and that the engineer in charge of the train negligently reversed the engine and forced the forward part of the train, which had been disconnected, back against the rear portion and, negligently and wantonly injured the intestate.

In another count it is averred that one of the cars in the train had a defective air brake, a safety appliance used in operating the train, which defect was known to the engineer and unknown to the intestate, and after the train was disconnected and the forward portion moved a short distance, said brake “set” on the car, and caused the wheels to lock, and that the engineer then negligently forced the fore part of the train back and caught the intestate, etc. In another count it is averred that the air brake had been defective so long that defendant should have known of that fact, but that it negligently kept said car with the said defective air brake in the train and that the engineer negligently forced the forward part of the train back, etc., and that it was unknown to the intestate that there was a defective air brake on the train. Other counts contain different combinations of the foregoing averments.

On the trial the plaintiff was permitted to make proof by the father and mother of the deceased concerning their health, income and property. This is assigned for error.. The evidence of the father was excluded but that of the mother was not excluded. “While it is erroneous to admit evidence of the resources of the widow or next of kin or their financial condition, it is not error to allow questions concerning the earnings of the deceased and whether the wife and children were supported by him.” Brennen v. Chicago & C. Coal Co., 241 Ill. 610. “The poverty, wealth, helplessness or dependence of the relatives of the deceased is immaterial on the question of the recovery of damages. That question is not to be considered in measuring or estimating the loss sustained or in determining: the liability where the death is caused by the wrongful act of the defendant.” Mahlstedt v. Ideal Lighting Co., 271 Ill. 154 [12 N. C. C. A. 499]; Chicago, P. & St. L. R. Co. v. Woolridge, 174 Ill. 330; Pennsylvania Co. v. Keane, 143 Ill. 172.

It is also insisted that the court erred in admitting the testimony of a brakeman concerning a statement made by him to the engineer just before or at the time the accident was happening, calling to the engineer to put his head out of the window and take a signal. The call was apparently a part of the res gestae of the management of the train before the accident and was proper. If the call had been after the injury had been inflicted, then manifestly it would have been improper.

It is very strenuously argued on behalf of defendant that the train upon which the intestate was working when injured was not at that time engaged in interstate commerce. Plaintiff insists that the train on which the deceased was employed was engaged in interstate commerce, (1) because it was carrying ballast to improve the roadbed over which interstate commerce was carried by this or other trains; and (2) that at the time of the injury the train had goods on it billed to or from other States.

When the train started from Thebes that morning it had two cars that contained goods that were billed from without the State of Illinois. Neither of these cars nor any of the goods that had been in them, at Thebes were in the train when the deceased was injured, but they had been disconnected from the train several stations before reaching the place where the deceased was injured. There is no evidence in the record of any other goods or cars being in the train that were being transported from any foreign State to the State of Illinois, or through the State of Illinois to any other State. Hence there cannot be a recovery on any count which alleges alone that the defendant was engaged in interstate commerce based on the allegation that it was carrying cars or goods from some other State to Illinois or from or through Illinois to some other State.

The train on which the deceased was employed, and by which he was injured, had in it several cars loaded with crushed rock to be used as ballast in improving or repairing the roadbed over which interstate commerce was carried by this or other trains. The contention of defendant is that the record does not show that the ballasting being done was not a part of the original construction of the railroad, and Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146 [3 N. C. C. A. 779], is cited as sustaining that contention and that the use of ballast in original construction of a railroad would not bring such railroad within the federal act. The expression used in that case on which defendant relies is: “Of course, we are not here concerned with the construction of' tracks, bridges, engines or cars which have not as yet become instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities, and during their use as such.” It was also said: “A track or bridge may be used in both interstate and intrastate commerce, but when it is so used it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce.” The work of taking material to the place where it is to be used to repair and improve an interstate railroad is a part of the work of improvement, and one carrying material to be used in repairing or in keeping in suitable condition an instrumentality of interstate commerce is engaged in such commerce. Pedersen v. Delaware, L. & W. R. Co., supra; Wabash R. Co. v. Hayes, 234 U. S. 86 [6 N. C. C. A. 224]; St. Louis, S. F. & T. Ry. Co. v. Seale, 229 U. S. 154. The railroad having been constructed and being already in use as an instrumentality for interstate commerce, and the train, at the time of the accident, carrying ballast to be used in better preparing the roadbed for the transmission of such commerce, the defendant and the deceased were then engaged in interstate commerce.

It is contended on behalf of defendant that the court erred in giving instructions requested by plaintiff directing the jury, if they should find for the plaintiff, in arriving at the damages, to consider the pain and suffering the deceased was subjected to by the injury and in refusing to instruct the jury to disregard the evidence of pain and suffering. In the matter of the liability of an employer for the death of an employee while engaged in interstate commerce, "the Federal Employers’ Liability Act has superseded all State laws, and the amount of damages recoverable is not governed by the law of the State where the accident occurred. Seaboard Air Line Ry. v. Horton, 233 U. S. 492 [8 N. C. C. A. 834]; Devine v. Chicago, R. I. & P. Ry. Co., 266 Ill. 248. The federal statute provides that the right of action given to “a person suffering injury shall survive to his or her personal representative for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury.”

The evidence shows that the deceased survived the receipt of the injury about an hour, during which time he was conscious and talked some. An injured person .suing for damages, if he recovers, is entitled to compensation for pain and suffering. Under the' Federal Employers’ Liability Act, as amended in 1910, that right is preserved to the representative of a deceased person who survived the injury in a conscious condition some appreciable length of time, and a recovery is allowed for the benefit of the parents of the deceased for pecuniary loss, and also for conscious pain and suffering endured by the decedent during the period he survived, although it is brief. St. Louis, I. M. & S. Ry. Co. v. Craft, 237 U. S. 648 [9 N. C. C. A. 754]; Kansas City Southern R. Co. v. Leslie, 238 U. S. 599; Great Northern R. Co. v. Capital Trust Co., 242 U. S. 144. There was no error in the rulings on that question.

It is also insisted that the court erred in admitting evidence of statements made by the deceased, that he asked for water, and said “Good-bye,” “I am dying,” “I’m so sick.” It was proper to show pain and suffering by the acts, and natural involuntary expressions of'present pain, such as expressions of the features, groans, exclamations, screams, and the like, but in Illinois, statements' of the sufferer concerning pain, unless made to a physician treating the injured person, are not competent. 7 Encyc. of Ev. 386-391; Lake Street El. R. Co. v. Shaw, 203 Ill. 39: note to 24 L. R. A. (N. S.) 256.

Defendant insists that no judgment for plaintiff can be sustained on the evidence. There is evidence tending to show that the deceased was injured by the negligence of a co employee, the engineer in charge of the train, but at this time we do not express any opinion as to the weight of such evidence since the case must be tried again. If his injury and death were the result of such negligence, and the train was engaged in interstate commerce, then the plaintiff is entitled to recover although the negligence of the deceased may have materially contributed to his injury and would diminish the amount of the recovery.

It is insisted that the court erred in giving instructions requested by plaintiff. The first instruction is a copy of section 1 of the Federal Employers’ Liability Act. ' An instruction in the language of the statute is not erroneous. Mertens v. Southern Coal & Mining Co., 235 Ill. 540. There was, however, no reason for giving the instruction as it is abstract, and other instructions were given in which the statute was made applicable to the case.

Instructions two and three given for plaintiff did not limit the right of recovery to the specific negligence alleged in the declaration nor to that of the employee charged to have been negligent, but authorized a recovery on any negligence. The only negligence of an employee alleged is that of the engineer, and in connection with that that there was a defective air brake which was or should have been known to the defendant. The instructions inform the jury that the plaintiff was entitled to recovery if the injury and death resulted in whole or in part “from the negligence of any of the officers, agents or employees of” defendant. It is also contended that these instructions are erroneous because they make no reference to assumed risk. The argument on behalf of the defendant is that the air brakes were not defective and that the decedent was killed in consequence of a risk assumed when he, in violation of the rules, stepped between the cars while they were in motion. The Act of 1908 under which this suit is prosecuted, by making an employer liable to its employees for any negligence of an employee, abolishes the common-law fellow-servant rule, and also provides that “where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee, provided that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case, where the violation of such common carrier.of any statute enacted for the safety of employees contributed to the death or injury of such employee.” It also provides that “such employee shall not be held to have assumed the risk of his employment in any case, where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” (Central Vermont Ry. Co. v. White, 238 U. S. 507 [9 N. C. C. A. 265]; Illinois Cent. R. Co. v. Scaggs, 240 U. S. 66.) An amendment thereto, enacted in 1910, provides that the movement of cars that have been properly equipped as provided by the act and such equipment has become defective, to places of repair, shall be at the sole risk of the carrier and the carrier shall not be relieved from any liability for the death or injury of an employee by reason of the movement of such car. The federal statute appears to have expressly eliminated the defense of assumption of risk in eases where injury or death results from any defect or insufficiency due to the negligence of the carrier in its cars, engines, appliances, machinery, track, roadbed or other equipment.

An employee assumes the ordinary risks and hazards of his occupation, and those defects and risks which are known to him or would be discovered by the exercise of reasonable care. He does not under the federal statute assume risks, created by the negligence of others or arising out of defects in cars, or equipment. Contributory negligence is such an act or omission on the part of an employee, amounting to a want of ordinary care, which concurring or co-operating with a negligent act of an employer is the proximate cause or occasion of an injury complained of, and a violation of the rules of an employer has been held to be contributory negligence and not an assumption of risk. Oberlin v. Oregon-Washington R. & Nav. Co., 71 Ore. 177, 142 Pac. 554; Carter v. Kansas City Southern Ry. Co. (Tex. Civ. App.), 155 S. W. 638.

None of the instructions given at the request of plaintiff based a right of recovery on any negligence except that of officers, agents or employees of defendant. The plaintiff’s intestate did not assume the risk of the negligence of his fellow-servants, hence there was no error in the instructions given at the request of the plaintiff in failing to instruct concerning the law of assumed risk. The court, at the request of the defendant, told the jury that it must consider “only that as the law which is given you by the court.” The twenty-third, twenty-fourth, twenty-fifth and twenty-sixth instructions given at the request of defendant undertake to inform the jury concerning the law of assumed risk. The twenty-third defines assumed risk, and then states that assumed risk is a part of the contract of employment, and if the jury believe “that one of the risks so assumed by plaintiff’s decedent was the risk of having happen what did happen in this case, then your verdict should be for the defendant. ’ ’ The twenty-fifth, in its conclusion, tells the jury that “if you believe from the evidence that the injury to the plaintiff’s intestate resulted from a risk that the plaintiff’s intestate assumed when he entered the employment of the defendant, it will be your duty, no matter how negligent yon believe the defendant to have been, to find your verdict for the defendant.” The defendant may not be heard to complain of instructions given at its request.

The fifth instruction given at the request of plaintiff instructed the jury as to the law where goods are being transported on the train on which an accident occurs from one State to another. We do not find any evidence showing that there were any interstate goods on this train at the time of the, accident, and hence there is no evidence on which to base this instruction.

The eighth instruction informed the jury that if it found from the evidence that the defendant was engaged in interstate commerce at the time of the injury and that the “injury was the result in whole or in part of the negligence of any of the officers, agents or employees of said receivers, and you further find from the evidence that Michael H. Warren was also guilty of negligence which contributed to his injury and death,” this fact would not bar a recovery, but “the damages which you allow in the case, if any, should be diminished by the jury in proportion to the amount of negligence, if any, which you find to be attributable to the said Michael H. Warren in connection with said injury.” It is contended that this does not state the true rule for comparison of the negligence of the parties. It is in the language of the statute, and requires the damages to be diminished in proportion to the negligence attributed to the employee. There is no error in the respect complained of although the instruction erroneously refers to negligence of employees not alleged in the declaration.

It is also argued that the court erred in refusing instructions requested by defendant, but the points argued have been already reviewed. For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.