author: Davis, J.

text:
    George L. Collins et al. v. Frank E. Crocker.
    Evidence —Where the subject-matter of inquiry was as to the time when a pen and ink line was drawn through the printed words “if not paid at maturity” in a certain note, and two witnesses were allowed to give their opinion as to the time the line had been drawn, and the ground for permitting them to testify as experts was that they had been in the banking business fifteen years, had handled commercial notes, and had investigated the handwriting of different parties. Held, that their evidence was inadmissible. It was not a question for expert testimony.
    Appeal from the Circuit Court of Champaign county; the Hon. C. “B. Smith, Judge, presiding.
    Opinion filed May 22, 1884.
    Mr. Wm. A. Day, for appellants;
    as to expert testimony in proof of handwriting, cited Jewett v. Draper, 6 Allen, 434; Ellingwood v. Bragg, 52 N. H. 490; Goldstein v. Black, 50 Cal. 462; Turner v. Hand, 3 Wall. 115; Whitaker v. Parker, 41 Ia. 585; Cowan v. Beall, 1 McArthur, 221; Sackett v. Spencer, 29 Barb. 180; Whitney v. Boston, 98 Mass. 408; Kernin v. Hill, 37 Ill. 209; Brobston v. Cahill, 64 Ill. 356.
    Mr. Thomas J. Smith, for appellee;
    cited Pate v. People, 3 Gilm. 644; Slate v. Ward, 39 Vt. 225; Reese v. Reese, 90 Penn. 89; Cole v. Clark, 3 Wis. 323; Goodyear v. Vosburgh, 63 Barb. 154; People v. Hewit, 2 Parker (N. Y.), 20; Withee v. Rowe, 45 Me. 571; Dubois v. Baker, 40 Barb. 556; Woodman v. Dana, 52 Me. 9; Foster v. Jenkins, 30 Ga. 476; Linn v. Sigsbee, 67 Ill. 75.
   Davis, J.

This was an action of assumpsit brought by appellee to recover the amount of a promissory note claimed to have been executed to him by appellants.

The note sued on, and as it appeared when offered in evidence by appellee, is as follows:

“ Dollars, 400.

“ Champaign, Ill., January 14th, 1882.

“ On or before the first of February, 1883, for value received we, or either of us, promise to pay to the order of F. E. Crocker, four hundred dollars at the First Rational Bank of Champaign, with eight per cent, interest per annum from date until paid, if ntf paid at maturity.

“ (Signed) G. L. Collins,

“ Thomas Barker.”

Pleas of the general issue and non est factum sworn to were interposed by appellants.

A printed blank note was used by the parties in this case, and the words in the body of the note, “if not paid at maturity ” formed a part of the printed blank, and through these printed words, at some period of time, a single line or scratch had been drawn, with pen and ink as shown above, so as to strike out such words.

The effect of striking out these words, was to make the principal sum of four hundred dollars draw interest from January 14, 1882, the date of the note, without reference to the time of payment, while if those words remained in the note as printed, no interest could be recovered if the principal was paid at maturity.

Tinder the issues raised by the pleas, it became very important to determine when the printed words “ if not paid at matnrity” were stricken out; if stricken out after the execution of the note and without the consent of appellants, the alteration was material and sufficient to avoid the note.

It was not claimed by appellants that the note in suit was not signed by them, but they contended, and so testified as witnesses on the trial, that the words “ if not paid at maturity ” were in the note when they signed and delivered it to appellee, and at that time there was no ink line drawn through them nor were those words stricken or scratched out, nor did appellants ever consent or assent to their being stricken out. On the other hand appellee testified with equal directness and as positively, that the note was the same when he testified as it was when it was delivered to him by appellants, and reads exactly the same as it did then, and that the ink line drawn through the words “ if not paid at maturity ” was there when the note was delivered to him.

In addition to the testimony of the three parties who had actual knowledge of the condition of the note when it was delivered, the court below permitted two witnesses to be sworn for appellee and to testify to the jury, as experts, against the objections of appellants repeatedly urged at every j>roper opportunity.

One of them, George W. Curtis, testified he had been in the banking business fifteen years and was now in the First Hational Bank of Urbana, and it had been a part of his business to handle commercial paper and study genuineness of notes. He had investigated notes and the handwriting of different parties, and had used a magnifying glass to test handwriting and had found a magnifying glass the best test. He had examined with a magnifying glass the writing and scratch in the note in suit, at the request of appellee’s counsel, about a week before the trial, and in his opinion, the entire Written portion is in the same handwriting •excepting the one scratch through the words “ if not paid at maturity.” The signature of G. L. Collins and the scratch ai'e in the same ink and made at the same time and by the same pen and by the same person. In his opinion the same person who wrote “ G. L. Collins ” to the note, made the scratch, and it was done at the same time the name was written.

He admitted on cross-examination he was not an expert in penmanship or handwriting and made no pretensions to being an expert.

The other witness, S. T. Bnsey, testified against similar objections of appellants, that he had been in the banking business fifteen years, had handled a considerable number of notes and had experience with handwriting, and in his opinion the stroke through the words in the note “ if not paid at maturity ” was made at the same time and with the same ink as the body of the note was written. In his opinion the same hand that wrote the name “G. L. Collins” wrote the ink line through the words “ if not paid at maturity.”

On cross-examination he testified he made up his opinion that the scratch through those words was made at the time the body of the note was written from the way those notes are usually drawn and from the appearance of the note, and acknowledged he was not an expert in handwriting and that the scratclVmay have been made a year after the note was drawn up and he not able to detect it; and there was some guess work in his opinion.

The jury found a verdict for appellee for four hundred and fifty-six dollars and for that amount a judgment was rendered by the court, and to reverse this judgment appellants brought this appeal.

The principal point raised by the numerous errors assigned is that the court erred in admitting the testimony of the witnesses Curtis and Busey.

We will confine our attention to this question, for if their testimony is held inadmissible the judgment must necessarily be reversed.

The testimony objected to is nothing more or less than an expression of the opinion of the witnesses as to when a single line or scratch was drawn with pen and ink through five simple printed words. As a rule, the opinions of witnesses are inadmissible as evidence. Witnesses are to testify to facts, and the jury are to draw the inferences and form the opinions which are to govern the case. City of Chicago v. McGiven, 78 Ill. 349.

But it is claimed by appellee that the two witnesses whose opinions were given as to when and by whom the scratch in the note was made were experts, and as such, on matters with reference to the genuineness of handwriting and on all subjects of science, skill or long experience in a particular trade or profession, their evidence was properly given to the jury, and he cites 1 Greenleaf on Evidence, Sec. 440; Linn v. Sigsbee, 67 Ill. 75; City of Chicago v. McGiven, supra; Pate v. The People, 3 Gilman, 644, and other cases.

In matters with reference to genuineness of handwriting and on all subjects of science, skill or long experience in a particular trade or profession, we can readily seethe propriety in many cases of permitting the opinions of witnesses to be given in evidence to the jury. But we see nothing in the case now before us which would sanction a departure from the general rule that opinions are not competent testimony.

The matter about which the witnesses were testifying was not in reference to the genuineness of handwriting, for appellants had conceded, and in fact had testified as witnesses, that they signed their names to the note in controversy, nor was it a question whether there had been alterations and erasures in the note, and other writing substituted which required experts to detect, as in the Pate case, for the erasure in this case was patent and could be seen By the jury as well as by the witnesses. Bor was the matter about which they were testifying a subject of science, skill or long experience in a particular trade or profession; but it was a simple question of fact, as to when the note had been altered by drawing the pen and ink line through the printed words “ if not paid at maturity,” which were originally in the blank note used, and as to when this alteration was made, we think the jury as competent to form a correct conclusion as were the witnesses who were sworn.

The only ground shown by the evidence on which these witnesses were permitted to testify by the court as experts, was that Curtis had been in the banking business fifteen years and it had been a part of his business to handle commercial paper and study genuineness of notes; had investigated notes and the handwriting of different parties; had used a magnifying glass to test handwriting, and had examined with a magnifying glass the handwriting in the note; and that Busey had been in the same business the same length of time, and handled a considerable number of notes, and had experience with handwriting.

It does not appear to us that such evidence brings these witnesses within the class of experts, or renders their opinions competent evidence to be given to the jury.

In the case of Linn v. Sigsbee, cited by appellee, it is held that opinions of witnesses are not competent as evidence when the inquiry is into a subject-matter the nature of which does not require any peculiar habits or study, or scientific knowledge to understand it. Now, in this case, the subject-matter of inquiry was as to when the pen and ink line was drawn through the printed words; “ if not paid at maturity.” Surely this subject-matter of inquiry required no peculiar habits or study, or scientific knowledge to understand it. Permitting these witnesses, therefore, to give their opinions as to when this alteration was made, was a fatal error which we think must reverse the judgment.

Jndgment reversed and cause remanded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    City of Chester v. George H. Wilson.
    Order for appeal.—Although a municipal corporation may prosecute an appeal without giving bond, yet there must be an order allowing an appeal in all cases.
    Appeal from the County Court of Randolph county; the Hon. George L. Riess, Judge, presiding.
    Opinion filed October 10, 1884.
    Mr. Ralph E. Sprigg, for appellant.
   Per Curiam.

There is nothing in the record to show that an appeal was prayed or allowed by the trial court. Although a municipal corporation may prosecute an appeal without giving bond, yet there must be an order allowing an appeal iu all cases. Chap. 110, Secs. 68 and 82. The record is improperly on file and the cause is stricken from the docket.


author: PEu OrnlI~r.

text:
    John M. Kingsbury v. Henry Perkins et al.
    FOECIBLE ENTRY AND DETAINER ACT.-An action can be brought under the sixth clauce of the second section of the Forcible Entry and Detainer Act, only against a "party to such judgment or decree." As no privity of estate is shown to exist between appellees and the judgment debtor, and even if that were or could be assumed, as it clods not appear that their possession is in subordination to the title or right of possession of appellant, the judgment is affirmed.
    AI'PE~L from the Circuit Court of Lawrence county; the lion. T. S. CASEY, Judge, presiding.
    Opinion filed October 10, 1884.
    Messr3. WJLSON & I{UTOIIINSON, for appellant.
   PEu OrnlI~r.

This action was brought by appellant against appellees under tile sixth clause of the second section of the Forcible Entry and Detainer Act, which gives such action where land has been sold under the judgment or decree of any court in this State, and the party to such judgment or decree, after the expiration of the time of redemption, refuses or neglects to surrender possession after demand in writing Lv the person entitled thereto.

Appellees were not parties to the judgment under which. the premises were so'd, and there is nothing in the record to show they went into possession under Foster A. Baird, who was one of' the defendants in the judgment, and as to whose p1'oper~y the land had been sold on execution. An action of I~rcible detainer, under this specification of said sixth clause, lies oniy against a "party to such judgment or decree." The parties to the judgment would inc'ude only those against whom it was recovered, and those who are bound by it. No privity of estate is shown to exist between the appellees and the judgment debtor; and even if that were or could be assumed it does not appear their possession is in subordination to the title or right of possession of appellant. Jackson v. Warren, 32 Ill. 331; Rice v. Brown, 77 Id. 549; Nicholson v. Walker, 4 Bradwell, 404; Preston v. Zahl, 4 Bradwell, 423. The judgment is affirmed.

Affirmed.

Casey, P. J., took no part in the decision of this case.


author: Casey, P. J.

text:
    John H. Yager et al. v. John Mersinger.
    Chattel mortgage oh stock of goods.—A chattel mortgage on a stock of goods, which authorizes the mortgagor to retain possession and carry on his business by buying and selling goods, is void as to creditors and purchasers of the mortgagor or his assignee.
    Appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed October 10, 1884.
    Mr. A. FTeüstadt and Mr. J. H. Yager, for appellants;
    that the chattel mortgage was fraudulent and void as to creditors, cited Davis v. Ransom, 18 Ill. 396; Read v. Wilson, 22 Ill. 377.

      Tlie assignee in a deed of assignment for the benefit of creditors is a purchaser for a valuable consideration: First Nat. Bk. v. Hughes, 10 Mo. 7; Gates v. Lebeaume, 19 Mo. 19; Evans v. Greenbow, 15 Gratt. 153; Exchange Bk. v. Knox, 19 Gratt. 739; Harrison v. Farmers’ Bk. 9 W. Va. 224; Hollester v. Loud, 2 Mich. 309; Thomas v. Clark, 65 Me. 296.
    Messrs. Kbome & Hadley, for appellees;
    that a mortgagee of chattels need not take possession of the property described in the mortgage, until default is made in the payment of the note last maturing, cited Barbour v. White, 37 Ill. 165; Cleaves v. Herbert, 61 Ill. 126; Arnold v. Stock, 81 Ill. 407; Summer v. McKee, 89 Ill. 127.
    An assignee is a mere volunteer and takes only the title held by the debtor. A mortgage, though fraudulent as to, creditors and subsequent purchasers for value, is good between-the parties. The grantor can not resist its enforcement on account of its fraudulent character, nor can he transfer to. another the power to do that which he can not do himsell: R. S. 1883, Ch. 10 a, § 11; Willis v. Henderson, 4 Scam. 13; Talcott v. Dudley, 4 Scam. 427; Strong v. Clawson, 5 Gilm. 346; Stow v. Yarwood, 20 Ill. 497; O’Hara v. Jones, 46 Ill. 288; Brownell v. Curtis, 10 Paige, 210; Storm v. Davenport, 1 Sandf. Ch. 135; Leach v, Kelsey, 7 Barb. 466; Haggerty v. Palmer, 6 Johns. Ch. 437; Van Husen v. Radcliff, 17 N. Y. 582; Van Kuerin v. McLaughlin, 6 C. E. Green, 163; Plusburg v. Kingon, 31 N. J. Eq. R. 619; Vandyke v. Christ, 7 Watts & Serg. 373; Flower v. Cornish, 25 Minn. 473; Mann v. Flower, 25 Minn. 500; Estabrook v. Messersmith, 18 Wis. 545; Hawks v. Pretzleff, 51 Wis. 160; Stewart v. Platt, 11 Otto (U. S.), 731; Hauselt v. Harrison, 15 Otto (U. S.), 401; Jones on Chattel Mortgages, § 363.
   Casey, P. J.

This was an action of trover begun in the Circuit Court of Madison county by appellee against appellants.

Upon a trial in that court a judgment was rendered in favor of the plaintiff for the sum of $3,557.

On the trial of the cause it appeared that one Charles H. .Pabst, a merchant doing business in Collinsville in said county, on the 16th day of November, 1883, made, acknowledged and delivered to appellee a chattel mortgage on his ■stock-of drygoods, then in store, and all those which may be exchanged in all and singular, and those which are replaced in their stead, in the ordinary pursuance of said merchandising ■business of like and singular nature and value, provided that the said stock of merchandise shall not be permitted to be reduced in value less than $5,000, marketable value, unless the money realized by such sales shall he applied toward the payment of said notes hereinafter described.

The mortgage was given to appellee to secure him from loss as the security of the said Pabst on two promissory notes ■one payable to Horeph Johnson, dated January 23, 1882, two years after date, for the sum of $2,600, and one payable to Isaac Cook, dated January 23, 1882, due two years after date, for the sum of $700, with 8 percent, interest until paid. The mortgage contained the usual agreement in case of default and also this provision: “ But in case the said goods shall be taken out of his possession by any other person or persons, by legal process or otherwise, or .if he shall sell or otherwise part with the same, except in the way of merchandising and replacing the same in like nature and value * * the mortgagee shall be entitled to the immediate possession of the same.” The mortgage was recorded on the 17th of November, 1873.

■ On the 28th of December, 1883, the mortgagor, Pabst, made an assignment undei the statute for the benefit of creditors, of the goods mentis, ed in the mortgage, to appellant, Yager, who on the same day took open and actual possession of the same.

The mortgagee paid the two notes upon which he was security as they became due. On the 31st day of January, Yager, the assignee, sold the goods in question to appellant, John T. Hoeltman, for the sum of $13,600. On the day after the sale a demand for the goods was made by the mortgagee, and this suit was brought on the 5th day of February, 1884.

The question is as to the legality and effect of the mortgage. If the mortgage was a nullity, then this action can not be sustained.

It will be remembered that the mortgage on its face provides that the mortgagor may sell and dispose of the goods in question in the ordinary course of business.

The statute provides that no mortgage of personal property shall be valid as against the rights and interests of any third person, unless possession thereof shall be delivered to and remain with the grantee, or the instrument shall provide for the possession of the property to remain with the grantor. In the case of Davis v. Ransom, 18 Ill. 396, the first case we have been able to find in the reports of the Supreme Court of this State in which this question arose, the mortgage was very like the one in the case at bar. It provided that the mortgagor might retain the possession of the goods and merchandise and sell them in the usual course of trade.

In that case the Supreme Court, after referring to the provisions of the statute which on this question were the same then as now, say: 11 It is plain that the statute contemplates -retaining of possession, by the mortgagor, of chattels capable of description and identification only, and the retaining of such possession for use and custody, and not for sale and disposition in the course of business and trade; the possession to remain with the mortgagor. A sale to a third person is prohibited.”

This instrument does not provide for possession remaining with the mortgagor within the meaning of the statute, but seeks under cover of a mortgage to enable the mortgagor, in defiance of his creditors, to retail goods according to the course ' O O of merchants, and is against the evident policy of the statute. The law gives no sanction to such arrangements and will hold them void as to creditors as tending to encourage and sustain frauds. In the case of Read v. Wilson, 22 Ill. 377, the mortgage provides that the mortgagors should have possession of the property mortgaged, and use and enjoy the same according to the course of their usual retail trade. Of this mortgage the court says: The clause allowing the mortgagor to retain possession is inadequate to the purpose, and so far as it was designed to effect that purpose it was fraudulent and void as to subsequent purchasers and creditors. The mortgage is treated the same as if it did not contain any clause authorizing the mortgagor to retain possession of the property.” Burrell v. Fergus et al., 51 Ill. 352; Grooseheart v. Johnson, 88 Ill. 58; Greenebanm v. Wheeler, 90 Ill. 276; Dunning et al. v. Mead, 90 Ill. 376.

In the latter case the court say, in substance, “ a chattel mortgage on a stock of goods which authorizes the mortgagor to retain possession and carry on his business by selling and buying goods, is void as to creditors and purchasers of the mortgagor.”

From these authorities we arrive at the conclusion that the mortgage in the case before us was absolutely void as to third persons” and that whether the sale was by the mortgagor himself or by his assignee, the purchaser obtained a good title, so far as respects the mortgage.

That it was void and not a lien or incumbrance as provided by the statute of which he was required to take notice.

For these reasons the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


author: Lacey, J.

text:
    Lafayette Reed v. F. G. Garfield.
    1. Execution—Joint defendants.—In this State, hy statute, the entire amount of a judgment may be made out of the lands and tenements of one of the defendants joined with others in the same execution and issued on a judgment against all. The judg-ment is virtually joint and several ag-ainst all and ea,uh of the defendants as to all classes of property.
    2. Execution against bead estate of survivob.—An execution issued and levied upon the real estate of a surviving defendant without reviving the judgment against the deceased defendant’s heirs and executors is valid.

      3. As TO names in . execution.—The fact that the execution contained the name of the deceased defendant (the execution and fee hill being issued more than two years since his death without reviving the judgment against his heirs and executors) would not render it void as to the survivor. In order that the execution may conform to the judgment it issues against all the defendants, although for all practical purposes, it amounts to no more than an execution against the survivors.
    Appeal from the Circuit Court of Kane county; the Hon. O. W. Upton, Judge, presiding.
    Opinion filed August 20, 1884.

      Mr. E. N. Botsfoed and Mr. W. E. B. Hunter, for appellant;
    cited 3 Blacks tone’s Cora. 418; 2 Bacon, Abridgment, Execution, 685.
    Where the execution issues and is levied upon the land of the surviving defendant, without reviving the judgment against the representatives of the deceased, it is good: Martin v. Branch Bank, 15 Ark. 596; Hardin v. McCause, 53 Mo. 255; Wade v. Watt, 41 Miss. 248.
    Mr. F. G. Gaefield, for appellee;
    that the execution issued was void, cited Borer on Judicial Sales, §§ 667, 734, 735, 748, 749; Stymets v. Brooks, 10 Wendell, 207; Hildreth v. Thompson, 16 Mass. 191; Massie v. Long, 2 Ham. 287; State v. Poole, 6 Ired. 288; George v. Latimer, 4 Yer. 22; Abercrombie v. Hull, 6 Ala. 657; Webber v. Kenny, 1 A. K. Marshall, 345; State v. Michaels, 8 Blackf. 436; Erwin v. Dundas, 4 Howard, 58; Brown v. Parker, 15 Ill. 307; Ransom v. Williams, 2 Wall. (U. S.) 315; Pickett v. Hartsock, 15 Ill. 279; Finch v. Martin, 19 Ill. 111; R. S. 1874, Ch. 77, § 39.
   Lacey, J.

At the February term of the Circuit Court of Kane county, 1884, the motion by appellee theretofore made to quash the execution, issued on the decree in favor of appellant against him and J. Wesley Morris, who was living at the time of its rendition, but deceased before the issuing of the execution and fee bill came up to be heard. It appears that at the time of such issuing Edgar and Eebecca Morris had been for more than two years executrix and executor of deceased’s estate; that the said J. W. Morris, at his death, was the owner of 280 acres of real estate; that the judgment had not been revived by scire facias against said executors, or the heirs of deceased, as required by the statute, and that the attorney of appellant was endeavoring to enforce the collection of the judgment against the property of the appellee. The execution was in due form against the goods and chattels of said appellee and said Morris. The decree was for $8.45, indorsed plaintiff’s costs, and $36.36, indorsed defendant’s costs, and was rendered jointly against appellant and Morris. The grounds of the motion by appellee were that the execution aud fee bill issued more than two years after the death of Morris without reviving the judgment against his heirs and executors by scire facias, or otherwise. On the 16th of August, 1883, the real estate of appellee was levied on by the sheriff, and sold by ,the sheriff on the 15th of ¡November, 1883, and certificate of purchase issued to appellant who was the purchaser. It was admitted that the decree was in full force at the time the execution and fee bill were issued, and that the latter were in due form, and that Morris at the date of issue was deceased. The court thereupon set aside the levy and quashed the said execution and fee bill, to which the appellant accepted.

It is conceded by appellant’s counsel that the execution, as against the heirs and estate of Morris,was void, and it could not be otherwise, for the decree was never revived, nor any notice under the statute given to the executors of the estate of Morris of the existence of the j udgment. But the lands of Morris were not levied on, and the heirs of Morris have no interest in this proceeding, and, in fact, are not complaining. Appellee alone makes this motion. The point is made that the execution, as to him, is good, and that he can not complain that the decree was not revived against the Morris heirs, or notice given to his executors.

At common law no writ of elegit, which was given under statute of 13 Ed. 1, and by virtue of which the sheriff seized and delivered a moiety of the lands of each of the defendants, until the debt was recovered out of the rents and profits, could issue against the survivor. It was impracticable, because the entire debt could not be made out of the real estate of one of two or more joint defendants. In such case the judgment was joint only as to real estate.

But at common law an execution could issue against the survivor or survivors of two or more defendants in the same judgment against the personal property of such survivor, for in case of personal property the entire amount of the judgment could be made out of personalty of any one of the defendants; as to the personal property the judgment was several as well as joint. This was the reason of the rule at common law that execution could not issue against the real estate of the survivor, and it would be a proper rule to apply in all jurisdictions where the common law doctrine prevailed. ■But in this State, according to our statute, the entire amount of the judgment may be made out of the lands and tenements of one of the defendants joined with others in the same execution and issued on a judgment against all. In this State, under our statute, there is no distinction in the power to take real estate and personal property. The judgment is virtually joint and several against all and each cf the defendants, as to all classes of property. "We are not aware that this exact question has ever been decided by the Supreme Court in this State, but we find a well considered case decided by the Supreme Court of Alabama where the same question arose, in which it was held that the execution was valid against the survivor without revival against his co-defendant (Martin v. Branch Bank of Decatur, 15 Ala. 592), and we fully approve of the reasoning in that case. In this State the reason of the rule as at common law against the issuing of an execution against the real estate of the survivor without revival, having failed, the rule itself must be abandoned, and by analogy to the rule at common law allowing an execution to issue against the personal estate of the survivor, the same should be allowed against the real as well as the personal estate of such survivor under our statute. See also Freeman on Executions, § 36. The cases of Woodward v. Bennett, 1 Cowan, 712, and Eranus Lessees v. Dundas, 4 Haw. 78, appear too in contradiction to Martin v. Branch Bank, supra; but in the former case the judgment upon which the execution was issued and the lands sold had been rendered against two defendants, one of whom was living at the time; but the lands sold belonged to the estate of the deceased. It will therefore be seen that according to the view we here express, the decision was proper, and the expressions in the opinion of the court, making the rule more general and applicable to a case like the one before us, should be regarded as dictum. Besides the cause was .brought by writ of error to that court from the Circuit Court for the Southern District of Alabama. Judge Nelson bases his conclusions and expressions on the case of Abercrombie v. Hall, 6 Ala. 657. But the Supreme Court of Alabama in the Martin-Branch Bank Case 15 Ala. 594, disapproves of the decision in Eran us Lessees v. Dundas, and states that the question had never before been made in the Supreme Court of Alabama. The cases of Brown v. Parker, 15 Ill. 307, Pickett v. Hartsock, 15 Ill. 279, and Finch v. Martin, 19 Ill. 111, do not seem to be in point; as in those cases the execution issued on j udgments where the sole defendant was deceased, and such wi ll be found to be the ease with nearly all the authorities cited by appellee’s counsel; and as to the few cases which hold otherwise it will be seen they are based generally on a mistaken notion of what had been decided in other cases. The fact that the execution contained the name of Morris, could not render it void as to appellee. That could only have] the effect to preserve the identity of the judgment and show upon what it was issued. Freeman, in his work on Executions, Sec. 36, says: “ In order that the execution may conform to the judgment it issues against all the defendants, although for all practical purposes it amounts to no more than an execution against the survivors.”

It could certainly do the appellee no harm that the name of Morris was contained in the execution. We are therefore of the opinion that the circuit, court erred in sustaining the motion, The judgment is therefore reversed and the cause remanded,

^Reversed and remande!.


text:
    Silas W. Gibson v. Augusta Gibson, Adm’x, etc.
    1. Delivery of note.—If a son gives a note to his father upon certain conditions, and in accordance therewith the event happens entitling the son to have the note given up to him, and the father delivers it to A to give to the former, and A puts it away among his papers, and never delivers it to the son, A should be treated as the trustee of the son, and bound by the terms of the trust, rather than agent of the father, and liable to have his authority revoked by him at any time before delivery of the note. As the instruction given assumed that A was the agent, and the above theory was not submitted to the jury by any instructions, the judgment is reversed.
    2. Evidence.—Where appellee, to prove that a note had never been given up by the father, who had since died, introduced witnesses who testified that deceased had told them in the absence of his son, appellant, that he would not give up the note, but appellant must pay it. Held, that the statements of deceased, out ol' the presence and hearing of appellant against him, were hearsay and not proper, while proper as against appellee.
    Appeal from the Circuit Court of Grundy county; the lion. J. McBoberts, Judge, presiding.
    Opinion filed August 20, 1884.
    Mr. S. 0. Stough, for appellant;
    that the declaration of an intention to give, followed by delivery of the subject-matter of the intended gift to a bailee for the benefit of the donee, constitutes a perfected gift, cited Gardner v. Merrit, 32 Md. 78; Walter v. Ford, 74 Mo. 195; Coutant v. Schuyler, 1 Binney, 316; Wells v. Tucker, 3 Binney, 366; Kilpin v. Lamb, 1 Mylne & Keene, 520.
    Messrs. Doom, Wing & Carter, for appellee.
   Lacey, J.

This was a suit brought by appellee as administrator of B. Gibson, deceased, in assm'npsit based on a promissory note given to the deceased by his son, the appellant, for $200, dated Bov. 15, 1874. The defense set up to the note by special plea was, that the appellant at the request of the deceased in his lifetime went into and took possession of a certain hotel in Gardner, called the Gardner House, and repaired and cleaned the hotel, and from thence until March 24, 1876, managed, kept and ran the hotel as a public inn, in doing which he used the amount of money mentioned in the note and lost and spent another large amount of money of his own, to wdt, §250.

That on the 24th of March, 1876, deceased promised and agreed with appellant to cancel and satisfy the note. There was also the general issue. The evidence tends to show that at the time the note was executed, the deceased agreed to deliver the note to appellant in case he did not make enough out of the hotel to pay it; that the deceased was anxious to accommodate the appellee to get some one to take the hotel. That she was then a widow and afterward married the deceased. The appellant did not succeed in the hotel business, and instead of making money he lost what he put into it. The evidence goes strong to show that in consequence of this arrangement and agreement with appellant, the deceased, in his lifetime, did give the note up to Orin, a son of deceased and brother of appellant, to be by him given up to appellant.

That Orin neglected to give up the note but put it among his own papers in the bureau drawer where he kept them, he and his father at the time living in the same house, and that he never saw the note afterward until produced on the trial.

That afterward the note was found auiong the papers of deceased at his death and came into the hands of the appellee.

The verdict and judgment were for appellee. To contradict the claim and proof made by appellant the court, against his objection, permitted the appellee to introduce the evidence of H. C. Gifford and Peter Dolan, to show that the deceased, Hubert Gibson, in his lifetime had made statements in each of their hearing, and not in the presence or hearing of appellant to the effect that he would not give up the note to appellant, but that he must pay it; that he was not grateful for anything deceased had given him and he would not give him the note. This was error. The statements of the deceased out of the presence and hearing of appellant against him were hearsay and not proper, while proper as against the appellee.

The theory of the appellee was that in the matter of the delivery of the note to Orin, to be given up to appellant, he was the agent of deceased, who could therefore revoke such agency any time before delivery, at his pleasure, and that he did so. This theory was assumed in the instructions given to the jury. Upon the whole evidence, and especially of that bearing upon and tending to show the conditions upon which the note was given, we are inclined to hold that in case the jury should find from a preponderance of the evidence that the note was given upon the conditions claimed, and that in accordance therewith the event happened entitling the appellant to have the note given up to him, that in such case Orin should be treated as tiie trustee of the former and bound by the terms of the trust, rather than the agent of the deceased, and liable to have his authority revoked by him at any time before delivery of the note. That delivery to Orin was delivery to the appellant. That being for the latter’s benefit, his acceptance should be presumed, and being an execution of a verbal understanding based upon a condition, the delivery to Orin was binding on deceased at the time of delivery. This view of the evidence ought to have been submitted to the jury by the instructions as well as the other theory, that appellant’s claims of facts were not true.

For the errors in admitting the improper evidence of statements of deceased against appellant and the assumption in the instructions above named, the judgment of the court is reversed and the cause remanded.

Beversed and remanded.


author: Pleasants, P. J.

text:
    William J. Stewart v. The People, etc.
    City marshal executing civil process.—-Where an alleged assault grew out of the attempt of a city marshal within the corporate limits to execute civil process directed to him as marshal by a justice of the peace residing in the city, and the only question upon the record was as to the authority of a city marshal to execute such process. Held, that Section 73, Chapter 24, of the Revised Statutes, confers such power.
    Error to the Circuit Court of Will county; the Hon. J. McRoberts, Judge, presiding.
    Opinion filed August 20, 1884.
    Messrs. Hill & Dibell, for plaintiff in error.
    Mr. C. W. Brown, and Messrs. Haley & O’Donnell, for defendant in error.
   Pleasants, P. J.

Braidwood was duly organized as a city under the provisions of Chapter 24 of the Revised Statutes, and plaintiff in error duly elected and qualified as its marshal.

On the 23d of June, 1883, he was arrested on complaint of Samuel Jacobs and taken before a justice of the peace of Will county, by whom he was fined $40 for an alleged assault and battery. On appeal by him and trial da novo in the circuit court the fine was reduced to $20, and he brings the record here for review upon a writ of error.

The alleged assault grew out of his attempt, within the corporate limits, to execute civil process directed to him, as marshal, by a justice of the peace residing in the city. It is conceded that if he had authority to execute such process he was justified, and according to the certificate of the circuit judge and stipulation of counsel that is the only question upon the record.

Section 73 of the act referred to, so far as affects this question, is as follows: “ The city council may, in its discretion, from time to time, by ordinance passed by a vote of two thirds of all the aldermen elected, provide for the election by the legal voters of the city, or the appointment by the mayor, with the approval of the city council, of a city collector, a city marshal * * * and such other officers as may by said council be deemed necessary or expedient. * * * The city marshal shall perform such duties as shall be prescribed by the city council for the preservation of the public peace, and the observance and enforcement of the ordinances and laws; he shall possess the power and authority of a constable at common law, and under the statutes of this State.”

Section 75 prescribes the oath to be taken by the marshal which is, among other things, that he “will faithfully discharge the duties of the office”; and also the bond to be executed, “with security to be approved by the city council, * payable to the city * * * in such penal sum as may by resolution or ordinance be directed, conditioned for the faithful performance of the duties of the office and the payment of all moneys received by such officer, according to law and the ordinances of said city.”

We apprehend that the following propositions are too clear to require argument, viz.: That the legislature has power to prescribe the qualifications, duties and powers of municipal officers, or to delegate that power in whole or part to the municipality; that noneare required, enjoined or conferred except those so prescribed; that it may confer the same or like powers upon officers of different municipalities, making the offices more or less similar and yet not the same; that it may designate the powers conferred upon a given officer as well by general description or by reference to know powers of other officers as by specific description; and that a constable has power and authority, under the statutes of this State, to execute civil process.

In the light of these propositions we see no ground for doubt or construction. The question before us is not whether a city marshal is a constable, nor whether the oath and bond required of him as marshal furnish a guaranty and protection to all who may be concerned in the execution of "civil process equal to those furnished by the oath and bond required of a constable, nor whether thejr ought, in order to clothe him as them with power to execute it; but simply whether the law does clothe him as marshal with that power. As we have seen, it declares, first, that “he shall perform such duties as shall be prescribed by the city council for the * * * enforcement of the ordinances and laws.” Here the term “laws” seems to be used in contradistinction to ordinances, to signify something more and different; and perhaps under this clause the city council might prescribe the duty of executing civil process. Whether in this case it was or was not so prescribed we are not informed by the record. But without regard to what the council may have done or can do, it further declares-that “he shall possess the power and authority of a constable at common law, and under the statutes of this State.”

It is of no avail to show that at common law a petty constable did not possess the power in question. Since a constable does possess it under the statutes of this State, it appears to us to be by this provision given to a marshal in language as plain as any we could employ to express it. And there the law leaves it, except that by another provision it includes marshals among other officers who are declared to be conservators of the peace and invested with certain specified powers, of which some are not possessed by constables as such. (§ 83.) But it nowhere limits the powers given and authorized to be given by § 73, nor requires of him any oath, bond or other qualification except those required of him as city marshal. There is no need of any other. He is not a constable. It is in the course of his duty as marshal that he exercises this power. His oath and bond bind him to the faithful performance of his duty in the exercise of it as of any other, and afford security therefor. Those of a constable do no more.

The judgment of the circuit court is reversed.

Judgment reversed.


text:
    Phillip Crouse v. Frederick Whitelake.
    Piiepondeeance op evidenoe.—Where the testimony of plaintiff as to the terms of a contract was expressly contradicted by the defendant, and the plaintiff was unsupported by any other witness, and the defendant was sustained by seven different witnesses, and the verdict of the jury was for the plaintiff. Held, that it was error for the court below to overrule a motion for a new trial.
    Appeal from the Circuit Court of McLean county; the Hon. it. M. Benjamin, Judge, presiding.
    Opinion filed October 3, 1884.
    Mr. J. S. Neville, for appellant.
    Mr. W. E. Capen, for appellee.
   Davis, J.

This action was brought by appellee to recover for three years’ work claimed to have been done by him for appellant, under a contract that appellant was to pay him fifteen dollars a month for his wages and board him.

The jury found a verdict for appellee of $165. A motion for a new trial was made by appellant and overruled by the court, and thereupon a judgment was rendered for appellee for the amount of the verdict.

The only point in the case is, whether the court erred in refusing a new trial.

Appellee testified to the contract as stated above, that appellant was to pay him fifteen dollars a month and his board for his work. Appellee was unsupported by any other witness as to the contract between the parties.

Appellant testified that he never agreed to pay appellee fifteen dollars a month for his work, but the contract was that appellee should live with him as long as he lived, and appellant should give him his board, clothes and tobacco and take care of him when he was sick.

Appellant was sustained by seven different witnesses who each testified that in conversations with appellee he stated he was working for his board and clothes and tobacco, and was to be taken care of when sick.

In Lincoln v. Stowell, 62 Ill. 84, it was held, that to entitle plaintiff to recover he must establish his right by a preponderance of testimony. When the testimony of the plaintiff is expressly contradicted by that of the defendant and defendant is corroborated by two other witnesses, a verdict for the plaintiff is not sustained by the evidence and it is error to refuse a new trial.

We think the testimony in this case so strongly preponderated in favor of appellant that the court should have granted a new trial, and the refusal to do so was error for-which the judgment must be reversed and the cause be remanded.

Judgment reversed.


author: McCulloch, J. Per Curiam.

text:
    Highway Commissioners, etc., v. John M. Hamilton et al.
    Municipal indebtedness—Power op iitg-hway commissioners.— The claim sued, for in this case was in litigation in 13 Bradwell, 358. Appellees now seek to reach the funds provided for keeping the roads and bridges in repair for the year in question by bringing a. suit directly against the commissioners of highways of the town. Held, that the reasoning in the former case applies with all its force to this.
    Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed October 3, 1884.
    Mr. J. L. Bay, for appellants.

      Mr. Thomas J. Smith, for appellees.
   McCulloch, J.

The claim sued for in this case was in litigation in the case of Town ot‘ Harwood v. Hamilton et al., 13 Bradwell, 358. We there decided that the commissioners of ¡highways had no power to create the debt sued for in such manner as to make the same payable out of any other funds than the taxes levied for that year, “ for the commissioners having been provided by law with the power to supply themselves by taxation with the funds necessary to the discharge of their duty in keeping the highways and bridges in repair, appellees must look to that source alone for the payment of their claim. The statute has given them no power to create a debt or liability for which it has not also given them authority to provide the means of payment.” It is now sought to reach the funds provided for keeping the roads and bridges in repair for the year in question by bringing a suit directly against the commissioners of highways of the town. Ho question was made in the former case as to the proper parties to sue, and our decision was based upon the inability of the commissioners of highways to contract the debt in question so as to make the same recoverable in that form of action. The reasoning in that case applies with ail its force in this. Our position then taken is strengthened by the cases of Prince v. City of Quincy, 105 Ill. 138; Same v. Same, Id. 215. We regard the former case conclusive of the principle involved in this one. The judgment of the circuit court will therefore be reversed and the cause remanded.

Judgment reversed and remanded.

OPINION DENTING PETITION EOR REHEARING.

Per Curiam.

Petitioner is mistaken in supposing that what we said in the case of the Town of Harwood v. Hamilton et al., was intended to intimate that he could recover against the commissioners of highways upon the state of facts then before the court. The facts in this case as to the cause of action, are identical with the facts of that case, and ive are of the opinion that they do not authorize a recovery against either the town or the commissioners. They create no such indebtedness as render either liable for the payment.

Petition for rehearing denied.


author: Wilson, P. J.

text:
    Ernst Fanter by etc., v. Emery Clark et al.

      1. Negligence of EMPLOYE.-r-Appellant, a boy of fourteen years, was employed on a planing machine. At the time of his employment he was instructed to do whatever the feeder of the machine directed. Appellant received the lumber as it came through the machine.* A “sliver” becoming lodged in the machine, the feeder who had control of the machine, without stopping the machine, ordered appellant to take it out. He failed in the attempt and informed the feeder that he could not get it out; the feeder then peremptorily ordered him to pull the “sliver” out, in attempting to do which his hand was cut off. The machine could have been easily stopped by the feeder, and the feeders of other similar machines were in the habit of stopping them when removing such obstructions. Held, that under the circumstances and in view of appellant’s age, a want of ordinary care is not imputable to him; that the feeder was guilty of gross negligence; that the doctrine of respondeat superior applies.
    2. Master and servant—Injury by governing servant.—The mere fact that one of a number of servants, who are in the habit of working together in the same line of employment for a common master, has power to control and direct the actions of the others with respect to such employment, will not, of itself, render the master liable for the negligence of the governing servant resulting in injury to one of the others. 108 Ill. 288.
    3. Same—Master’s liability.—If the negligence complained bf consists of some act done or omitted by one having such authority, which relates to his duties as co-laborer with those under his control, and which might j ust as readily have happened with one of them having no such authority, the common master will not be liable. But when the negligent act complained of arises out of and is the direct result of the exercise of the authority conferred upon him by the master over his co-laborers, the master will be liable.
    4. Power to employ and discharge servants.—The fact that the governing servant had no power to employ and discharge hands furnishes no test as to the status of the employe. It is a circumstance proper to be considered like any other relevant evidence in passing upon the question, but is by no means determinative.
    Error to the Circuit Court of Cook county; the Hon. John Gr. Borers, Judge, presiding.
    Opinion filed November 11, 1884.
    Tills suit was brought in the Circuit Court of Cook county by the plaintiff in error against the defendants in error, to recover damages for the loss of one of his hands while working at a planing mill in the defendants’ furniture manufactory. The declaration avers in substance that the plaintiff, who was fourteen years old, was employed by the defendants to work in their manufactory, in which was a planing mill driven by steam; that by the terms of his employment, it was the duty of the plaintiff to perform such work as might properly be required of a boy of his age, and that it was the duty of the defendants to require of the plaintiff only such work as might reasonably and properly be required of him, with proper regard for his personal safety, etc.; that in disregard and violation of their duty, the defendants carelessly, negligently aud imprope2’ly, and without due rega2'd for the plaintiff’s safety, directed and requh*ed the plaintiff to remove a splinter which obstructed the use of the planing machine, which was running at fall speed; that the work of removing said splinter involved great danger and liability to accident to any one attempting to remove the same, and especially to one of no greater age and experience than the plaintiff; that while the plaintiff, being ignorant of the danger-, in obedience to the direction and requirement of tire defendants, and in the discharge of what he supposed was his duty, was in the act of removing said splinter, and was acting with all due care, etc., Ills right hand was suddenly jerked and drawn into contact with revolving knives, which were a part of said machine, and was cut off, etc.
    The case was tried by a jury upon pleas of not guilty. At the conclusion of the plaintiff’s evidence, the court, on motion of the defendants, directed the jury to render a verdict of not guilty, which they did. Judgment was rendered upon the verdict, and the plaintiff brought the case here by writ of error. The facts sufficiently appear in the opinion of the court.
    Mr. John McGaefey and Messrs. K-ubeits & Ames, for plaintiff in error;
    that the theory of respondeat sxoperior applies, cited R. R. Co. v. Fort, 17 Wallace, 553; Mann v. Oriental Paint Works, 11 R. I. 152; N. & D. R. R. Co. v. Jones, 9 Heiskell, 27; L. & N. R. R. Co. v. Bowler, 9 Heiskell, 866; Grizzle v. Frost, 3 F. & F. 622; C. & N. W. Ry. Co. v. Bayfield, 37 Mich. 205; L. M. R. R. Co. v. Stevens, 20 Ohio, 415; C. & R. R. Co. v. Keary, 3 Ohio St. 201; Berea Stone Co. v. Kraft, 31 Ohio St. 287; C. & N. W. Ry. Co. v. Jackson, 55 Ill. 492; Lalor v. C. B. & Q. R. R. Co., 52 Ill. 401; C. & N. W. Ry. Co. v. Moranda, 93 Ill. 307; C. & A. R. R. Co. v. May, 108 Ill. 288.
    Messrs. Flower, Bemt& Gregory, for defendants in error;
    cited C. & N. W. Ry. Co. v. Moranda, 93 Ill. 302; Cooley on Torts, 562, 563; Wood’s Master and Servant, § 438, p. 863; Malone v. Hathaway, 64 N. Y. 5-9; Flike v. B. & A. Ry. Co., 53 N. Y. 549; Corcoran v. Holbrook, 59 N. Y. 517; 2 Thompson on Negligence, 1028, 1030; Gartland v. T. W. & W. Ry. Co., 67 Ill. 498.
   Wilson, P. J.

It is unnecessary to review the evidence in detail, it being sufficient to say that it tended to prove all the material allegations of the plaintiff’s declaration, and hence if our view of the law applicable to the facts which the evidence tended to prove be correct, the court below erred in directing the jury to find for the defendants.

It appears that the plaintiff was employed by the defendants to work on a planing machine in the defendants’ furniture manufactory, and at the time of his being employed he was instructed to do whatever the person who fed the machine directed him to do. The machine was driven by steam power, and consisted of rapidly revolving knives, which dressed the lumber as it passed under them between rollers. The feeder who controlled the machine stood in front and passed the lumber through, while the plaintiff stood in the rear to receive it as it came through after having passed under the knives. On the day of the occurrence a sliver or chip became lodged between the irons of the machine near the revolving knives in such a way as to obstruct the operation of the machine. The feeder, without stopping the machine, directed the plaintiff to take the sliver out, which in obedience to the order he attempted to do, but did not succeed, and he informed the feeder that he could not get it out, whereupon the feeder came around to where the plaintiff was and ordered him peremptorily to pull the sliver out, in attempting to do which the plaintiff’s hand was caught by the knives and cut off. The machine could have been easily stopped by merely casting off the belt by which it was driven onto a loose wheel or pulley. It further appeared that like obstructions to that which the plaintiff was required to remove were of frequent occurrence, and that the feeders of other similar machines in the same establishment were in the habit of stopping the machines by throwing off the belt whenever it became necessary to remove one of these obstructions. The knives were so covered as not to be seen when the machine was running, thus rendering it exceedingly hazardous to insert the hands near the knives when revolving. The plaintiff had worked in a planing mill before, but its machines were larger and differently constructed from the machine in question.

The act of the feeder of the machine in coercing a boy of fourteen to attempt the removal of an obstruction in the manner described, without stopping the machine, was one of gross carelessness, not to say criminal negligence, and it resulted in making the plaintiff a cripple for life. Upon the facts, then, as shown by the plaintiff’s evidence, we are of opinion, (1) that under the circumstances, in view of the plaintiff’s age, and the positive order of the feeder to remove the obstruction, no want of ordinary care is imputable to the plaintiff; (2) that the feeder was guilty of gross negligence. It remains, therefore, only to consider the legal aspect of the case.

The theory of the counsel for the defendant, and which seems to have been adopted by the court below, is that the feeder of the machine and the plaintiff stood in the relation of fellow servants of a common master, in the same line of employment, and that consequently the doctrine of respondeat superior does not apply. Fortunately for us the difficulties that have heretofore beset attempts to extract from the numerous adjudicated cases definite and settled rules and principles applicable to cases of this nature, have been largely diminished by a recent decision of our Supreme Court in the case of Chicago & Alton R. R. Co. v. May, 108 Ill. 288. The present case, in all its essential features, is entirely similar to that, and we need, therefore, to do little more than refer to the principles enunciated by Mr. Justice Multey, who wrote the majority opinion in that case. He says: “The true rule on the subject, as we understand it, is this: The mere fact that one of a number of servants who are in the habit of working together in the same line of employment, for a common master, lias power to control and direct the actions of the others with respect to such employment, will not of itself render the master liable for the negligence of the governing servant, resulting in an injury to one of the others, without regard to other circumstances. On the other hand the mere fact that the servant exercising such authority, sometimes or generally labors with the others as a common hand, will not of itself exonerate the master from liability for the former’s negligence. Every case, in this respect, must depend upon its own circumstances. If the negligence complained of consists of some act done or omitted by one having such authority, which relates to his duties as co-laborer with those under his control, and which might just as readily happen with one of them having no such authority, the common master will not be liable. For instance, if the section boss of a railway company, while working with his squad of men on the company’s road, should negligently strike or injure one of them, causing his death, the company would not be liable; but when the negligent act complained of arises out of, and is the direct result of the exercise of the authority conferred upon him by the master over his co-laborers, the master will be liable. In such a case he is not a fellow servant of those under his charge, with respect to such power, for no one but himself, in the case supposed, is clothed with authority to command the others. "x" * * In exercising this power he does not stand upon the same plane with those under his control. His position is one of superiority. When he gives an order within the scope of his authority, if not manifestly unreasonable, those under his charge are bound to obey under peril of losing their situations, and such commands are, in contemplation of law, the commands of the company, and hence it is held responsible for the consequences.”

These views are applicable to, and are decisive of, the present case. The plaintiff was placed by the defendants under the immediate control and direction of the person who had charge of the running of the planing machine. While they were fellow servants of a common master, they did not stand upon an equal footing. The feeder was, by express appointment of the defendants, made the superior of the two. As to the control and direction of the plaintiff, he was the alter ego of the defendants. His orders were their orders, and it is immaterial whether he had authority over one man or a gang of men. Some stress was laid by the defendants’ counsel upon the fact that the feeder had no power to employ and discharge hands. That circumstance furnishes no test as to the status of an employe. It is a circumstance proper to be considered, like any other relevant evidence, in passing upon the question, but is by no means determinative. Here the proof of the feeder’s authority was express, and did not need corroborative evidence.

It is to be observed that the plaintiff’s injury was not the result of a mere careless act done by the feeder in performing his work as a co-laborer or fellow servant, but it was the direct result of a negligent and improper exercise of his power and authority over the plaintiff, in giving an order which no one, in the exercise of ordinary prudence, would have given.

Being of opinion that the plaintiff’s evidence made a prima, faci& case, we think the court below erred in directing the jury to find for the defendants.

The judgment is reversed and the cause remanded for a new trial.

¡Reversed and remanded.


author: Bailey, J.

text:
    Lake Shore & Michigan Southern Ry. Co. v. Rollin P. Blanchard, Adm’r, etc.
    1. Walkin® on railroad track.—Where a party chooses for his pathway the main track of a railway upon which engines and cars will approach him only from behind, it becomes his duty to keep an outlook for clanger in that direction. When a party thus places himself knowingly and voluntarily in a place of great danger, ordinary prudence requires of him a vigilance correspondingly great.
    2. Trespasser—Deoree op care.—A party trespassing1 upon grounds where he has no right to be, is held to the exercise of a higher degree of care and vigilance for his own safety than would be exacted of him, if he were there in the exercise of a legal light.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed January 6, 1885.
    IVIr. Cybus D. Boys and Mr. Pliny B. Smith, for appellant;
    that a person using the private right of way of a railroad company for his own convenience, is a trespasser, and can not recover for an injury occurring through the fault of a railroad company while so there, unless the injury be willfully inflicted, cited L. S. & M. S. Ry. Co. v. Hart, 87 Ill. 534; Garland v. C. & N. W. Ry. Co., 8 Bradwell, 576; G. & C. U. R. R. Co. v. Jacobs, 20 Ill. 478; I. C. R. R. Co. v. Godfrey, 71 Ill. 500; I. C. R. R. Co. v. Hetherington, 83 Ill. 510.
    Messrs. Dent, Black & Cratty Bros., for appellee.
   Bailey, J.

This was an action on the ease brought by Boll in P. Blanchard,- administrator of the estate of John W. Biordan, deceased, against the Lake Shore and Michigan Southern Bailway Company, to recover damages for the death -of the plaintiff’s intestate caused, as is alleged, by the negligence of the servants of the defendant. Biordan, a lad sixteen years of age, was, at the time of his death, working in the employ of the Chicago and Northwestern Bailroad Company, in its freight house or transfer depot, on the west side of Jefferson street, between Sixteenth and Meager streets, Chicago. This freight house stands about thirty or forty feet south of Meager street, and runs from Jefferson street west, about five hundred feet, toward Union street, the next street west. South of this freight house, in the same block, running along Sixteenth street the entire distance from Jefferson to Union street, is a freight house of the Chicago, Burlington and Quincy Bailroad Company, and another freight house of that company stands east of Jefferson street. Bun ning west from the freight house of the Chicago and Northwestern Bailway Company are three tracks, one extending through the center and one along either side of the building, and south of these tracks and nearly parallel therewith, are a large number of tracks of the Chicago, Burlington and Quincy Bailroad Company, there being in all about thirty tracks at the freight houses, of which fifteen run west across Union street, and thirteen across Halsfced street, the street next west of Union. Two of the Chicago, Burlington and Quincy tracks are main tracks, one being used exclusively for trains running east and the other for trains running west.

The deceased, at the time of his death, was living with liis parents on Seventeenth street, the next street south of Sixteenth, and a block and a half west of Halsted street. On that day he was working near the west end of the Chicago and Northwestern freight house, and when, at twelve o’clock, the signal for dinner was given, he, with other workmen, went out of the west end of the freight house and walked west along the Chicago and Northwestern tracks to a point about midway between Union and Halsted streets. There he turned south, crossing a number of intervening tracks, until he reached the Chicago, Burlington and Quincy main track, used for trains running west. He then turned west, and proceeded upon and along the track until he reached a point about two feet east of the west line of Halsted street, where he was overtaken by an engine running west, and in stantly killed.

The day appears to have been a cold one, with the wind blowing quite strongly from the west. The deceased had on at the time a cap drawn down over his ears, and wras walking rapidly, and it does not appear that he listened or looked behind him for an approaching engine, although there was nothing to obstruct his vision for at least a quarter of a mile along the track. He had been working in the same freight house for three months previously, and seems to have been accustomed to make his way home over substantially the same route, and so must be presumed to have been familiar with the dangers by which it was surrounded. As to all these facts there appears to be no substantial conflict in the evidence.

-The conclusion seems to be inevitable, that at and immediately previous to his death, the deceased was not in the exercise of ordinary care. He is shown to have been a lad of more than average activity and intelligence, and in full possession of his senses of sight and hearing. Waiving the question of his negligence in selecting a dangerous route when a safe one along a public street was open to him, it can not be doubted that, when he chose for his pathway to his home the main track of a railway, and that track, too, the one upon which engines and cars would approach him only from behind, it became his duty, in obedience to one of the plainest dictates of ordinary prudence, to keep an outlook for danger in that direction. He placed himself knowingly and voluntarily in a place of great danger, and ordinary prudence required of him a vigilance correspondingly great.

It has been held, in numerous cases in this and other States, that it is the duty of a person about to cross a railway track to look and listen to ascertain whether engines or trains are approaching, and if this is so, it is a fortiori his duty to look and listen when he undertakes to walk upon and along a track, thus making use of it as a pathway from one place to another where, as in this case, it appears that engines and trains are very frequently passing.

It should also be noticed, as the evidence seems clearly to show, that the deceased was on said track without right, and so was a mere trespasser. The track where he was walking does not appear to have been, in any just sense, a part of the “ depot grounds ” of either of the railroad companies owning the tracks. It was separated from the freight houses by Union street, and was almost a block west of that street, and so was not a place where the public had an implied right to pass and repass in going to and from said freight houses. The deceased, while trespassing upon grounds where he had no right to be, was manifestly held to the exercise of a higher degree of care and vigilance for his own safety than would have been exacted of him if he had been there in the exercise of a legal right.

The rule seems to be well established that, to authorize a recovery on the ground of mere negligence, as distinguished from a willful tort of the defendant, it must appear that the party injured exercised ordinary care, such as a reasonably prudent person will adopt for the security of his person or propert)r, to avoid the injury complained of. C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512. That the deceased was not in the exercise of this degree of care seems to be the only inference legitimately and fairly arising from the evidence.

In Austin v. C. R. I. & P. R. R. Co., 91 Ill. 35, it is said: This court has repeatedly held, that to walk upon the track of a railroad, without looking in both directions to discover approaching engines or trains, when the exercise of such precautions would discover either the one or the other, is such negligence as will preclude a recovery, unless the injury be willfully or wantonly inflicted by the defendant.” The numerous cases cited by the learned justice who delivered the opinion of the court in that case, renders the further citation of authorities on this point unnecessary here.

There is no evidence in the record from which the jury could, in our opinion, legitimately find that, the deceased was willfully, intentionally or wantonly killed, and it follows that the verdict of the jury, finding the defendant guilty, is unsupported by the evidence. The only evidence given by the plaintiff tending to identify the engine by which the deceased was killed as an engine belonging to the defendant, is that of two or three witnesses, who noticed on it the letters “ L S. & M. S.,” as it passed. The plaintiff also gave evidence tending to show that the engine was running at the rate of ten miles an hour or perhaps a little more, and that no bell was rung or whistle sounded before reaching the place where the deceased was walking; that after the deceased was killed, the engine apparently slowed up a little, and then went on without stopping. This is all that was shown, as none of the plaintiff’s witnesses seem to have noticed the employes themselves who had charge of the engine, or are able to give any evidence as to" what they were doing.

On the part of the defendant it was shown that, on the day and at about the time in question, the employes of the defendant ran a train onto a Chicago, Burlington and Quincy sidetrack, east of the place of the accident, and after detaching their engine from the train, ran it back west over the track where the deceased was killed; that a bell was kept ringing all the time the engine was in motion, and that the engine was not running more than at the rate of five miles an hour; that the employes in charge of the engine saw no one on the track, and were not aware that any person had been injured until some time after they reached their destination. It will thus he seen that, as the defendant’s witnesses did not see the deceased, and as it is not definitely shown that no other engine belonging to the defendant passed west over said track at about the same time, it can not be said with entire certainty that the engine of which the defendant’s witnesses speak, is the one by which the deceased was killed. If it was not the same, the verdict rests solely upon the evidence of the plaintiff’s witnesses, and while their evidence doubtless tends to show negligence, and perhaps gross negligence, it does not show that the killing of the deceased was willful or intentional, or that the defendant’s servants were guilty of such wanton misconduct resulting in his death, as would, in law, be tantamount to a willful tort. If, on the other hand, the engine spoken of by the defendant’s witnesses was the one by which the deceased was killed, then their evidence not only contradicts and repels any imputation of an intentional wrong, but also tends, in some measure, to rebut the charge of negligence.

Other questions in the case have been elaborately argued by counsel, but as what we have said fully disposes of the case on this appeal, we do not deem it our duty to consider them, but for the reason that the verdict is unsupported by the evidence, the judgment will be reversed and the cause remanded.

Judgment reversed.


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    Chicago & Western Indiana R. R. Co. v. Chicago, St. Louis & Pittsburgh R. R. Co. et al.
    1. Easement acquired by railroad in street.—Where a railroad company lays its tracks and builds its railroad on a certain street after having obtained permission and authority so to do from the town, the railroad company acquires a perpetual easement in the street. Such easement consists in the right to maintain, use and enjoy its railroad free from hindrance or molestation save such as is incident to the proper and ordinary use of the street by the public, aud will be as much protected from unlawful invasion as any other property right.
    2. Construction of railroad track across another—Injunction. —The construction of a railroad track across a street upon which another railroad has its track, though built on the same grade, is a taking of the latter’s property for public use within the meaning of the constitution, and the latter is entitled to have the construction enjoined until compensation is made.
    3. Damages.—In assessing the damages in such a case the total obstruction of the road while such tracks are being laid, and the permanent interference, by means of the crossing, with the business transactions over the road, would be proper elements to be considered.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Opinion filed November 11, 1884.
    This was a bill in chancery, brought by the Chicago and Western Indiana Railroad Company to restrain the Chicago, 8t. Louis and Pittsburgh Railroad Company from constructing its tracks across the tracks of the complainant in Wallace street, one of the public streets of the town of Lake, in Cook county. A temporary injunction having been awarded, the defendant appeared and filed its answer, and thereupon moved for a dissolution of the injunction, which motion the court sustained, and at the same time entered a decree “ that said bill of complaint be dismissed for want of equity appearing in the bill.” Prom this decree the complainant has appealed to this court.
    The hill alleges that the complainant is the owner, and is operating, by itself and lessees, a railroad from its depot in the city of Chicago to the town of Dolton, in Cook county; that by the authority of the town of Lake it has constructed two tracks upon Wallace street, in said town, from 49th street south more than five miles; that such tracks are its main tracks, and have been in use for three years; that the business over said tracks is very great, being the entire freight and passenger business of five trunk lines of railroad, and that more than one hundred trains pass over said tracks each day.
    It further alleges the defendant is an Illinois corporation, authorized to construct and operate a railroad from the Indiana .line to Chicago, and that it now owns and is operating such railroad; that it is constructing certain tracks in .the town of Lake, from its main line to that of the Pittsburgh and Ft. Wayne Railroad Company, but that such tracks do not form a part of its railroad into Chicago; and that it has never received and does not possess any legal authority, by its charter, to construct the same; that if said defendant has been authorized by ordinance, of the town of Lake to lay its said tracks over and across streets in said town, such authority is void because the defendant has not received from the State power to lay or operate such tracks, they not being a part of its tracks into Chicago, but designed merely to connect its tracks with those of other companies; that the defendant has laid said tracks up to the track of the complainant on Wallace street, but has not commenced the proper condemnation proceedings required by law, to have the damages that will be sustained by the complainant by reason of the construction of said tracks across those of the complainant ascertained, and to obtain the right to construct its tracks over those of the complainant by payment of such damages to the complainant; that at a point about 325 feet north of 59th street, in said town of Lake, the defendant has constructed its tracks up to those of the complainant on both sides of Wallace street, and is making preparation to lay them down across the complainant’s tracks, and is threatening to make such crossing, and that if it does so it will greatly embarrass and injure the complainant; that the defendant ought not to be allowed to proceed further with the work of constructing said tracks over those of the complainant until the damages that will be occasioned thereby to the complainant be first ascertained and paid to the complainant, and that the defendant, unless restrained from so doing, will construct said crossing without regard to the complainant’s rights.
    The bill, which is sworn to, waives an answer under oath, and prays that the defendant be restrained from constructing said crossing, until the complainant’s damages to be caused thereby shall have been ascertained and paid to the complainant
    The defendants answer, which is verified by affidavit, admits that it is informed and believes that the complainant has constructed and is operating its tracks on Wallace street, in the town of Lake, substantially as stated in said bill, but alleges that the defendant is not aware of the amount of business done over said tracks, or that any railroad companies other than the complainant are authorized to do business thereon; that if said tracks are so used, such use is unlawful and unauthorized by the complainant’s charter, or any ordinance of the town of Lake; that the statements in said bill as to the construction of said tracks bv the defendant, are inaccurate and untruthful; that the defendant possesses full and complete legal authority by its charter and the ordinances of the town of Lake to lay its tracks across streets in said town; that the defendant has not attempted to cross the complainant’s tracks and has no desire to do so, except in a legal, competent and proper manner.
    The answer further alleges that the full and correct statement of the matter is as follows: The defendant being desirous of forming a connection with the Pittsburgh, Fort Wayne and Chicago Railroad Company on Stewart avenue, in said town of Lake, proceeded to purchase, and now owns in fee simple, a, strip of land running from their road in said town, at a point north of 59th street, parallel with and near to said street, and extending a distance of about two and one half miles to Stewart avenue, on the line of the Pittsburgh, Fort Wayne and Chicago Railway Company, at or near Ford street; that the lands so purchased are at no point less than sixty feet wide, and in some places are one hundred feet wide, and are in almost a direct line from the defendant’s road to that of said Pittsburgh, Fort Wayne and Chicago Railway Company; that having secured said lands, the defendant had an uninterrupted right of way between the two roads, save and except the right to cross the streets in said town of Lake; that the defendant made application to the trustees of said town for the privilege of crossing said streets, and that said trustees thereupon passed an ordinance granting to the defendant such permission,"which ordinance was afterward duly accepted by the defendant; that the defendant is thereby empowered to cross the streets in said town, and has laid down its tracks, and is ready to cross Wallace street; that on that street are laid the tracks of the complainant, an easement for that purpose having been granted to it by said town as averred in the bill; that such crossing being an indispensable necessity to the successful use of the defendant’s connection between said roads, the defendant gave notice to the complainant and had a conference with its officers in relation to the method.of crossing said street; that after considerable negotiation the complainant exhibited a disposition to prevent the defendant from using the rights which it had acquired under the ordinance of said town, and are obstructing the defendant in making said crossing; that the defendant has no intention to proceed to construct its tracks over those of the complainant in an unlawful, or violent manner, but was about to apply for an injunction restraining the complainant from preventing its making said crossing.
    The answer denies that any damages will result to the complainant from the construction of said crossing, it being provided in said ordinances that said tracks shall be laid on said street at grade. It also claims that if the complainant has any remedy, such remedy is at law by condemnation proceedings.
    Mr. Charles M. Osborn and Mr. S. A. Lynde, for appellant;
    that the railroad company acquired an easement in perpetuity in so much of the street as was occupied by its track, cited C. & N. W. Ry. Co. v. Village of Jefferson, 14 Bradwell, 621.
    Equity will enjoin a railroad company from entering upon and taking possession of another for the purpose of constructing its road until it has made compensation for the property proposed to be taken: High on Injunctions, 2d Ed. § 622; Comm’rs v. Durham, 43 Ill. 86; Shute v. C. & M. R. R. Co., 26 Ill. 438; C. & N. W. Ry. Co. v. Village of Jefferson, 14 Bradwell, 616; Stetson v. C. & E. R. R. Co., 75 Ill. 75; Patterson v. C., D. & V. R. R. Co., 75 Ill. 588.
    Mr. B. Biddle Boberts, for appellees.
   Bailey, J.

It appears, both by the averments of the bill and the admissions of the answer, that the complainant’s railroad runs for several miles upon and along Wallace street in the town of Lake, and that it was constructed upon that street by and with the consent of the municipal authorities of said town. It also appears that the defendant, being desirous of connecting its tracks with those of another railroad lying upon the opposite side of the complainant’s road, has purchased the land upon which to construct the connecting tracks, and obtained permission and authority from the town to lay its tracks across the intervening streets, and has actually laid said tracks the whole distance except-across the complainant’s road at Wallace street-. The question is, whether it has a right to cross the complainant’s road without its consent, and without making just compensation for such damages as will thereby result to the complainant.

It can not be doubted, we think, that the complainant, by laying its tracks and building its railroad in Wallace street, after having obtained permission and authorit)r so to do from the town, acquired a perpetual easement in the street. That easement consisted in the right to maintain, use and enjoy its railroad free from hindrance or molestation, save such as was incident to the proper and ordinary nse of the street by the public. As we said in C. & N. W. Ry. Co. v. Village of Jefferson, 14 Bradwell, 615, “This easement is a property right, and it is as much protected from unlawful invasion as any other property, nor can it betaken or damaged for public use without just compensation.”

It seems clear that the construction of another railroad across that of the complainant, though built on the same grade, is a taking of the complainant’s property for public nse, within the meaning of the constitution. It necessitates an interference with the track and road bed of the complainant’s road, which does not come within the proper and ordinary use of the street as a highway, atid which will necessarily, to some extent at least, impair the beneiicial enjoyment of the complainant’s easement, Before this can be permitted, the damages to the complainant’s property rights must be ascertained and compensation made,

To effect the crossing, the complainant’s tracks at the place in question must be removed and cross-tracks put in, thus necessarily causing, for the time being, a total obstruction of the road. But another and perhaps a more important element of damages may consist in the permanent interference, by means of the crossing, with the business transacted over the complainant’s road. It appears by the bill that over one hundred trains pass over their road daily, and it is hardly possible that trains passing the crossing on the defendant’s road will not form some considerable obstruction to the business thus.being carried on over the complainant’s road. That such obstruction constitutes an element of damage for which the complainant is entitled to compensation, seems to be settled in L. S. & M. S. Ry. Co. v. C. & W. I. R. R. Co., 100 Ill. 21.

But it is not necessary for us in this case to determine the measure of damages. It appearing that the construction of the proposed crossing will constitute a taking of the complainant’s property within the meaning of the constitution, the complainant is entitled to have the construction of the crossing enjoined until compensation is made. The authorities cited by the counsel for the complainant sustain the position that a court of equity will enjoin a railroad company from entering upon and taking possession of the property of another for the purpose of constructing its road, until it has made compensation to the owner for the property thus proposed to be taken.

It follows that the court below erred in dissolving the injunction and dismissing the bill for want of equity, and for that error the decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.