text:
    John M. Speer, Conservator, Appellee, v. American Stars of Equity, Appellant.
    Gen. No. 5325.
    1. Appeals and errors-—when ruling upon demurrer not subject to review. In the absence of an assignment of error a ruling upon a demurrer is not subject to review.
    2. Pleading—when defense not considered. A defense not set up by plea will not be considered.

      3. Verdict—when excessive properly cured by remittitur. If a jury through no fault of its own returns a verdict in excess of -the defendant’s liability, the error may be cured by remittitur of such excess.
    4. Fraternal benefit societies—when not entitled to pay certificate in installments. If a certificate gives to the society a right to pay the death benefits in installments, in order to preserve the right so to do in an action brought to recover the face of the certificate the question of such right must be preserved by the record.
    Action in covenant. Appeal from the Circuit Court of Jo Daviess county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    W. U. Cronkrite and Sheean & Sheean, for appellant.
    Hodson & Campbell, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

On December 31, 1903, the American Stars of Equity, a fraternal beneficiary society, issued to Alfred 0. Phillips, a certificate of insurance payable to “Charles P. Phillips $1,500. Legal Heirs $1,500. Related as Son,” upon satisfactory evidence of the death or disability of the insured for a sum not less than $3,000 in accordance with, and under the provisions of the laws governing said fund. The application, among other things, stated that the insured was a moderate user of spirituous and distilled liquors; that he was a widower; and that any concealment of facts or fraudulent statement made by him should forfeit his rights to all benefits of the order and membership therein. The certificate contained a schedule showing its value on the death of a member at different ages, the total value of the certificate, $3,000, to be paid, provided the insured died at the age of seventy, having been a member for twenty-five years. It also provided that at death, disability or maturity, the net value of the certificate might be paid, one-fifth cash and one fifth annually for four years, or until the whole amount was paid. Phillips died July 19, 1907, at the age of fifty-two years, one month and five days. Eotiee and proofs of his death were furnished the society, and payment of the certificate demanded and refused. On October 28, 1908, Charles P. Phillips, a son of the deceased, brought this suit in covenant in the Circuit Court of Jo Daviess county to recover the amount due on the certificate. The declaration contained two counts which stated the facts and set up the certificate in hcec verba, and assigned a breach of the covenant. Later, John M. Speer, conservator of the estate of the said Charles P. Phillips, was substituted as plaintiff, and thereafter the cause proceeded in his name. The society interposed six pleas to the declaration. The first plea stated that the covenant was not its covenant. The second and fifth charged that insured intentionally and fraudulently misstated material facts in the application, to-wit: That0 he used spirituous and distilled liquors moderately, when in fact he used them immoderately, said statement being a warranty and untrue; that the defendant, relying on said application as being true, accepted the said Alfred C. Phillips as a member; that owing to the untruthfulness of the said statement and warranty, the society was released from liability. The third plea set out that the covenant sued on provided that, at death, total disability or maturity, the net value of the certificate might be paid, one-fifth cash, one-fifth annually until the whole amount was paid, and that it exercised the option given to pay one-fifth cash and one-fifth annually, but denied that it was liable to make any such payment for the reason that said Phillips wrongfully and fraudulently misstated material facts in the application. The fourth plea charged that the certificate was issued to Phillips, on condition that he comply with the laws and regulations then governing the branch of the society of which he was a member, or with any such laws or regulations to be passed in the future; that after the certificate was issued, defendant passed the following: “Should death" of a member occur as described in section one of this article, or for any cause the result of any act committed while in an intoxicated condition or the result of intoxication, this society shall return to the beneficiary or beneficiaries the premium paid by said deceased member, together with four per cent interest, which shall he in full settlement of all claims of the beneficiary upon this society;” that the death of said Alfred C. Phillips was caused as a result of intoxication, and that defendant immediately after his death tendered to the guardian of the beneficiary, the premiums paid by him, with four per cent interest; that defendant was thereby released. The sixth plea was like the second and fifth pleas except that it charged that excessive drinking and intoxication caused the death of said Alfred 0. Phillips, and that defendant was thereby discharged of liability. A demurrer was sustained to the third plea, and issues were joined on the others, and a trial resulted in a verdict of $3,315. A remittitur of $726.78 was ordered, and judgment for $2,588.22 was entered, and the society prosecutes this appeal..

The third plea stated, first, that appellant availed itself of the option of paying in installments, the first installment being then due, and then denied any liability whatever. It said, first, that one-fifth of the value of the certificate was due and that the society would pay it; then that nothing was due and that it would pay nothing. The plea was double, and the demurrer was properly sustained.' Moreover, the ruling of the court in sustaining the demurrer is not assigned for error,, and therefore no question can be raised upon that ruling in this court.

The introduction of the certificate and proof of the insured’s death, and that Charles P. Phillips was his son and heir at law, and proof that appellee was conservator of the beneficiary named in the policy, made a case for appellee. The burden then shifted upon appellant to prove at least one of the two defenses set up in the pleas, either that the certificate was obtained on the fraudulent representation that he was but a moderate user of spirituous and distilled liquors when, in fact, he was an immoderate user thereof, or that his death was caused as a result of intoxication.

The proof showed that the direct cause of Phillips’ death was uraemic coma and the remote cause “Bright’s Disease,” and appellant’s own proof showed that the Bright’s Disease was a secondary condition due to some other cause than his habit of drinking alcoholic liquor. There was, therefore, no proof to sustain the averment of the pleas that his death was caused by intoxication. Dr. Stealy testified for appellant that he met the insured frequently at medical societies; that in either 1904 or 1905 when the medical society met in Chicago, the insured was there during the week and was drunk constantly; that the physicians went from Chicago to Hew Orleans, where the insured had delirium tremens; but all this was after the issuance of the certificate. One witness testified for appellant that he thought the deceased was never sober in 1903, but his testimony was incompetent as he held a certificate as a member of the society and was therefore interested in the result of the suit. Cronin v. Royal League, 199 Ill. 228. Another witness testified for appellant that deceased was a moderate drinker and another that he never saw him full. On the other hand, appellee had numerous witnesses who either did not know that deceased had any habit of drink or had never known of his being drunk or perceptibly under the influence of liquor, while they knew he was in the habit of drinking whisky. In our opinion, the preponderance of the evidence did not support the averments of the second and fifth pleas that he used spirituous and distilled liquors immoderately. We cannot say that the jury were not warranted in finding that he was only a moderate user of such liquors at and prior to the time of the issue of this certificate.

A witness testified that, to the best of his knowledge Phillips’ wife was alive. He did not state where she lived, or the means or source of his information. Appellant urges that had it known that deceased had a wife living, his application would have been rejected. Even though deceased had a wife living when he made his application for the certificate, there was no plea alleging that in his statement that he was a widower was false, and that the certificate was issued in reliance thereon; therefore that question is not presented by this record for our consideration, as a defense.

The second instruction given for appellee told the jury that forfeitures are not favored in law and that before the defendant could defeat the right of recovery on the ground of forfeiture, it must establish the forfeiture by clear and strict preponderance of the evidence, but the instruction also told the jury that defendant would be entitled to a verdict if the defenses pleaded were established by a mere preponderance of the evidence. From this instruction read with appellant’s instructions which laid down no stricter rule, the jury could not have failed to understand that a preponderance of the evidence was sufficient to establish the issues relied on as a defense.

As the deceased was but fifty-two years old at the time of his death, according to the rates in the certificate, his beneficiary was entitled to but $2,436,24, but there was no instruction given on that subject, and the verdict was for $3,000 with interest added. After the verdict the court made some figures and required appellee to remit $726.78 from that sum. Of this appellant complains, on the ground that the court took the question of liability of appellant from the jury. The jury determined appellant’s liability, but through no fault of theirs returned a verdict in a larger sum than was due under the terms of the certificate, which sum could be accurately determined. The court had the right to make the calculation and order a reduction to the amount which appellee was entitled to recover under the terms of the certificate. It is not claimed that the amount of the judgment, after the remittitur was entered, was greater than was due by the terms of the certificate, and therefore we are not called upon.to make a computation to prove the 'accuracy of the figures made by the trial judge.

It is urged that appellant could only be adjudged to pay one-fifth of the amount due on the certificate now and the other four-fifths in the succeeding four years at the rate of a fifth a year. The fallacy of this position is, that appellant, after the demurrer was sustained to the third plea, had no plea raising that question, and did not even assign error on the ruling of the court in sustaining the demurrer to that plea, nor raise it by instruction or by any application to the court to rule on the subject. We are of the opinion that that question is not raised by this record.

Finding no error of law in the record, the judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Willis

license: Public Domain

text:
    Edward Lawrence, Appellee, v. Village of Channahon, Appellant.
    Gen. No. 5332.
    1. Negligence—when city liable for disrepair of bridge. Notwithstanding a bridge may have been constructed by the state and not formally accepted by the city, if it has been permitted by the city to be used as a part of its highway system and if the city graveled the approaches thereto, the city is liable for injury to property resulting from its state of disrepair.
    2. Negligence—when violation of statutes does not preclude right to recover. If an injury to property has been suffered through negligence of a city, the person who has suffered the damages is not barred of a recovery because of the violation of a statute by him where such violation in no wise contributed to the injury suffered.
    Action in case. Appeal from the Circuit Court of Will county; the Hon. Dorbance Dibell, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    S. J. Dbew, for appellant.
    Louis Laggeb and Geobge ÜST. Blatt, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Ohannahon, a village incorporated under the general law, is situated in the western part of Will county. Its main east and west street crosses the DuPage river and the Illinois and Michigan canal by means of a small bridge over the east branch of the river, a double span bridge over the main stream some distance westward, and a single span bridge over the canal which is fifty or sixty feet from the main stream. They were built by the state before the village was incorporated and are wholly within the corporate limits of the village, and are the only bridges in or near the village that cross both streams. The bridges needing repairs, and a dispute arising between the canal commissioners and the village officers, as to whose duty it was to repair them, an agreement was entered into, whereby the village was to make the necessary repairs, for which it was to be reimbursed by the canal commissioners, in the event an appropriation was made by the legislature and sustained by the Supreme Court. The village did make sundry repairs. Later, the canal commissioners notified the village that they would not be responsible for these bridges, and offered to give them to the village upon certain conditions, which offer the village declined to accept. On August 18, 1907, while Edward Lawrence was driving in an automobile over these bridges, the east span of the double bridge gave way, and he and the automobile fell into the river. He was not hurt, but the automobile and its contents were damaged. He brought this suit in the Circuit Court of Will county to recover damages for injuries to the automobile and other property, for money and time spent in recovering and reclaiming his property, for the deprivation of the use of the automobile, and for repairs therefor. The declaration contained two counts. The first charged the village with the duty to keep the east span of the double bridge in a reasonably safe condition, or to close the same to public travel; that it negligently permitted said span to become, and, for a long time prior to the accident, to remain, in a decayed and otherwise unsafe condition; that the village had knowledge of its dangerous condition, and neither made the necessary repairs nor closed it to public travel, and, that, while' Lawrence, in the exercise of due care, was attempting to pass over the east span, without any knowledge of its unsafe condition, it suddenly gave way and precipitated him and his automobile and its contents into the river. The second count was like the first except that it alleged that the village was possessed of, or in control of, a certain public highway leading to and across a certain public bridge across a certain stream, all within the corporate limits. A plea of not guilty was interposed, and a trial resulted in a verdict for Lawrence for $835. A motion for a new trial was made, and the court suggested a remittitur of $135 which Lawrence refused to make. A new trial was granted. On the second trial, Lawrence obtained a verdict of $1142.40. A motion for a new trial was made, and, on the suggestion of the court, a remittitur for $390 was filed. The motion for a new trial was overruled, judgment was entered' for $732.40 and the village prosecutes this appeal.

The evidence is conflicting as to the condition of the span of the bridge that gave way. Many witnesses testified that it was in a bad state of repair, and had been for a number of months. Many others testified that it was in good condition. The proof was also conflicting as to the degree of care appellee exercised in driving the automobile upon the bridge. This conflict in the evidence was for the jury to determine, and, as we cannot say that their verdict is manifestly against the preponderance of the evidence, it is binding upon this court.

Appellant does not question the amount of the damages, but contends, that, as it did not accept the bridges, it is not liable, and that, as the bridges are owned by the State, if any liability exists, it is for the canal commissioners to answer. It is true that the. bridges in question were built by the State, and that when tendered to the village, they were not accepted; that the village was not bound to maintain them; that it could have condemned them as a nuisance; that it might have vacated the street leading to them and might have closed them up, but it did nothing to prevent the public from using them. They are all within the corporate limits of the village, and are a part of its system of highways, and in general use by the public. The village authorities, not only allowed them to be so used, but repaired them, graveled the approaches to them and the -roadway between them, and replanked, and otherwise repaired the span that fell. It was held in Village of Marseilles v. Howland, 124 Ill. 547, that “An incorporated town is not bound to build a sidewalk upon a public street, but if one is constructed by an individual, and is used by the public with the knowledge of the town authorities, the law would require them to remove the walk or assume responsibility for its reasonably safe condition. The same may be said of a bridge constructed within the limits of an incorporated town.” The act under which the village was incorporated, conferred the power to control and repair its highways and streets, and a municipal corporation cannot, as held in Kreigh v. City of Chicago, 86 Ill. 407, divest itself of a power imposed upon it by the law. The law imposed upon the village the duty to keep its streets and bridges in a reasonably safe condition for travel, and that duty cannot be shifted to another. Village of Jefferson v. Chapman, 127 Ill. 438. The village cannot escape liability on the ground that the bridges are owned by the State and that it did not accept them when tendered to it.

Complaint is made of the refusal of the court to give the fourth, fifth, sixth, eighth, tenth and eleventh instructions asked by appellant.

The fourth would have told the jury that if they believed that appellant did not own the bridge, and had not accepted it as a part of its highway, it should be found not guilty. If it had assumed control thereof, it was liable, and the jury had a right to consider that phase of the case. Both the fourth and fifth disregard the question of appellant’s liability for the failure on its part to close the bridges to travel, and for inviting the public to use them by improving the highway up to and between the same, and for not posting notices of warning, and neither was in harmony with the rule laid down in Village of Marseilles v. Howland, supra. They directed a verdict and should have accurately stated the law.

The seventh instruction would have told the jury that appellee was bound to use in the day time certain precautions as to lighting that were required by the statute only at night, and that if appellee did not have a red light burning on the rear of his automobile at the time of the accident, he could not recover. The neglect of an owner of an automobile to comply with the statute in its requirements as to automobiles, may subject him to a penalty, and he may be ;prima facie liable for any injury he may occasion, if he is in default in this respect, but he can, like any other citizen, recover, if he is injured on a public street through the negligence of another, where his default does not contribute to the injury. Hemming v. Haven, 74 Atl. Rep. 892.

Instructions six, eight, ten and eleven were mere abstract propositions of law and had no application to the facts in the case.

Appellant further contends that counsel for appellee made improper remarks to the jury during the progress of the trial. This question is not presented for our consideration, as no objection or exception to such remarks appear in the record. A party litigant can only complain where he has objected and obtained a ruling of the court, and excepted to it, or excepted to the refusal of the court to act. McCann v. People, 226 Ill. 562; Peterson v. Pusey, 237 Ill. 204; People v. Weil, 243 Ill. 208.

Ho reversible error of law appearing in the record, the judgment of the lower court is affirmed.

Affirmed.

Mr. Justice Dibell took no part in the decision of this case.


text:
    Flora D. Kirby, Appellant, v. Emery A. Kirby, Appellee.
    Gen. No. 5338.

      Divorce—when desertion established. If a man has without cause absented himself from his wife for a period of four and a half years, does not contribute to her support or to the support of his children, and advises his wife that he has entered into adulterous relations with another woman, the ground of desertion is established notwithstanding he may have corresponded with his wife and indicated an intention to visit her.
    Divorce. Appeal from the Circuit Court of Knox county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    E. D. Bobinson, for appellant.
    ¡No appearance for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

On July 19, 1904, Flora Welker and Emery A. Kirby were married. At that time, she was living with her parents on a farm, and Kirby was working by the month for a neighboring farmer. After their marriage she still lived with her parents and Kirby continued to work on the neighbor’s farm, visiting her Sundays and spending a night with her occasionally until December, 1904, when he left the State. He never returned. On September 1, 1909, she filed a bill for divorce against him, alleging that she had been a resident of the county and State for more than two years; that they were lawfully married; that she had conducted herself as a faithful wife;, that he deserted her without reasonable cause, and still persisted in such desertion; and that a male child was born as a result of the marriage. The bill prayed for a dissolution of the marriage, and that complainant have the care and custody of the child, and for other relief. Service was had on Kirby by publication and by mailing to his last known address a notice of the commencement of the suit, as required by statute. He was defaulted for want of answer, proofs were heard, the bill was dismissed for want of equity, and complainant prosecutes this appeal.

The proof shows that when appellee left Illinois, he went to Iowa, and from there went west. He enlisted in the navy and deserted after two months’ service. When last heard from, he was living in Seattle under the name of “Dick Slater.” Appellant and her father and brother testified that the relations between the two were pleasant; that all were willing that he should live with her at the home of her parents; that while -he once rented a place he did not furnish it; that he had no reasonable cause for deserting his wife, and that he had not been back since he went away. The proof was conclusive that appellee did .not at any time after their marriage furnish appellant with any money, provide her with a home or pay her board or clothe her; that he had-not contributed anything to the support of the child; that her father had supported her ever since the marriage, and the child since its birth. Appellant testified that appellee wrote her about two dozen letters during his absence, and that sometimes the correspondence was friendly and somtimes not. Two letters written by appellee to appellant, one signed “Dick Slater” the other unsigned, were produced. One was dated June 1, 1909, and one June 20, 1909. The letter of June 1, contained the following: “If I have good luck you and baby and I will take Xmas dinner at my mother’s, that is a good long way áhead to plan but I am going to plan anyway. I guess you will go, won’t you? I guess you will have to address all letters by the name I am going by now.” This letter was unsigned. The letter of June 20 was as follows:

“Seattle, Wash.

June 20, ’09.

Dear Wife and Baby:

Inclose you will find a letter that you sent-to me. How you can do as you like; if you want someone else why you go to it, for I do not care one way or the other, I have some one to sleep with every night so why should I care;"so do as you like; this world is wide and when I cannot live in the good old U. S. why I will get out. I do not like Seattle very well but I think I will stay here a while as far as I know now. I have not been to the fair yet, I do not know whether I will go or not. I know your folks do not like me and I don’t care. I do not know anything more to write, I have written so many to other girls I am tired and I have two or three more to write so will close and write if you feel like it, and if not all right.

Tours in haste.

Dick Slater,

410^ Ave. So., Seattle, Washington.”

This was the last letter he wrote to his wife and she brought this suit about two and a half months later. The statute provides that if either party has wilfully deserted or absented himself or herself from the other without any reasonable cause for the space of two years, it shall be lawful for the injured party to obtain a divorce. At the time of filing the bill, appellee had been gone about four years and three quarters and even though he had written her perhaps twenty-four letters and though in one written four and a half years after he went away, he said he was going to plan to eat Christmas dinner with his wife and baby at his mother’s home, which seems to have been in Iowa, this did not justify his absence or make it anything other than desertion. There was nothing to show that he absented himself with appellant’s consent. She testified that she did not know why he left and that he did not tell her when he was going, but that she never expected that he would return. His letter of June 1 was written long after the cause for divorce had matured, and if appellee had returned on the date indicated, it would not have barred appellant’s right to a divorce. He had sent his wife and child no money during the time he had been away, either for their support or that they might go to him, and less than three weeks after the date of the letter referred to, he wrote another and his last letter to his wife by which he undoubtedly intended her to understand that he was living in adulterous relations with another woman. When a man who has not seen his wife for four and one half years nor aided in her support, establishes adulterous relations with another woman, and so advises his wife, this certainly tends strongly to show that he has deserted his wife. The letter of June 1, 1909, suggesting that he might meet her six months later at his mother’s could not bar the right to a divorce which had already accrued to her, under the statute; but the later letter of June 20, 1909, makes it obvious that the former letter was not written in sincerity. In our opinion the evidence in this case shows that appellee never performed his marriage obligations, and that he is guilty of wilful desertion, entitling appellant to be released from him. >

The decree of the circuit court is reversed, and the cause remanded, with directions to the court below to grant appellant a decree of divorce and award her the custody of the minor child.

Reversed and remanded with directions.

Mr. Justice Thompson took no part.


text:
    Southern Collegiate Institute of Albion, Illinois, Appellee, v. The Estate of Cyrus M. Avery, Appellant.
    Gen. No. 5339.
    1. Evidence—6urden to show disqualifying interest of witness. The presumption is that one offered as a witness is competent to testify, and the burden is therefore upon one who objects to state and prove the grounds of his objection.
    2. Evidence—what interest disqualifies witness; what not. To render witnesses incompetent where the adverse party sues or defends in a representative capacity, their interest must appear to be present, certain and vested, and not an interest uncertain, remote or contingent.
    3. Evidence—how disqualifying interest to be ascertained. In order to determine whether or not a witness offered in a cause possesses a disqualifying interest, the court should permit his examination upon a voir dire.

    4. Evidence—icho not disqualified by virtue of interest. A paid officer or agent of a corporation is not for that reason necessarily incompetent where the adverse party sues or defends in a representative capacity.
    Contested claim in court of probate. Appeal from the Circuit Court of Knox county; the Hon. Habby M. Waqqoneb, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.

      Williams, Lawrence, Welch & Green, for appellant.
    Fletcher Carnet and James W. Carnet, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court

The Southern Collegiate Institute of Albion, Illinois, was incorporated in 1891. It is a non-sectarian organization, its only object being educational. It is supported mainly by donations, and its management is vested in a board of trustees. Frank B. Hines was its president and J. W. Strawn was its treasurer and a stockholder in the bank in which its funds were deposited. Hines and Strawn were sureties on a note of the Institute for money borrowed of the bank in which Strawn was stockholder. Hines received a salary as president of the Institute, and Strawn served as treasurer without pay. On June 27, 1905, Cyrus M. Avery executed a will, the seventh clause of which bequeathed to the Institute one-tenth of the remainder of the income of the estate, which, it is claimed, was one-twentieth of the whole income of the estate. He died September 15, 1905. On October 20, 1906, the Institute filed a claim in the County Court of Knox county against his estate and obtained a judgment for $5,609.68. An appeal was taken by the executors of his estate from that judgment to the Circuit Court of said county, and a trial there resulted in a verdict for the Institute for $4,611.10. A motion for a new trial was denied. Judgment was entered on the verdict and the executors prosecute this appeal.

The judgment rests upon the testimony of Hines and Strawn. Hines testified that Avery said to him in May, 1903, and again in 1904, that, if he would bring S. H. Ingersoll of Sandoval, Illinois, and him (Avery) together, and that if, as a result of such meeting, Ingersoll would remove his manufacturing plant from Sandoval to Galesburg, Illinois, and allow Avery to organize a company for the purpose of manufacturing from certain patents owned by Ingersoll, that Avery would give the Southern Collegiate Institute, or Hines individually, $5,000 of the stock of the new company. Strawn testified that he was present at a conversation in which Avery said to Hines, “If you will bring Ingersoll and I together, and we can induce him to remove his plant from Sandoval to Galesburg, and he will permit me to organize it, I will give you or the college $5,000 of the stock.” Hines did bring Ingersoll and Avery together and Ingersoll’s plant was removed to Galesburg and a new corporation was organized by Avery. The court admitted the testimony of Hines and Strawn over appellant’s objections, and refused to admit the will of Avery in evidence, and also refused to admit proof of what one-twentieth of Avery’s estate would amount to. At the close of Hines’ testimony, and also at the close of Strawn’s testimony, appellant moved the exclusion of such testimony on the ground that said witnesses were interested in the result of the suit. These motions were denied. Appellant sought to show that the salary of Hines was dependent in part upon the money to be collected from Avery’s estate, but was not permitted to do so. At the close of all the evidence, appellant renewed its motion to strike from the record the evidence of Hines and Strawn, and asked for a directed verdict in favor of appellant, both of which motions were denied.

We do not understand the ground of appellant’s contentions to be that Hines and Strawn were incompetent as witnesses because they were officers of the Institute, but that Hines’ salary might be dependent in part upon the money that might be collected from Avery’s estate, and because they might possibly be called upon to pay the note upon which they were sureties. The presumption is, that one offered as a witness is competent to testify, and the burden is, therefore, upon one who objects to state and prove the grounds of his objection. Campbell v. Campbell, 130 Ill. 466; Boyd v. McConnell, 209 Ill. 396. The true test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action. To render Hines and Strawn incompetent as witnesses against appellant, it must appear that they had a present, certain and vested interest in the result of the suit, and not an interest uncertain, remote or contingent. 1 Greenleaf on Evidence, secs. 390, 408 and 409; Illinois Mutual Insurance Company v. Manufacturing Co., 1 Gilm. 236: Curtenius v. Wheeler, 5 Gilm. 462; Feitl v. Chicago City Railway Co., 211 Ill. 279. Strawn had no direct interest in the result of the suit, unless the bare possibility of his being called upon to pay a note could be considered a direct interest within the meaning of the statute. Of this, it was not shown there was the slightest probability. In Curtenius v. Wheeler, supra,, it was held that a surety for a debt was a competent witness in a suit on a note given as collateral security for the same debt, for the reason that there was only a possibility, not a certainty, that the surety would be required to pay the debt. The status of Hines was no different from that of Strawn, except that he received a salary for his services.

The court refused to permit various questions to be asked by which it was sought to show that appellee might not have sufficient funds to pay Hines’ salary, without the amount of this claim, and that the money from this claim might be necessary to pay the note upon which Hines and Strawn were sureties, and this evidence was not admitted. In order to investigate these questions, it would have been necessary to go into a complete investigation of the value of all the property which appellee owned, and all its resources by way of gifts and tuition, and its liabilities. We are of the opinion that it was never intended that a court should be required to make such an investigation in order to determine whether an officer of such a corporation was directly interested in the result of a suit, if called as a witness, as in this case. Such a rule would greatly complicate trials, and would lead to the trial of remote issues. If such an investigation had been permitted, and it had appeared that, upon a dissolution of the corporation and the subjection of all its property to the payment of its debts, there would not be enough to pay them in full, and that Hines might thereby lose some part of his salary, or that Hines and Strawn might have to pay the note, we are of the opinion, that the interest would have been so remote and uncertain as not to have disqualified them as witnesses. It is urged that the court erred in not permitting the examination of Hines and Strawn as to their competency before they testified in chief. The court should have permitted the preliminary examination, but, as their cross examination discloses their interest, if any, to be contingent and remote, no harm resulted to appellant from the irregularity of the examination.

Appellant argues that Hines might have filed a claim against the estate on his personal account, and that his failure to do so amounted to a release of his interest for the purpose of testifying within the meaning of section 7 of the Evidence Act. The last interview that Hines had with Avery was in May, 1905, and he testified, that, at that time, he told Avery that he had come to Galesburg to find out whether he (Avery) was going to turn that stock over to the college at Albion, and that Avery told him he intended to do so. The stock of the new company was not issued until after Avery’s death. Hines never made any claim for the stock in his own behalf, either to Avery or against the estate. The statutory provision referred to is against a release made for the purpose of making competent a witness otherwise incompetent. Hines never was incompetent in a suit in behalf of the Institute, and certainly a disclaimer of any personal claim against the estate would not have the effect to make him incompetent. Campbell v. Campbell, supra.

Appellant argues that there is no reason for assuming that Avery intended to do more than he had done in his will, or that he felt he was obligated in any way to the Institute beyond the provision therein contained. Has will, which was offered in evidence in support of this theory, was not admitted. The portion of the will abstracted does not show what the bequest to appellee would amount to, neither does it make any reference to the gift of stock, which it is claimed was promised to appellee. It, therefore, had no bearing on the issue in this case and was properly rejected.

If, as appellant argues, it is dangerous to permit paid agents and officers of a corporation of this kind to prove an oral contract made bty a deceased person with such an agent or officer, as it might subject estates to pay unjust demands without any possibility of a successful defense, that question is for the consideration of the legislature and not the courts.

Finding no reversible error of law in the record the judgment is affirmed.

Affirmed.


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    Harvey W. Seybert, Appellee, v. Sterling, Dixon and Eastern Electric Railroad Company, Appellant.
    Gen. No. 5347.
    1. Contributory negligence—crossing railway trades. Attempting to cross the track of a street railway ahead of a moving car is not necessarily to he imputed as contributory negligence. It may or may not be prudent, depending upon the proximity of the car and the speed with which it is moving. Whether in the particular instance reasonable care is exercised in going upon the track, is usually a question for the jury under proper instructions.
    2. Instructions—when erroneous upon question of damages will not reverse. Even though an instruction upon the question of damages may have been improper, it will not reverse if the evidence is such as would have sustained a larger verdict than the one actually rendered.
    3. Instructions—what as to duty of drivers of vehicles to respect right of way of street car company inapplicable. Held, that the following instruction is inapplicable except to accidents occurring at street intersections:
    “The court instructs the jury that by reason of its convenience to the public as a carrier of passengers and because of the inability of its ears to turn out, a street railway is invested with the right of way over-other vehicles over that portion of the street occupied hy its tracks, and it is the duty of the drivers of such vehicles to use care not to obstruct or delay such cars, and if the jury believe from the evidence, that the plaintiff while neglecting such duty and failing thereby to use ordinary care for his own safety, was injured, that he cannot recover in this case.”
    4. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its contents is substantially contained in another instruction given.
    Action in case for personal injuries. Appeal from the Circuit Court of Dee county; the Hon. Oscab E. Heaed, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Heetry S. Dixon and George C. Dixon, for appellant.
    Jonn E. Eewiet, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

The tracks of the Sterling, Dixon and Eastern Electric Railway Company extend ■ along the center of Fellows street in the city of Dixon. Fellows street runs east and west, and intersects Jefferson avenue at right angles. On July 13, 1909, Harvey W. Seybert drove a closed carriage east on this street along the south side of the track on his way to get some passengers. Before reaching the west line of •Jefferson avenue he stopped and inquired where the people lived for whom he was looking, and was told that he had passed the house by two blocks, whereupon, he drove further east to a point near the center of the intersection of the streets, and then turned his horses northward to cross the track. While on the track, the carriage was struck by a street car running east and was turned over, and Seybert was thrown to the ground and injured. He brought this suit in case against the company to recover damages for the injuries so sustained. The declaration charges negligence in the management and control of the car by the servants of the company, and averred that the injury resulted therefrom, while plaintiff was in the exercise of due care for his own safety. A plea of not guilty was interposed, and a trial resulted in a verdict of $400 for Seybert. A motion for a new trial was denied, judgment was entered on the verdict, and the company prosecutes this appeal.

The grounds relied upon for a reversal of the judgment are, that the court erred in refusing to direct a verdict of not guilty; and in giving for appellee an instruction on the measure of damages; and in refusing the second, third, fourth and fifth instructions asked hy appellant.

Appellee testified that, before turning, he looked east and saw no car coining; that he looked westward and noticed the car about two hundred feet away, approaching at the rate of ten or twelve miles an hour; that he allowed his horses to walk, and, after turning on the track, noticed the car about thirty feet away, approaching at about the same rate of speed as when he first saw it; that he struck his horses, causing them to jump suddenly forward, but before the carriage had cleared the track, the car struck the left hind wheel, turning the carriage over and throwing him to the ground; that his horses went from eight to ten feet from the time he turned upon the track until the car struck the carriage; that he was going about four miles an hour at the time; that his collar bone was cracked, his head was cut and his body badly bruised; that he suffered much from the effects of his injuries, and had been unable to do heavy work since. The motorman testified that he first saw appellee about two blocks ahead; that appellee turned upon the track about eighty feet ahead of the car; that the car was running ten or twelve miles an hour; that the witness applied the reverse brake and it refused to work; that he then applied the hand brake; that his car ran the width of the street after the accident and that such a car running ten or twelve miles an hour could he stopped within one hundred feet. Another witness testified that the car was on hundred feet distant when appellee turned upon the track; that the car passed the intersection at its usual rate and stopped one hundred feet beyond the crossing. Another testified that, with a reverse brake, a car of this type running ten or twelve ■ miles an hour could be stopped within fifty feet. Another witness testified that the front end of the car and the horses were about forty or fifty feet apart when the horses turned upon the track; and another, that they were between seventy and eighty feet apart.

The force with which the carriage was struck, and the distance the car ran after the collision, in spite of the efforts of the motorman to stop it, tended to show that the car approached the carriage at a rate of speed that indicated negligence in its management. A closer question is whether appellee exercised due care in going upon the track when he saw the car approaching. Attempting to cross the track of a street railway ahead of a moving car is not necessarily to be imputed as contributory negligence. It may or may not be prudent, depending upon proximity of the car and the speed with which it is moving. Whether, in the particular instance, reasonable care is exercised in going upon the track, is usually a question for the jury under proper instructions. 2 Thompson on ¡Negligence, 1450. Appellee was bound to exercise reasonable judgment in view of all the circumstances, and the court in passing on the motion to direct a verdict, was required to consider all 'the evidence, including the distance of the car from the carriage, the rate of speed, the fact that the accident occurred at a street intersection where the rights of the parties were reciprocal, and all the circumstances. We cannot say, that, so considered, the evidence necessarily led to but one conclusion; but we think the question, whether under all the circumstances appellee had reasonable grounds for believing that he had time to get across the track before the car would reach him, was proper to be submitted to the jury.

The instruction given for appellee on the measure of damages contained the statement, that, in estimating appellee’s damages, the jury might take into consideration, his health and physical condition prior to the injury and his health and physical condition since. Appellant argues that the instruction was harmful because there was no evidence of the state of appellee’s health prior to the injury; or that the injury would have any effect upon his earning capacity. The evidence shows that appellee was a strong, healthy man, forty-two years old when injured, and that, at the time of the trial, seven months later, he was unable to perform hard manual labor. The physician who attended him testified that there was an injury there, but how long it was going to last he was unable to say. We are of the opinion that this evidence was sufficient to warrant giving the instruction; but if this were dobutful, we think the proof as to the injuries appellee sustained, whether permanent or not, would warrant a larger verdict than the one returned.

The principle announced in appellant’s second refused instructions was stated in instruction nineteen givejn ait appellant’s request; that stated in its third refused instruction was set forth in given instructions fourteen and twenty-one; and the substance of its refused instruction four is embodied in the eighteenth instruction given at its request.

Appellant’s fifth refused instruction was as follows:

“The .court instructs the jury that by reason of its convenience to the public as a carrier of passengers and because of the inability of its cars to turn out, a street railway is invested with the right of way over other vehicles over that portion of the street occupied by its tracks, and it is the duty of the drivers of such vehicles to use care not to obstruct or delay such cars, and if the jury believe from the evidence, that the plaintiff while neglecting such duty and failing thereby to use ordinary care for his own safety, was injured, that he cannot recover in this case.”

This instruction is almost identical with one considered by the court in North Chicago Electric Railway Company v. Peuser, 190 Ill. 67. In that case the court stated that the law as laid down in the instruction was applicable to accidents between street intersections only. Neither a street car nor the public has the right to a street intersection to the exclusion of the other from it. The rights are reciprocal and each must respect those of the other. Chicago General Railway Co. v. Carroll, 91 Ill. App. 356. As the accident and injury to appellee occurred at a street intersection, we are of the opinion that the principle of law stated in the instruction was not applicable to the evidence.

The court gave for appellant twenty-one instructions that presented the case to jury from every point of view, and many of which were exceedingly favorable to appellant. As it is not error to refuse to. restate a principle of law in a series of instructions and it is error to give an instruction not applicable to the evidence, the court did not err in the refusal of appellant’s second, third, fourth, and fifth instructions and in giving appellee’s instruction on the measure of damages.

Finding no reversible error in the record, the judgment of the lower court is affirmed.

Affirmed.


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    Elbert C. Wicks, Appellee, v. Cyrus D. Wheeler, Appellant.
    Gen. No. 5350.
    1. Evidence—when telephone conversations not incompetent. Telephone conversations are not necessarily incompetent because of the failure of the party testifying thereto to state that he recognized the voice of the person with whom he was talking.
    2. InstbuctionS'—when erroneous will not reverse. Even though an instruction may be subject to criticism, it will not reverse unless harm appears to have resulted from its giving.
    3. InstbuctionS'—when upon interest of one party erroneous. Where both of the parties to an action are natural persons an instruction should not be given which is directed to the testimony of only one of them. Held, however, in this ease, in view of the clear preponderance of the evidénce in favor of the prevailing party, that the error in giving such instruction would not reverse.
    Assumpsit. Appeal from the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    MoDougall & Chapman, for appellant.
    Butters & Armstrong, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Cyrus D. Wheeler operated a grain elevator and entered into a contract with George Sampson, a tenant on a farm owned by Elbert C. Wicks, to purchase 2,000 bushels of corn at fifty-one cents per bushel. Sampson delivered 780 bushels to Wheeler and sold the balance to some one else, got the money and left the country. Wicks brought this suit in assumpsit against Wheeler to collect $330 of unpaid rent, owed by Sampson, and obtained a judgment for that amount which, on appeal to this court, was reversed, and the cause remanded. Wicks v. Wheeler, 139 Ill. App. 412. The original declaration contained only the common counts in assumpsit. After the cause was reinstated in the Circuit Court, Wicks, by leave of court, filed three additional counts. The first count alleged that on December 15, 1901, Wicks owned a certain farm then in possession of Sampson, by virtue of a lease for the year ending March 1, 1902, at a rental of $330; and that Wheeler was engaged in buying grain at Triumph; that Sampson raised 2,000 bushels of grain on the leased premises; that the rent was wholly unpaid, and that Sampson sold said grain to Wheeler for fifty-one cents per bushel; that it was agreed between Wicks and Wheeler that in consideration that Wicks would not claim the grain, Wheeler would pay said rent. A demurrer was sustained to the second additional count. The third count was substantially like the first except that it alleged that if Wicks would fore-go his lien for the unpaid rent, Wheeler promised Wicks to pay him the unpaid rent, and that in consideration of the promise of Wheeler., Wicks did not waive his lien, and that thereupon Wheeler purchased the grain, and thereby became liable to pay Wicks said rent. A plea of the general issue and a plea of the five years’ statute of limitations were filed to the first additional count, but the third additional count was not replied to. A trial resulted in a verdict for Wicks for $330. A motion for a new trial was denied and Wheeler prosecutes this appeal.

We held on the former appeal that appellee could not recover the rent of appellant in assumpsit unless there was a contract expressed or implied that appellant would hold out the rent from the price of the corn, and the judgment was reversed mainly because of certain irregularities in the trial which we there said might have improperly influenced the jury in weighing the conflict in evidence.

Appellee testified that a month or a month and a half before the corn in question was delivered, he had a talk ovér the telephone with appellant, in which he said to appellant that Sampson had told him that he had sold his corn to appellant; that he, appellee, owned the land on which the corn was raised, and that rent amounting to $330 was unpaid, and that appellant replied that he bought 2,000 bushels and had paid $100, and that there would be plenty of money to pay it, and he would keep it out. He also testified that some time in January he called up appellant, and appellant said to him that he had only received 800 bushels of corn at fifty-one cents and that there was only $230 left for him, and appellee replied that he, appellee, had told him, appellant, to hold $330 for him, and that he would hold appellant for it. On cross-examination appellee said he had seen appellant once, but had never talked with him, and that he could not recognize his voice, but that he called for him over the telephone and asked who it was, and was told: “It is Mr. Wheeler.” These conversations over the telephone were a mitted without objection, but after appellee testified that he could not recognize appellant’s voice, counsel for appellant moved the court to exclude these conversations, on the ground that it was not certain that appellant was the person appellee talked with. This motion the court denied. In the case of Godair v. Ham Nat. Bank, 225 Ill. 572, the Supreme Court in passing on substantially the same question, quoted with approval from Wolfe v. Missouri Pacific Railway.Co., 97 Mo. 473 (3 L.R.A. 539), the following: “When a person places himself in connection with the telephone system through an instrument in his office, he thereby invites communication, in relation to his business, through that channel. Conversations so held are as admissible in evidence as personal interviews by a customer with an unknown clerk in charge of an ordinary shop would be in relation to the business there carried on. The fact that the voice at the telephone was not identified does not render the conversation inadmissible.” We are of opinion that the court did not err in denying appellant’s motion to exclude the telephone conversation. Rogers Grain Co. v. Tanton, 136 Ill. App. 533. Appellant denied the conversations over the telephone. The judgment does not rest alone on the testimony of appellee that the contract was made by conversations over the telephone, as. there is other evidence which, in our opinion, corroborates appellee’s testimony. McCormick, an attorney who undertook the collection of the claim, testified that appellant said he was not bound to pay the claim because his information about it came over the telephone. Moreover, appellant accepted an order given by Sampson to Worsley & Son by writing thereon the following, “Will pay when George Sampson delivers com to the value of five hundred and sixty dollars.” He paid Sampson $100 when he contracted for the corn and later paid him $40, and the order he accepted with a qualification was for $94.70 and the rent of $330 would make $564.70. From these facts, to us the reasonable inference seems to be that he knew that he was bound to pay the $330 rent. From the evidence in this record we think the jury were justified in finding the appellant promised appellee if he would forego his lien on the corn for the rent, appellant would pay the rent out of the price of the corn.

It is also urged that it was error to admit the order drawn by Sampson on appellant payable to Worsley & Son, and to allow counsel to cross-examine appellant thereon, and that it was error also not to permit appellant to show that he had paid the same. Appellant did not offer in evidence the order or the receipt showing that he had paid the order, although they were in his possession and'were the best evidence of payment, but sought to introduce secondary evidence. Appellant later produced the order on a rule of court, and appellee introduced it in connection with appellant’s cross-examination, and it is apparent that any error there may have been made in denying appellant’s offer of its contents was thereby cured.

Appellant complains of the first, second, third, fourth, fifth, sixth, seventh, and tenth instructions given for appellee. From an examination of these instructions we do-not deem it necessary to refer to other than the fourth and tenth, further than to say that there was no error in giving them. The fourth was perhaps awkwardly worded. It first defined a landlord’s lien under- the statute, and explained how, under certain conditions, the landlord might recover the rent from one purchasing the crops grown upon the land rented, if the tenant failed to pay the same, unless the lien had been waived by the landlord. Thus far the instruction was merely introductory to the latter part, which informed the jury that where the landlord had such a lien and had waived it by agreement with the purchaser of the crop, his waiver was a good consideration to support the agreement of the purchaser to pay the landlord the unpaid rent. The introductory part of the instruction might well have been omitted, but the instruction did appellant no harm, and, in our opinion, correctly stated the law applicable to the evidence disclosed by the record.

The tenth instruction given at the request of appellee was as follows:

“The jury are instructed that, while the law permits the defendant in the case to testify in his own behalf, nevertheless the jury have the right in weighing his evidence to determine how much credence is to be given to it, and to take into consideration that he is the defendant and interested in the result of the suit.”

Where as here, both plaintiff and defendant are natural persons, or where several witnesses are interested in the result, such an instruction directed to the testimony of only one of the interested witnesses, is properly refused unless so modified as to apply to all interested witnesses. Pennsylvania Co. v. Versten, 140 Ill. 637; City of Dixon v. Scott, 81 Ill. App. 368, and 181 Ill. 116; Matthews v. Granger, 196 Ill. 164. But in view of the clear preponderance of the proof in support of appellee’s case, we conclude that the giving of that instruction should not he held reversible error. We are of opinion that substantial justice has been done in this case. The judgment is therefore affirmed.

Affirmed.


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    Chicago & Alton Railroad Company, Appellee, v. Peoria & Pekin Union Railway Company, Appellant.
    Gen. No. 5335.
    1. Railroads—lease construed. Where one railroad company is the owner of a system of terminal tracks in an incorporated city and enters into a contract with another railroad company, styled therein as the lessee, conferring upon such other company the right to enter such city over such tracks, held, that while such contract might be considered as a lease of the main line of the first-named company over which the second-named company thereby acquired permission to run its trains, yet it was not a lease as to the matter of the transfer of carloads of freight; held, further, under such contract that the first-named or lessor company was a common carrier as to freight transported by it thereunder until the same was placed upon a proper sidetrack and that thereafter the first-named or lessor company was a warehouseman and liable as such.
    2. Bailments—when burden of exoneration on bailee. Where goods are received by a warehouseman or other bailee and they are not delivered over on request, or are not to be found, the burden is upon the bailee to show that the goods have not been lost through his negligence.
    3. Appeals and errors—when ruling upon motion for peremptory instruction waived. Where a plaintiff fails to introduce a document necessary to his case the denial of a motion for a peremptory instruction predicated upon such failure is waived for purposes of review by the subsequent introduction by the defendant of the document in question.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Peoria county; the Hon. L. D. Puterbaugh, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Stevens, Miller & Elliot, for appellant.

      Page, Weak, Hunter & Scully, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

The Peoria & Pekin Union Railway Company, the appellant, owns a line of railroad extending from Peoria to Pekin, in this state, together with an extensive terminal system in the city of Peoria, consisting of main and side tracks, switches, freight and passenger depots, storage and unloading tracks, etc.; and, besides conducting an ordinary freight and passenger business between Peoria and Pekin and the intermediate points on its line, it does an extensive business of transporting or transferring for other railroad companies entering the city of Peoria loaded and empty freight cars from and to the terminal points of such other railroads in Peoria to and from the points of destination of such cars on the tracks of appellant in such city. Appellant also has entered into contractual relations with various other railroad companies, whereby such other companies operate their passenger and freight trains into and' out of Peoria over appellant’s tracks. The Chicago & Alton Railroad Company, appellee herein, operates its trains into and out of the city of Peoria over the tracks of appellant under such a contract, entered into in 1900, by the terms of which appellee was given the privilege of operating its trains over the main tracks of appellant, and was to deliver all freight cars loaded with goods for consignees in Peoria to appellant, to be placed by appellant on storage or in loading tracks of its system convenient for the consignee, such cars to be returned by appellant to the terminal point of appellee after having been unloaded. By the terms of the contract appellee could do no switching over the lines of appellant’s system. Appellee brought this suit against appellant before a justice of the peace to recover upon five different claims for losses of freight from cars which appellee had received from other points on its line or from foreign railroads and had delivered to appellant to be by it transferred to certain unloading tracks to be there unloaded by the consignee, which claims appellee had paid to the parties respectively injured by these losses, namely, the several consignees. Appellee secured a judgment before the justice of the peace and appellant appealed from such judgment to the circuit court of Peoria county. Upon the trial in the circuit court a stipulation was offered in evidence by which it was agreed, in brief, that the total amount of such claims was $116.21; that, as to the first three claims, the loss occurred after the car in question had been placed by appellant on its unloading track and before it had been opened by the consignee for the purpose of unloading; that, in the fourth case, the car in question left San Francisco sealed at both doors, was found to have one seal missing at Kansas City and its place was there supplied with a cleat, was delivered by appellee to appellant in that condition, was so placed by appellant so closed and fastened on its unloading track on Water street in Peoria, and when unloaded by the consignee the following day one door was open and the merchandise in the car was found to be short a part of the original shipment; that, in regard to the fifth claim, the car was retained by appellant, under the directions of appellee, upon its “Hold” tracks for nine days, it having been delivered to appellant with both doors sealed, was placed by appellant with both doors sealed upon the unloading track at the expiration of that time by the direction of appellee, and when unloaded thereafter by the consignee was found to have been broken open and to have lost part of its original contents. It was further stipulated that all of the cars in question were brought into the yards of appellant by appellee; that appellant’s connection with said cars, and its transfer thereof, and the allowance of the same upon its tracks and yards, was under the special contract between appellee and appellant, under which appellee was allowed to run its freight trains into said yards and under which appellant transfers such cars upon its tracks; that appellant received no compensation for the handling of said cars other than as provided for in the said contract; and that, in transferring said cars, appellant in each case acted under the direction of appellee. The cause was tried by the court without a jury upon such stipulation and the contract, offered in evidence, and certain propositions of law submitted. The court held the propositions of law submitted by appellee to be the law governing such case and refused the propositions of law presented by appellant, and entered judgment in favor of appellee for said sum of $116.21, from which defendant below appeals.

While the amount involved in this particular case is small, yet it is of considerable importance by reason of the collateral interests involved. The contract covers twenty-two printed pages of the abstract, and it is therefore not reasonably practicable to reproduce it in this opinion. It seems entirely clear to us that, while appellee is designated in the contract as a “lessee” for convenience in description, and while such contract may be considered to be a lease of the main line tracks of appellant, over which appellee thereby obtained permission to run its trains, yet it is not a lease as to the tracks involved in this case, nor a lease as to the matter of the transfer of carloads of freight by appellant from appellee’s railroad to unloading tracks where the consignee is to unload such cars. Under the contract we have no doubt but that appellant is a common carrier as to such cars of freight, so transported by it, until the same have been placed upon the proper side-track or unloading track, and that from that time until the consignee unloads the car, appellant is a warehouseman and liable as such. By stipulation in this case, it is practically conceded that, in each case, the car had been placed by appellant on the designated unloading track sealed or closed and with its contents in proper condition; that, in each case, the car remained all or a part of the night upon such unloading track before being approached by the consignee for the purpose of unloading it; and that, in each case, when unloaded by the consignee a door of the car was open and a part of the contents were missing. It is therefore clear that, before the loss occurred, the liability of appellant as a common carrier had ceased and that its liability as warehouseman had attached. Appellant argues that by the ninth and twelfth clauses of the last division of the contract between the parties, appellee expressly assumes all liability for damages done to its property under the contract. This is too strong a statement of those clauses, for appellee does not thereby assume liability for damages occasioned solely by the negligence of appellant. If therefore the proof warrants the conclusion that these losses are to be charged solely to the negligence of appellant, then it is not relieved by this contract. But we are disposed to hold that the contract in evidence herein does not cover the relations between the parties after the cars have been placed by appellant upon its unloading tracks, and therefore the appellant is left to its statutory liability as a warehouseman, that is, the liability which the law attaches to a railroad company after it has left its carloads of freight at proper places on its tracks for delivery to the consignees. By the terms of the contract itself, appellee had nothing whatever to do with a car of freight after it was delivered to the appellant. Such car of freight was taken in charge by the employes of appellant and was by them conveyed to and placed upon one of appellant’s unloading tracks. Under the contract the entire charge of such car of freight during that time and until the car, unloaded, had been returned to appellee was in appellant.

The first proposition of law submitted by appellee and held by the court was as follows:

“The court holds in this case that under the evidence the defendant was a common carrier of the cars of the plaintiff and the contents of such cars from the time the same were received by the defendant for the plaintiff in the yards of the defendant and until the same were placed by the defendant upon the unloading tracks of the defendant on Water street ready to be unloaded by the consignee and that after said cars had been placed upon said unloading tracks, the liability of the defendant as to said cars and their contents became that of a warehouseman, in the absence of any contract between the plaintiff and defendant defining and limiting the defendant’s liability as to such cars and their contents during the time stated.”

In onr judgment this proposition was correctly held by the court.

In the third proposition of law submitted by appellee and held by the court, it was held that from the evidence of the receipt of the cars by appellant with the contents intact, and that, when the consignee of the respective cars opened them for the purpose of unloading them, part of the contents was missing, the law presumes negligence upon the part of appellant in caring for said cars and their contents and puts upon appellant the burden of showing that it was free from negligence in the care of said cars and their contents.

Appellant contends that this proposition is erroneous and that, for error in so holding, the judgment should be reversed. We cannot agree with appellant in its contention. That proposition of law has been upheld by numerous decisions in this State and elsewhere; and in Brewster v. Weir, 93 Ill. App. 588, this court said: “The ruling of the court upon the instructions is supported by Cumins v. Wood, 44 Ill. 416, and Funkhouser v. Wagner, 62 Ill. 59, where it is held that, where personal property is placed in the hands of a bailee in good condition and it is returned in a damaged state or is not returned at all, then in an action by bailor against bailee, the law will presume negligence on the part of the latter and will impose on him the burden of showing that he exercised such care as was required by the bailment. The reason of this rule is that often the bailor would have no means of showing how the loss or injury had occurred, or whether the bailee had caused it by his negligence, while the facts would be within the scope of the knowledge of the bailee, or he would know from what sources that could be ascertained.” Edgerton v. C. R. I. & P. Ry. Co., 240 Ill. 311. We consider that the principles laid down in that and other cases are still in force in this State, and that the court below did not err in holding the third proposition of law submitted by the plaintiff below. The authorities in this State are clear that a case is made against the warehouseman or bailee by showing the receipt by such bailee of the goods and their non-delivery upon request, or that they are not to be found when the consignee calls for them, and that the burden is upon such bailee, in this case the appellant, to show that such goods have not been lost through his negligence. If it can show that, it will be exonerated from liability. In this case the facts agreed to in the stipulation cast upon appellant the burden of proving that such losses were not caused by its negligence. Eo defense was made to the prima facie case established by the stipulation, and the judgment was therefore correct. The propositions of law held by the lower court were in accordance with the views here expressed, and the propositions submitted by appellant were not the law applicable to this case.

Appellant assigns for error the action of the court below in refusing to find the issues for defendant below at the close of appellee’s evidence, a motion to that effect having been made by appellant at that time, for the reason that the stipulation introduced in evidence by appellee referred to the contract which had not been offered in evidence by appellee. This error, if any such there was, we must consider to have been waived by appellant, as appellant itself offered the contract in evidence after its motion was refused.

The judgment is therefore affirmed.

'Affirmed.


text:
    Kate Gaffney, Appellant, v. City of Dixon, Appellee.
    Gen. No. 5353.
    1. Negligence—-injury resulting from obstruction in public street. Where an injury occurs from an obstruction in a public street, held, that it was a question of fact for the jury whether from two o’clock in the afternoon until the accident occurred on the same day, was sufficient time for the city in which the street was situated to have had notice of the obstruction; also whether such obstruction was dangerous and whether danger signals should have been placed thereon at night.
    2. Negligence—when doctrine of imputed, does not apply. Where a woman is injured while riding on a public street in an automobile driven by her husband, the negligence of the latter cannot be imputed to her so as to defeat a recovery against the city for concurring negligence.
    3. Contributory negligence—riding in automobile. To charge a wife with negligence in riding in an automobile driven by her husband where she knows that he has an injured hand, she must also know that because of such condition he was unable to manage the automobile with ordinary safety.
    4. Streets—what not notice of disrepair. Knowledge obtained by an alderman while engaged about his private affairs and not acting as a member of any committee having authority over streets, of the existence of a dangerous obstruction in a street, is not notice to the city.
    Action in case for personal injuries. Appeal from the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    John E. Erwin, for appellant.
    Mark 0. Keller, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

On the night of July 29,1909., between 8:30 and 9 o’clock, Kate Gaffney was riding in the rear seat on the left side of an automobile running south on College avenue, a public street in the city of Dixon, and George Schorr in the front seat on the left side of the automobile, and Michael Gaffney, her husband, was at the right of Schorr, driving the auto. Julia Schorr was in the seat with Mrs. Gaffney. When at a point about seventy-five feet south of where Second avenue would intersect College avenue, the right front wheel of the automobile struck an obstruction. The automobile was turned against a telephone pole, and Mrs. Gaffney’s hand or wrist was caught between the pole and the automobile and injured. She brought suit against the city to recover for the injury so sustained, and filed a declaration containing adequate averments to admit proof of the facts attending the accident and the effects of the resulting injury. There was a trial and a verdict of not guilty, upon which judgment was entered. Erom this judgment, she prosecutes this appeal.

The obstruction consisted of one wagon load of sand and gravel deposited near the curb on the west side of the avenue. Its highest point was variously estimated by the witnesses. Some testified it was six or seven inches high, others that it was from eighteen inches to two feet. Appellee had nothing directly to do with placing it there, and but slight notice, if any, of its being there. At some date, not stated, prior to the accident, appellee’s council adopted a resolution directing that an ordinance be drafted for the building of a sidewalk on the west side of College avenue, from First street to Second street. The accident occurred opposite the grounds of Dixon College, beween First and Second streets. The adoption of this resolution did not bind appellee to any course of action, as its council might or might not adopt the ordinance after its preparation. The president of the college learned of the proposed ordinance and conferred with the mayor and a committee, whether the committee having the resolution for drafting the ordinance in charge or some other committee does not appear, and, as a result of the conference, the president of the college was permitted to repair the walk opposite the. college grounds. He engaged a contractor to make the repairs, and at about two o’clock on the afternoon of the accident the load of sand and gravel was deposited in the avenue near the curb.

There is no proof that up to this time any officer of appellee had knowledge that it would be necessary to put any sand or gravel in that vicinity, or notice that any would be deposited in that portion of the street traveled by teams and automobiles. Therefore, it was a question of fact for the jury whether from two o’clock in the afternoon until the accident occurred was sufficient time for appellee to have had notice of the obstruction, and it was for the jury to decide whether the obstruction was in any way dangerous to public travel, as ordinarily and reasonably conducted, and whether appellee, in the exercise of ordinary care in providing a reasonably safe street for public travel, should have placed danger signals at that point at night.

On the question of notice to appellee the evidence shows that about 5 :30 o’clock in the afternoon of the day of the accident, an alderman of appellee saw the obstruction, which, he testified, was not over six or seven inches high, and next to the curb. If notice to an alderman is notice to the city, then appellee had notice. We are not disposed to hold that notice to an alderman of an obstruction in the street is notice to the city, unless he is a member of some committee having authority over the streets. We cannot subscribe to the doctrine urged by appellant, that every alderman when about the city, attending to his own business, and not engaged in city business, is such a representative of the city that his observation of an obstruction in a street is notice to the city of that obstruction. Looney v. City of Joliet, 4-9 Ill. App. 621. The action of aldermen, to bind a city, must be taken in council meetings duly organized, or where, as a member of a committee, some authority has been conferred upon him. Then, in the absence of proof that the alderman who saw the obstruction was a member of some committee to whom some duty connected with appellee’s streets had been committed, either by ordinance, or by some other action of the council, we fail to see how what the aider-man saw on his way home from work can be held to be notice to the city. Whether, before the accident to appellant, a sufficient time had elapsed for the city to have ascertained the presence of the obstruction, and decide what, if anything, should be done to protect public travel, was also a question for the jury.

The question of the city’s liability for the injury to appellee was very close; therefore, it was important that the jury should have been accurately informed as to the law bearing on the facts appearing in the evidence. The court refused an instruction requested by appellant, which would have informed the jury, that, if the evidence preponderated but slightly in favor of appellant’s case, it would be sufficient to warrant them in finding the issues in her favor. Ho other instruction suggested to the jury the fact that only a slight preponderance of the evidence was required to entitle the plaintiff to recover, If this were the first time the question had been presented for the judgment of a court, we might entertain some doubt as to the accuracy of such an instruction. In Taylor v. Felsing, 164 Ill. 331, the court said that the law only required that a preponderance of the evidence should be in favor of the plaintiff, and cited Mitchell v. Hindman, 150 Ill. 538. The court said in Chicago City Ry. Co. v. Fennimore, 199 Ill. 9, that there was no valid objection to such an instruction, citing the Taylor case. The same instruction was also approved in City of Chicago v. Sullivan, 139 Ill. App. 675; and in Chicago City Ry. Co. v. Bundy, 210 Ill. 39, the court said that such an instruction was substantially correct, again citing the Taylor case. We, therefore, conclude that, under the state of proof shown by this record, and in the absence of any other instruction containing the principle announced in this instruction, it was reversible error to refuse it. There was no error in the refusal of the court to give appellant’s third, fourth, sixth and seventh instructions, as there was no evidence upon which to base the third and seventh, and the sixth omitted the element of constructive .notice, and the fourth contained an abstract proposition of law which it was not proper to give under the evidence.

The proof shows that appellant’s husband, who was driving the auto when she was injured, had met with an accident and broken his arm a few months before, and could not completely close the hand of the injured arm on account of the contraction of the cords, although he testified he had the same strength in the arm as before, and used it freely in everything that he did. Appellee contends that he could not operate the steering apparatus of the automobile as well as he could have done had he not sustained such injury; and that it was on that account, that, when the wheel struck the obstruction, it turned towards the curb and appellant’s hand came in contact with the telephone pole. Upon that theory appellee asked and the court gave an instruction which told the jury, that, if they believed from the evidence that plaintiff was injured while she was riding in an automobile owned and driven by her husband, and that she was, at the time said injury occurred, in the custody and care' of her husband, and that her husband was not in a condition physically to control said automobile with ordinary care, and that plaintiff had knowledge of his physical condition at and prior to the time of her injury, and if they believed from the evidence that her husband’s physical condition contributed to the accident complained of, then they should find the issues for the defendant. Appellee relies principally on the announcement made in City of Joliet v. Seward, 86 Ill. 402, to support the claim that one who has put himself in the care of another is responsible for the negligence of such other person and cannot recover for an injury to which the negligence of that person has contributed. If that contention is supported by the Seward case, a different rule has since been laid down in W., St. L. & P. Ry. Co. v. Shacklet, 105 Ill. 364; Consolidated Ice Machine Co. v. Keifer, 134 id. 481; Chicago City Ry. Co. v. Wilcox, 138 id. 370; C. & A. R. R. Co. v. Vipond, 212 id. 199; Nonn v. Chicago City Ry. Co., 232 id. 378. It is said in the Eonn case that “Whatever may be the doctrine of some of the earlier cases in other jurisdictions, not only our own recent decisions, but the great weight of authority, is to the effect that where a person injured is without fault and has no authority over the driver of a private conveyance, the negligence of the latter cannot be imputed to the injured person so as to defeat the recovery against a third party for the concurring negligence of the driver and such third party.” In Yeates v. I. C. R. R. Co., 241 Ill. 205, it was said that “The negligence of a driver of a vehicle not under the control of the person injured is not to be imputed to him,” citing Union Traction Co. v. Leach, 215 Ill. 184. Under these authorities it is evident that the instruction did not state a principle of law applicable to the facts. Moreover, the instruction does not relate alone to the relation of husband and wife or driver and person driven, but undertakes to state a case where appellant herself would be negligent, and thereby defeat her recovery. To make the wife negligent under the circumstances stated in the instruction, it would not only be necessary that appellant should know what her husband’s physical condition was, but she would also know or would be required, in the exercise of ordinary care, to know that because of that condition he was unable to manage the automobile with ordinary safety. Under this instruction appellant, knowing that her husband had had his arm broken, would be barred from recovery even if she did not know that as a result of such accident, he was unable to control the automobile with ordinary care. Again, even if the evidence had shown that these conditions existed, still it was for the jury to say whether appellant was in the exercise of ordinary care for her own safety while riding under the control of a driver who had such-, physical disability. This instruction did not leave that question of fact to the jury, but in effect told the jury that such conduct on the part of appellant was lack of due care. This was calculated to prejudice the case appellant submitted to the jury.

For the errors indicated.in the ruling of the court on the instructions, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Frank R. Crane, Appellant, v. Village of Roselle et al., Appellees.
    Gen. No. 5360.
    1. Evidence—what incompetent upon value of attorney’s fees. Where services are performed by Chicago lawyers in obtaining the dissolution of an injunction in DuPage county, evidence as to what such services were reasonably worth in Chicago is incompetent.
    2. Evidence—how what is reasonable attorney’s fees determined. To show what is a reasonable solicitor’s fee it is not sufficient to show what is the reasonable and customary charge, merely; the inquiry should be what is usually and customarily charged and paid for like services in the court where such services were rendered, where the fee is the subject of contract or where the matter is between parties competent to contract.
    3. Evidence—when courts not bound by, as to value of legal services.
      Courts may and are entitled to form an independent judgment on the question of solicitor’s fees.
    4. Injunctions—what solicitor’s fees should not he allowed as damages upon dissolution. Where two solicitors are employed in obtaining the dissolution of an injunction, either of whom was competent, damages should not be assessed for more than what would have been a reasonable fee for one solicitor.
    Bill in equity. Appeal from the Circuit Court of DuPage county; the Hon. Mazzini Slussee, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    John E. Owens, for appellant; W. J. Stapleton, of counsel.
    F. A. Kathje and William E. Burleigh, for appellees.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Frank E. Crane filed a hill in equity to restrain the village of Eoselle, the village trustees and the highway commissioners from proceeding with the construction of certain drains, which it was alleged would convey the sewage of the village into a certain stream of pure water running across complainant’s farm, and which would pollute said stream and destroy its use by him in watering his live stock; and to restrain the defendants from trespassing on his land. He had a temporary injunction. The defendants answered denying that the drains in question were to he used as sewers or were to he connected with houses in the village, and alleging that the only purpose of said work was to carry off surface drainage. Defendants moved for the dissolution of the injunction. Affidavits and counter affidavits were filed; the motion was argued; the injunction was dissolved and the hill was dismissed without prejudice. By leave of court defendants filed a suggestion of damages asking an allowance of $500 for their solicitor’s fees in procuring a dissolution of the injunction. Crane appealed to the Supreme Court where the decree was affirmed on the ground that the allegations of the hill were not proven by such clear and satisfactory evidence as to warrant sustaining the temporary injunction. Crane v. Village of Roselle, 236 Ill. 97. Thereafter by leave of the circuit court the suggestion of damages previously filed was amended so as to claim in addition $250 for solicitor’s fees for the defendants in the Supreme Court and $200 for expenses caused to defendants by the injunction. On a hearing of the suggestion of damages the court denied the claim for solicitor’s fees in the supreme court; allowed defendants $500 for their solicitor’s fees in procuring a dissolution of the injunction, and $150 for expenses caused to the village by the injunction. Crane prosecutes this appeal from that order.

The evidence is insufficient to support the allowance for solicitor’s fees. Defendants employed two solicitor’s practicing in Chicago and the testimony related quite as much to what would be a reasonable fee in Chicago as to the reasonable fee for such services in DuPage county where the litigation was. All the testimony concerning usual and customary charges for such services in Chicago was immaterial. Defendants employed two solicitors, not partners, and it is obvious from their testimony that either one of them was entirely competent to attend to this case alone, and while defendants had a right to employ as many solicitors as they chose, complainant could not be required to pay more solicitor’s fees than were reasonably necessary to conduct the litigation for defendants. Defendants did not prove how much they agreed to pay their solicitors, nor that there was no contract fixing the compensation. If the price was previously fixed by agreement defendants could not recover more from Crane. Defendants did not prove that they had not paid their solicitors in full nor how much they paid them. If defendants paid their solicitors in full they could recover from complainant no more than the amount so paid. Defendants proved in general terms that $500 or some larger sum was the usual and customary charge for such services in DuPage county as these two solicitors rendered. This is not sufficient, as held by us in Chicago & Southern Traction Co. v. Gaines, 129 Ill. App. 160, on page 166, where authorities are cited. The inquiry should he what is usually and customarily charged and paid for like services in the court where said services were rendered, where the fee is the subject of contract or where the matter is between parties competent to contract. In other words, if the defendants had gone to competent solicitors who practice law in DuPage county, and sought to make a contract with them for such services, upon what terms as to compensation would competent solicitors have accepted the employment ? The course pursued here would permit friendly attorneys who are likely to be interested themselves in fees for legal services to fix the compensation by what they would like to have rather than by the same fee for which they would contract to do the services themselves if they knew that the party could employ others. We are of the opinion that the estimates of the witnesses were extravagant. The village of Roselle had at the time less than 300 inhabitants. The matter was within a small compass and could not require a great deal of time for sufficient preparation. The hearing occupied about three hours. Complainant is not required to pay for the .time taken by these Chicago lawyers in going from Chicago to the place of holding court on the many occasions testified to by them. We cannot conceive that it was reasonably necessary for one of these solicitors to spend twenty days and the other ten days upon this motion to dissolve the injunction. While the opinions of witnesses as to the value of such services are receivable and are entitled to due weight the courts are also well qualified to form an independent judgment on such questions. Goodwillie v. Millimann, 56 Ill. 523; Metheny v. Bohn, 164 Ill. 495. It is the duty of the courts to see that due regard is given to the rights and interests of the parties to the suit and that their decrees do not represent merely extravagant opinions of the attorneys interested in the general subject as to what would be just and proper in a given case. McMannomy v. C. D. & V. R. R. Co., 167 Ill. 497. We are of opinion that $500 was an excessive allowance against complainant for these services.

The opinion of the court dissolving the injunction was announced on November 15. For some reason the order was not signed until November 29. The proof seems to show that on December 10 one of the ditches was still open and uncovered with tile in the bottom. The decree finds that the ground became frozen and that the title was covered by the village with frozen ground and that because this material was frozen the frost penetrated to and destroyed a certain number of feet of tile and it became necessary in the following spring to open the ditch and remove the tile and lay new tile; and the court allowed $150 for that expense. We do not think that the proof shows that complainant should be held responsible for that loss. If it was too late in the season to properly cover these tile, they should not have been covered till the following spring. Apparently the loss was due to the negligence of the village in covering the tile with frozen earth so late in the year. Moreover, no one proved what the village expended in having this work done the following spring. A witness testified that he had seen the bills rendered for the work. This was merely hearsay, and there was no other proof. The proof did not warrant the allowance of the $150.

The order is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Clara B. Wiemers, Appellee, v. John Cole, Appellant.
    Gen. No. 5362.

      Verdicts—when set aside as against the evidence. A verdict not supported by any evidence in the cause will be set aside on review.
    Action commenced before justice of the peace. Appeal from the County Court of Lake county; the Hon. DeWitt L. Jones, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.

      Chipman & Jackson, for appellant.
    Arthur Bulkley and Cooke, Pope & Pope, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Clara B. Wiemers brought this suit before a justice of the peace of Lake county against John Cole to recover one half the amount of money which she claimed to have paid for costs and for printing, in two cases in the Supreme Court; and obtained a judgment, from which Cole prosecuted an appeal to the County Court of said county, where a trial resulted in a verdict for Clara B. Wiemers for $135. A motion for a new trial was overruled, judgment was entered on the verdict and Cole prosecutes this further appeal.

In one of the cases in the Supreme Court, the parties to this suit were joint appellants, and in the other, they were defendants in error with Rose A. West, George H. Brean and Frank Grost. The appeal suit was from a judgment on a special assessment for sale of a lot owned by appellant and of four lots owned by appellee. The writ of error was to review the judgment of the county court in sustaining objections to a judgment for sale on the first installment of the assessment above mentioned.

The evidence showed that appellee paid for a transcript in the County Court, costs in the cases in the Supreme Court, and for printing abstracts etc. To establish appellant’s liability for one half the costs of the suits in the Supreme Court, appellee introduced in evidence, over appellant’s objections, what purported to be typewritten copies of executions, but there was no proof that they were copies of executions. Had they been executions, they would not alone have been proof, competent to establish appellant’s liability for such costs, as the records of the judgments rendered, or certified copies thereof were necessary to establish such liability. Weis v. Tiernan, 91 Ill. 27; Hurd’s R. S., sec. 13, chap. 51, 1908. There was no proof warranting secondary evidence. There was no proof of the judgments nor that they had been satisfied, nor that in the writ of error the other defendants had not contributed their share of the costs, nor that they were insolvent. The proof did not establish appellee’s liability for any portion of the judgment covering the costs in the Supreme Court, and, had such liability been established, there was no proof of the proportion of the costs that appellant was liable to pay.

Appellee could only enforce contribution of half the costs of the transcript in the County Court, and the expense of printing in cases in the Supreme Court, by showing that she had an agreement with appellant to pay half the same, as they could hot be construed as a common burden. Hayes v. Morrison, 38 N. H. 90. As to whether there was such a contract, the evidence was conflicting, there being evidence in support of appellee’s contention that there was, and proof in support of appellant’s contention that there was not. As this case must be tried by another jury, we refrain from expressing an opinion as to where the preponderance of the evidence was.

The bill for printing introduced in evidence amounted to $160.25, and the proof shows that appellee had four suits pending in the Supreme Court at the same time, in which printing was done by the same firm. There was evidence by appellee’s own witnesses that some of the charges in the bill were for printing in cases other than those in which appellant was interested, and the charges for printing in those cases to which he was a party were not clearly identified. Therefore, it cannot be determined what items of the hill were included in the verdict, or that some charges for work done in other cases than those in which appellant was interested were not included therein.

As the judgment is not supported by the evidence, it is reversed and the cause remanded.

Reversed and remanded.