text:
    Florence Bacon, Administratrix, Appellee, v. Emerson-Brantingham Company, Appellant.
    Gen. No. 6,553.
    1. Workmen’s Compensation Act, § 4

      —when engagement in extrahasardous employment shown. Evidence held sufficient to show that a painter in an agricultural implement manufacturing plant, who was ordered to leave his ordinary work and go to another part of the building and dip some eveners which had been piled high on a truck, which he was required to move to get into position for work, and was killed by a fall of the eveners upon him, was engaged in an extrahasardous employment, within section 3 of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. IT 5475(3)].
    2. Pleading, § 38

      —how construed as to pleader after verdict. After verdict, the rule by which pleadings are construed against the pleader is reversed, and anything necessary to be proved, which may fairly be inferred from the declaration, will be regarded as alleged.
    3. Pleading,- § '466

      —when declaration sufficient after verdict. It is sufficient after verdict if the allegation in a declaration is good in substance.

      4. Pleading, § 466

      —when defect, imperfection or omission cured by verdict. If there is a defect, imperfection or omission in any pleadings, whether in substance or in form, which would have been a fatal objection on demurrer, yet, if the issue joined be such as necessarily required on the trial proof of the facts so defectively stated or omitted and without which it is not to be presumed that either, the judge would direct the jury to give or that the jury would have given the verdict, such defect, imperfection or omission is cured by verdict.
    5. Workmen’s Compensation Act, § 12

      —when defendant may not question sufficiency of averment as to election not to be bound by. The defendant, in an action for the death of an employee, is not in position to question the sufficiency of an averment that 'defendant had elected not to be bound by the Workmen’s Compensation Act and had taken due and proper steps required by law not to be bound thereby, where a verdict has been rendered on the issue presented by a plea of general denial.
    6. Master and servant, § 532

      —what does not constitute statement of new cause of action for negligent death. There was no statement of a new cause of action, in an additional count in an action for the death of a painter in an agricultural implement factory, due to the fall of wooden eveners from a truck upon him, where the original count alleged that defendant carelessly and negligently caused deceased to work in and about overloaded trucks, and the additional count alleged that defendant carelessly and negligently caused deceased to work away from his usual employment and in and about overloaded trucks.
    7. Appeal and error, § 870

      —what abstract must contain. The contention that the certified copy from the secretary of the Industrial Board of an employer’s election not to provide and pay compensation under the Workmen’s Compensation Act was not under seal is untenable where there is nothing in the abstract to advise the court whether or not this is so.
    8. Damages, § 244

      —when inaccuracy in instruction is immaterial. The fact that instructions on damages, in an action for negligent death, are not strictly accurate and that a jury might be impelled to award excessive damages is immaterial where the damages awarded are not excessive.
    9. Workmen’s Compensation Act, § 12

      —when instruction on effect of rejection of by employer is not reversibly erroneous. In an action against an employer for damages for the negligent death of an employee, due to the fall of wooden eveners off a truck, an instruction that if defendant had rejected the Workmen’s Compensation Act it was no defense that decedent assumed the risk, or that his death was caused by the negligence of a fellow-servant or that he came to his death “by any negligence on his part,” the omission of the word “contributory” before negligence was harmless error, where special interrogatories were submitted at the instance of defendant and a special finding rendered that defendant did not use reasonable care to furnish deceased a reasonably safe place to work, that the truck was heavily overloaded and not properly braced, and that defendant knew such fact at the time.
    10. Instructions, § 151

      —when refusal proper. It is not error to refuse instructions covered in the main charge.
    11. Workmen’s Compensation Act, § 2

      —what is effect of rejection of by employer. In an action at common law against an employer, who is engaged in an extrahazardous business within the Workmen’s Compensation Act and has rejected the act, if the employer was guilty of any negligence, it is immaterial whether the employee was negligent or how much he was negligent.
    12. Master and servant, § 737

      —when negligence of foreman is question for jury. In an action against a factory owner to recover for the negligent death of a painter who was killed by the fall upon him, from a truck, of a load of eveners, which he had been ordered to dip, evidence held to present a jury question as to whether the foreman negligently left the truck with two of the four stakes out and in such a condition that the load would fall, if disturbed.
    Appeal from the Circuit Court of Winnebago county; the Hon. Claire C. Ewards, Judge, presiding. Heard in this court at the April term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 10, 1918.
    Rehearing denied November 13, 1918.
    Mac Ches net, Becker, Angerstein & Rollo and Lathrop, Lathrop & Brown, for appellant; Nathan W. MacChesney, Thomas C. Angerstein, Robert P. Rollo and George W. Angerstein, of counsel.
    E. D. Reynolds, for appellee.

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

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

George Bacon, 28 years of age, husband of appellee, Florence Bacon, had been in the employ of the appellant company for several months in its factory at Rockford, Illinois, where it was engaged in manufacturing agricultural implements in several buildings there located containing power-driven machinery used for such work. While so employed April 5, 1916, he received fatal injuries from the falling of a pile of eveners loaded on a truck about which he was working, on the order of appellant. This action on the case was brought by his administratrix to recover damages for his death. There was a judgment for the plaintiff on a verdict of $4,500, from which this appeal is prosecuted.

The case was begun and prosecuted on the theory that appellant was engaged and the deceased employed in an extrahazardous business as defined in section 3 of the Workmen’s Compensation Act of 1913 [Hurd’s St. 1913, page 1206, Callaghan’s 1916 St. Supp. ¶5475(3)], and therefore the rights of the parties controlled by the provisions of that act; that appellant had elected not to provide and pay compensation thereunder by filing notice of such election with the Industrial Board of this State, and posting such notice as provided in clause b of section 1 of the Act [Callaghan’s 1916 St. Supp. ¶ 5475(1)], and therefore was deprived in this action of any defense that deceased assumed the risk of the employment; that his death was caused in whole or in part by the negligence of a fellow-servant; or that the injury or death was proximately caused by his own contributory negligence. Appellant offered no evidence and asks a reversal because it says (1) the evidence does not show that deceased was at the time engaged in an extrahazardous business; (2) that there is no sufficient averment in the declaration that it had rejected the provisions of the act; (3) that there is no sufficient evidence that it had rejected those provisions; (4) that the court erred in instructions to the jury given on appellee’s request on the measure of damages, and on the effect of deceased’s negligence as the proximate cause of the injury; and (5) that appellant was not negligent, and deceased was, and the death was caused by the negligence of deceased or was the result of an accident for which no one is to blame. It is not claimed that the verdict and judgment are excessive if appellee is entitled to any judgment.

It appears from the evidence, without contradiction, that appellant was engaged in the manufacturing business, as before stated, and that deceased was there employed as a painter; that his usual place and work were in the grain drill department on the second floor, blacking and retouching discs and dipping small stuff; that at about 15 minutes past 7 on the morning of April 5, 1916, he was, while on the second floor, ordered by appellant’s foreman to go down to the first floor of the building to dip some wooden eveners. He had done such work before, but not often. It was not his regular work or his regular place to work. A few moments afterwards a loud crash was heard, and deceased’s body was found lying under a truck load of seasoned oak eveners which had fallen or slid off the top of a truck. There was no eyewitness to the accident. His head was towards the truck, and the eveners were lying crossways over his body. The truck was about 4 feet long and 2 feet wide, two wheels at one end and one at the other, each wheel working on a swivel. There were no handles to the truck, but at each of the four comers was a socket for a stake. The eveners were about 3 feet in length, 3 to 3% inches wide, and 1% to 2 inches thick, of seasoned hard oak wood. The ends were sharp, and the sides slippery. Bach evener weighed about 6% pounds, and there were 346 of them on the truck. The platform of the track was 1% to 2 feet above the floor. It had been loaded by workmen in the wood shop the day before and moved into the room where deceased was directed to work. The ordinary load for such a truck was about 3 feet high. Additional eveners had been loaded on this truck probably after it came from the wood shop, so that the load stood about 4% feet high, or at its top from 6 to 7 feet above the floor. Deceased had nothing to do with loading the truck or putting it in the place where he found it. One witness, the foreman, testified that there were stakes in each of the four sockets after it was removed from the wood room the day before, but when deceased’s body was found there was no stake in either of the two sockets next to him, but there were two in the opposite side of the truck. If there were other stakes when deceased approached the truck none were found at or near the place by the people that saw deceased and the eveners there after the accident. It was evident that deceased had moved the truck a few feet to get it in position for his work.

Appellant’s first contention that deceased was not employed in extrahazardous business must be answered by reference to clauses 1 to 8 inclusive of section 3 of the Workmen’s Compensation Act, and decisions of the court thereunder. Counsel have not specially referred to those clauses, or noted any such decisions. The Supreme Court has discussed those provisions in Uphoff v. Industrial Board of Illinois, 271 Ill. 312 [13 N. C. C. A. 80]; Marshall v. City of Pekin, 276 Ill. 191; McLaughlin v. Industrial Board of Illinois, 281 Ill. 104; Hahnemann Hospital v. Industrial Board of Illinois, 282 Ill. 316; and there is an extensive note on the subject in L. R. A. 1917 D 147. Without discussing the statute and authorities construing it, it is sufficient to say we are of the opinion the evidence shows that appellant was at the time engaged in what is, in the act, termed an extrahazardous business, and that deceased was employed in that ex-trahazardous business, notwithstanding there may have been no power-driven machinery in the room where he was working when he received the injury.

Appellant’s second point is based on the pleadings. It is conceded by appellee’s counsel that before the amendment of 1917 (section 3%. of the present Workmen’s Compensation Act), the plaintiff must both aver and prove the rejection of the provisions of the act; therefore that the inquiry whether that was done is pertinent. The original declaration contained five counts, to which the general issue was pleaded. During the introduction of evidence, and at its close, appellant’s counsel repeatedly urged that there was no sufficient allegation in the declaration that it had rejected the provisions of the act. The court withdrew from the consideration of the jury the first four counts, which action is not here questioned. That left standing the fifth count, which in its averment as to the rejection of the act read as follows: “That prior to the date aforesaid, the said defendant had elected not to be bound by a certain statute of the said State of Illinois commonly known as to wit: The Workmen’s Compensation Act, and had taken due and proper legal steps required by law not to be bound thereby, and that said election not to be bound thereby was in full force and effect on the day aforesaid.”

It was insisted in the trial court and is argued here that the averment is not one of facts but is only the statement of a conclusion of the pleader, and therefore bad pleading. We need not consider whether this objection would have been good had it been made on demurrer to that court. After verdict the rule by which pleadings are construed against the pleader is reversed, and anything necessary to be proved, which may fairly be inferred from the declaration, will be regarded as alleged. (Wagner v. Chicago, R. I. & P. Ry. Co., 277 Ill. 114.) It is sufficient after verdict if the allegation is good in substance. Supolski v. Ferguson & Lange Foundry Co., 272 Ill. 82. If there is a defect, imperfection or omission in any pleadings, whether in substance or in form, which would have been a fatal objection on demurrer, yet, if the issue joined be sneh as necessarily required on the trial proof of the facts so defectively stated or omitted and without which it is not to be presumed that either the judge would direct the jury to give or that the jury would have given the verdict, such defect, imperfection or omission is cured by verdict. Gerke v. Fancher, 158 Ill. 375. We think appellant is not. in position to question the sufficiency of the averment after a verdict rendered on an issue presented by its plea of general denial. But appellee by leave of court, filed an additional count in which was set out in detail the steps taken to comply with the provisions of the act in electing not to he bound by it. Appellant pleaded the general issue and the statute of limitations to this additional count. Appellee demurred to the plea of the statute, and the court sustained the demurrer. It is argued that the additional count stated a new cause of action, and therefore the demurrer should have been overruled. In more fully stating the facts in relation to appellant’s election, it will be seen from what we have already said that we do not regard it a statement of a new cause of action. But in the additional count it is alleged that the defendant “carelessly and negligently caused the said George Bacon to work away from his usual employment and in and about said overloaded trucks,” which appellant says is an allegation of a negligent order, and claims there was no such allegation in the original declaration. But in said original count five it is alleged that the defendant “carelessly and negligently caused the said George Bacon to work in and about said overloaded trucks.” No new cause of action was stated in the additional count, and the court did not err in its rulings on the questions raised thereunder.

Appellant’s third point is based on the statement of its counsel that a certified copy from the secretary of the Industrial Board of appellant’s notice of election not to provide and pay compensation under the act was not under seal. It was admitted in evidence as plaintiff’s exhibit “B” over appellant’s objection that it was not competent under the issue, and was not properly certified, and did not bear the seal of the Industrial Board but merely had the word “seal” written on it. The exhibit is not shown in the abstract. The court had the original document before it. We cannot say that the certificate did not bear a proper seal from the mere allegation of appellant’s counsel in the court below and here that it was deficient in that respect with nothing in the abstract to advise us whether that is so or not. This is a sufficient answer to an objection that is purely technical.

The fourth point is that plaintiff’s instructions four and seven on the measure of damages did not limit the jury to damages for pecuniary loss', but left them to assess such damages as they might think fair and just. The seventh, which reads as follows, “The court instructs the jury that, if they find for the plaintiff, they will assess the plaintiff’s damages at such sum as will be a fair compensation, with reference to the pecuniary damages resulting from such death to the wife and next of kin of George Bacon, deceased, not exceeding the sum of $10,000” is assumed to be especially bad, and in conflict with the law as announced in North Chicago Rolling Mill Co. v. Morrissey, 111 Ill. 646. The instruction in that case told the jury if they found the defendant guilty they might “give such damages as they shall deem a fair and just compensation for the pecuniary loss resulting from such death to the widow and next of kin of deceased, not exceeding $5,000.” The criticism of the court on that feature of the instruction was that it allowed the jury to give such damages as they should deem a fair and just compensation regardless of the proof. There are numerous instructions found in Illinois cases on this subject that should be examined and compared with those here in question, if there was any contention or room for contention, that the verdict is excessive. But even assuming that plaintiff’s instructions are not strictly accurate statements of the law governing the assessing of damages, and that a jury might under such instructions be impelled to award larger damages than the evidence warranted, still, considering the age of deceased, that he was a sober, industrious man, and left surviving a widow and a minor daughter 6 years old, it is so apparent that the damages assessed are not excessive that the subject requires no further consideration.

The plaintiff’s eighth instruction read:

“The court instructs the jury that if you find from the evidence that George Bacon, plaintiff’s intestate was killed while working in the line of his duty for the defendant company; and if you further find from the evidence that the said defendant company had prior to the 5th day of April, 1916, filed with the Industrial Board of the State of Illinois its refusal to accept the provisions of the Workmen’s Compensation Act of the State of Illinois, and had not withdrawn said notice prior to the time of the death of the said plaintiff’s intestate, then you are further instructed that it is no defense in this case to claim that the said decedent assumed the risk, or that his death was caused by the negligence of a fellow-servant, or that he came to his death by any negligence on his part.”

It was an attempt to state the defenses forbidden by the statute but omitted the important word “contributory” qualifying negligence, and left the instruction open to the objection that it might be understood that the defendant would still be liable if the injury was solely caused by the negligence of deceased. There is a difference between contributory negligence and sole negligence. The court erred in giving that instruction, and the inquiry, as in all cases of error, is whether it might have harmed, or did harm, the adverse party. This must be answered by reference to the record. We find that the court gave seventeen instructions for the defendant in which he repeatedly told the jury, in varying ingenious language that able counsel used in drafting them, that the defendant could not be found guilty and was not liable unless the proof showed it guilty of the negligence charged in the declaration. This supports an inference that the error might not have harmed appellant. But at the instance of appellant special interrogatories were submitted, which the jury answered, specially finding (1) that the defendant did not use reasonable care to furnish deceased a reasonably safe place in which to work; (2) that the truck was overloaded and not properly braced; and (3) that the defendant at the time knew that fact. We conclude under these circumstances that the error in not distinguishing in the instruction between negligence and contributory negligence is affirmatively shown not to have injured appellant. It is clear that the jury understood and acted on the law requiring allegations and proof of negligence of the defendant to sustain a verdict for the plaintiff. There are other suggestions of error in instructions, but none that require special notice. The court refused some instructions offered by appellant, but they were sufficiently covered by those given. Taken as a whole the instructions, except as above stated, were as full and fair to the defendant as should be asked.

It is argued under the fifth point that the evidence shows no negligence on the part of appellant, and that deceased, himself, was negligent in not perceiving the situation and guarding against it. Many cases are cited and discussed in which defenses of contributory negligence and assumed risk were permitted. The language of courts in that class of cases must be read with that difference of law in mind. In the present case, if appellant was guilty of any negligence it is entirely immaterial whether the deceased was negligent, or how much he was negligent. If it was entirely Ms negligence, there was no room to hold appellant negligent at all; but if the negligence of deceased and appellant contributed to the injury, it does not matter in what proportion, appellant is liable. It seems quite clear if appellant left the load of eveners in the condition above described so they would fall if disturbed, and then sent decedent, unacquainted with the situation, to work upon it, it was guilty of some negligence; it is hardly contended that it would not be, under that' condition; but it is urged that the load was not left in that condition; that four stakes were in the sockets at the last known of it by appellant’s foreman, and that he might well have believed that they were still in there, and the load protected. A fair question for the jury was thus presented. The testimony of the foreman that those stakes were in place on the afternoon before was in conflict with the admitted fact that at the time of the injury they were not there, or thereabouts. It was within the province of the jury to find that the foreman was mistaken about seeing those stakes in that particular truck the afternoon before the injury. Their general verdict, strengthened by their special findings, makes it clear that they believed he was mistaken, and we do not think the trial court erred in accepting that finding of the jury. After a careful consideration of the evidence we do not think it is our duty or privilege to reverse the judgment on the ground that the jury erred in finding the defendant guilty of some negligence that contributed to the injury. Finding no reversible error in the record, the judgment is affirmed.

IAffirmed.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    Mueller Grain Company, Appellee, v. Lake Erie & Western Railroad Company, Appellant.
    Gen. No. 6,562.
    1. Carriers, § 30

      —what law governs rights under contract for interstate shipment. The rights and liabilities of a contract for an interstate shipment of grain depend upon the acts of Congress, the bill of lading, and the common-law rules as accepted and applied in federal tribunals.
    2. Carriers, § 96

      —when negligent in accepting shipment. A carrier is guilty of negligence in accepting a shipment when it knows, or ought to know, that it cannot handle the shipment to the destination in a reasonable time.
    3. Cabbibbs, § 102

      —when not relieved of duty to give notice of conditions that may cause delay in delivery. Public knowledge of congested traffic conditions does not relieve the carrier of the duty to give actual notice to the shipper of conditions that may cause delay in delivery.
    4. Carbiers, § 102

      —when negligent in not giving notice of conditions causing delay. A carrier which accepts a shipment of com with knowledge of conditions causing a delay in transit, and gives no notice to the shipper that the com cannot or may not he carried to its destination in time, is guilty of negligence, where the com deteriorates in quality because of a delay in transit, even though the cause of the delay was something beyond its control.
    5. Carriers, § 102

      —what is measure of damages for deterioration of com due to unreasonable delay. The measure of damages applied in actions for negligent injury while a consignment is in transit, which is the difference between the market value of goods at the time and place of delivery in an uninjured condition, and their value in the depreciated condition in which they were delivered, should be applied in an action to recover damages for loss in quality and quantity in corn, alleged to be due to heating and spoiling because of unreasonable delay in transit.
    6. Carriers, § 107

      —when evidence as to grade of corn at point of shipment is inadmissible in action for damages for deterioration due to delay. In an action against a carrier to recover damages for loss in quality of com due to deterioration caused by delay in transit, evidence as to whether the corn raised in the district at the point of shipment the previous year in general graded a fair and average crop and that the crop of such year was one of the poorest the country had produced, was properly excluded, there being no question about the grade of the com at the point of shipment.
    7. Carriers, § 107

      —what evidence as to cause of delay properly excluded. In an action against a carrier to recover damages for loss in quality of corn due to deterioration caused by delay in transit, evidence that congestion in traffic caused the delay was properly excluded.
    8. Appeal and error, § 1498

      —when exclusion of evidence is harmless error. The exclusion of proper evidence is harmless error where the fact sought to be proved is established by other evidence.
    9. Carriers, § 110

      —when exclusion of evidence as to improvement of injured corn by treatment is proper. In an action against a carrier to recover damages for loss in quality of com due to deterioration caused by delay in transit, where it appeared that some of the corn was “rejected” corn, com of the lowest grade, evidence that such com could be made into com of a higher grade at the point of destination was properly excluded.
    10. Evidence, § 93

      —how market price of property determined. The market price of property is ascertained by evidence of what is paid and received for property when sold, if there are enough such transactions to establish a market price.
    11. Evidence, § 478

      -—when fact not proved. A fact cannot be regarded as proved where the evidence merely gives rise to conjecture or suspicion of its existence.
    12. Carriers, § 106

      —when burden on plaintiff to show amount of damage d/ue to delay. The burden of proof to show the amount of damage is on plaintiff, in an action by a shipper against a carrier to recover damages for deterioration in quality of com due to delay in transit.
    13. Carriers, § 110

      —when damages for deterioration due to delay are excessive. A verdict for $2,208,27 against a carrier for deterioration in quality of corn due to delay in transit, held excessive to the extent of $471.53.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehacts, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed on remittitur.
    Opinion filed October 10, 1918.
    Graham & Graham and Stevens, Miller & . Elliott, for appellant; Charles R. Webber, Morrison R. Waite and William A. Eggers, of connsel.

      Clarence W. Heyl and Harry C. Heyl, for appellee.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

This is one of four appeals by defendants in cases tried at the same term of the Peoria county Circuit Court before the same judge, presenting here, with slight exceptions, the same questions of law, with briefs of counsel substantially and in part literally the same. It is an action on the case brought by the Mueller Grain Company, the appellee, against the appellant railroad company, the initial carrier, to recover damages for loss in quality and quantity in five carloads of com shipped from Peoria, Illinois, to Baltimore, Maryland, which damage it is charged was caused by the negligence of the carrier in holding the grain in transit an unreasonable time and until, in the warm weather of the spring season, it heated and spoiled.

The declaration contained counts on each of the five cars charging deterioration in quality, and a count on the entire shipment charging both loss in quantity and damage to the remainder. The general issue was pleaded. There was a verdict of $2,208.27 for the plaintiff, which could only be reached by allowing for loss in weight at 81 cents a bushel, and for the remaining corn a damage in quality of 33 cents per bushel. Appellee in its brief claims the result of that computation is $2,218.93. Appellant does not deny that the sum named in the verdict would be obtained on that basis, and though appellee does not state its computation in detail and we fail to get its exact result, the verdict is not substantially excessive if appellee’s theory of the case is adopted.

Appellant’s motion for a new trial was denied and judgment entered on the verdict. A reversal is asked because appellant says: (1) It was not an insurer of prompt delivery, and is only liable for unreasonable delay under the circumstances of this case, and that the unusual delay was caused by conditions incident to the war and entirely beyond its control; (2) that the rule of damages adopted was the difference in the market value at the time and place of actual delivery, while it claims the true measure of damages is the difference in the market value of the corn at the time and in the condition in which it did arrive, and at the time and in the condition in which it should have arrived, and that there is no evidence of market price at the time the com should have arrived, therefore no basis for a verdict in any amount of damages; (3) that the court erred in excluding evidence offered by appellant that the damage was caused by too. much moisture in the corn at the time of delivery to the carrier; (4) that the court erred in excluding evidence of the condition causing the delay in transit; and (5) that the com was delivered in as good condition as when received, or at most it was not damaged more than 22 cents a bushel. No complaint is made of the instructions to the jury, and. none as to rulings on evidence except these general statements. It is not suggested that there was any stipulation in the bill of lading limiting or restricting the carrier’s liability.

The shipment, being interstate, the rights and liabilities of the parties depend upon acts of Congress, the bill of lading, and common-law rules as accepted and applied in federal tribunals. Adams Exp. Co. v. Croninger, 226 U. S. 491; Southern Ry. v. Prescott, 240 U. S. 633; Cincinnati, N. O. & T. P. Ry. Co. v. Rankin, 241 U. S. 319; Gulf, C. & S. F. Ry. Co. v. Texas Packing Co., 244 U. S. 31; and Michelson v. Judson Freight Forwarding Co., 268 Ill. 546. The federal statute governing is the Interstate Commerce Act as changed by the Cummins Amendment, which amendment took effect in June, 1915, and unaffected by the subsequent amendment of August 9, 1916, after this cause of action accrued. There are many federal and State decisions based on the provisions of the Carmack Amendment (Act of June 29, 1906, 34 U. S. St. 593, 594); see also Fed. St. Ann. vol. 4, sec. 506 et seq. The Carmack Amendment as enacted is copied in 10 Corpus Juris, 136, n.39; and the Cummins Amendment on the next page, n.48. The effect of those amendments is discussed in that work, beginning on page 52 of that volume.

The evidence shows without contradiction that February 4, 1916, appellee delivered to the appellant at Peoria, Illinois, five carloads of com, aggregate weight 348,000 pounds, to be shipped to Baltimore, Maryland. The com was 77 days in transit, delivered at Baltimore April 22, 1916, where the total weight was 330,070 pounds, a shrinkage of 17,930 pounds. At the time of shipment at Peoria one car of the com graded No. 4, and each of the other four cars No. 5. On delivery at Baltimore it all graded “rejected com, very damp, musty, moldy, warm, and damaged.” Different terms were in use at Peoria and Baltimore to express the condition of com. The highest grade at Baltimore was known as “contract corn” or “prime sail com,” meaning the same, and applied to corn fit for shipment in sailing vessels. The next lower grade was termed “steamer com,” applied to com that should be carried in steamers. Then followed the lower grade of “N. E. 0.” or “no established grade,” then the lowest “rejected com,” applied to corn that would not take either of the higher grades and including different qualities of damaged grain. At Peoria numerals were used to denote the relative quality of grain. The classification at the two places was not governed by precisely the same considerations, but the amount of moisture in the corn was at each place the most important factor.

When this com was delivered at Baltimore April 22, .1916, the quoted and admitted market price there of contract or prime sail com was 81 cents per bushel; of steamer corn 3 cents less, or 78 cents a bushel. There was no quoted market price for the grade “rejected,” but there was a market there for it at a discount of from 25 cents to 33 cents a bushel from the quoted price of contract com, depending upon its condition. Without seeing the corn, and judging only from its grade “rejected,” it could only be said, if it was the worst included in that classification, the discount would be 33 cents, and if the best, 25 cents a bushel; or if, of an intermediate quality, then some intermediate figure, which could only be ascertained, by further information than the word “rejected,” and its following words in the reported grade furnished.

Witnesses for appellee testified that the customary time for transit between Peoria and Baltimore was 8 to 12 days. A witness for appellant said, under ordinary conditions, if the shipment left Peoria on or about February 4th, the corn should have arrived at Baltimore by March 1st. It appears without much, if any, contradiction that had the corn arrived at Baltimore in February, whether 10 or 25 days in transit, it would not, in the cool weather of that month, have become heated and damaged, but in the warm weather following, the germinating period occurs, and com retained in closed cars, as was this com until April 22nd, would naturally heat and depreciate in quality and value. We think it conclusively proven that the com was much damag'ed and depreciated in market value while in transit, and that the unusual delay and holding the grain in closed cars so long in the warm spring weather was the proximate cause of the injury.

This brings us to a consideration of the question of law presented by appellant’s counsel. In support of the first, that a carrier is not an insurer of prompt delivery, they cite 10 Corpus Juris, 290. It is there said in the text, section 410: “A carrier may excuse its delay by accident or misfortune, although not inevitable or produced by an act of God.” But on the same page, section 412, we find:

“Where goods are tendered to a carrier for transportation, it is bound to advise the shipper as to any cause likely to delay transportation, which cause is within its knowledge, or within its fair and reasonable means of knowledge, and not within the knowledge of the shipper; and, if it fails in its duty in this respect, a delay in the transportation of the goods will not be excused, and that too irrespective of the nature of the cause. The acceptance of goods for shipment without notifying the shipper of the fact that they cannot be promptly delivered is tantamount to an assurance that they will be delivered within a reasonable time, except for the intervening of excusing causes of subsequent occurrence. This duty is in no way dependent on special agreement, but is a part of the duty imposed by law on carriers; and the reason why the law has imposed it on the carrier is to give the shipper an opportunity to exercise his own discretion as to the propriety of making the shipment—to choose between the different courses open to him.”

They refer us to 24 L. R. A. (N. S.) 1209, where we find a case and note collecting authorities in support of the proposition that unusual heavy snowstorms which tie up railroad operations, obstructing movements of trains, are to be held acts of God, relieving common carriers from liability for loss caused thereby. Several other authorities are cited to the effect that delay in transit from causes beyond the control of the carrier may be excused. All cases bearing on this and other questions presented here should be read, observing the distinction between the liability of the carrier as an insurer and its liability for loss re-suiting from its own wrongful or negligent act. The general rule applicable to the facts in this case is as stated in Tate v. Missouri Pac. Ry. Co., 157 Ill. App. 105, 110, in an opinion by Justice Duncan, that a carrier is guilty of negligence in accepting a shipment when it knows, or ought to know, that it cannot handle it to its destination in a reasonable time. Eastern Ry. Co. of New Mexico v. Littlefield, 237 U. S. 140, is conclusive on this question. The contention of appellant on this point is practically the same as that of counsel in Conover v. Wabash Ry. Co., 208 Ill. App. 105, where it was denied on the authority of that federal case and other cases. It is not claimed that appellant notified appellee at.the time of shipment that there would or might be delay in delivery, or that appellee was in any way charged with that knowledge; therefore the question whether public knowledge of congested traffic conditions at the time might affect the rights of the parties is not presented; but such public knowledge does not relieve the carrier of the duty to give actual notice to the shipper of conditions that may cause delay in delivery. Missouri, K. & T. Ry. Co. of Texas v. Stark Grain Co., 103 Tex. 542, 131 S. W. 410; Conover v. Wabash Ry. Co., supra. The record before us presents a case charging appellant when it accepted the com with knowledge of the conditions causing the delay in transit, and no notice to appellee that the grain could not or might not be carried to its destination in the usual time required for such transportation. Wé conclude appellant was guilty of negligence even if it be considered that the cause of delay was something beyond its control.

Appellant’s second contention is that the damage, if any, should be ascertained by application of the rule established in actions for loss from unreasonably delayed shipments, which is the difference between the market value of the consignment at the time and in the condition it should have arrived, and its market value at the time and in the condition when it did arrive, instead of the other rule applied in actions for negligent injury while the consignment is in transit, which is the difference between the market value of the goods at the time and place of delivery in an uninjured condition, and their value in the depreciated condition in which they were delivered. There are minor considerations to he noted in a general application of each of the above rules, but the statement is sufficient to present the question of time at which values are to be ascertained. The court gave for appellant an instruction stating the law as it now contends, but the jury could only have reached the verdict by adopting the other rule. In actions for damaged goods the rule, as above stated, is held in New York, L. E. & W. R. Co. v. Estill, 147 U. S. 591; Gulf, C. & S. F. Ry. Co. v. Texas Packing Co., supra; and in Wabash R. Co. v. Campbell, 219 Ill. 312; and so stated, citing many cases, in 10 Cyc. 396. In actions for unreasonable delay, the rule, as above, is stated in 6 Cyc. 450, citing many cases, among them Illinois Cent. R. Co. v. Cobb, Blaisedell & Co., 72 Ill. 148. It was so held in Illinois asi early as Sangamon & M. R. Co. v. Henry, 14 Ill. 156. Authorities are numerous and practically uniform, in the application of the above-stated rules to claims for unreasonable delay in delivery, and claims for damaged goods, respectively. In the present case, if the rule of delayed shipment is applied, there is no evidence to support the verdict because no proof of market value at the time the com should have arrived, and if there was such evidence it might be, as appellant’s counsel say it would be, proof of a rise in market value, which they claim the carrier is entitled to the benefit of in assessing damages, and which he would get if the rule of delayed delivery is applied.

We regard this as an action for negligence, in permitting goods to become damaged, as distinguished from an action for unreasonable delay. The delay is only pleaded and proven to show why the com became hot and rotten, but in a sense the damage was occasioned by unreasonable delay in transportation. Is the carrier’s liability different from what it would be had it delivered the goods in a reasonable time, damaged from some other wrongful act, is the question presented. Cases are not numerous where delay in transit and damaged goods are both charged. Appellant’s counsel cite only Idaho Sheep Co. v. Oregon Short Line R. Co., 188 Ill. App. 591, and Warren Land Co. v. Chicago, St. Paul, M. & O. Ry. Co., 195 Ill. App. 157, in support of their contention. We find in the text of 10 Corpus Juris, sec. 442: “If during the negligent delay the market price at destination increases, the shipper is not injured and is not entitled to recover damages,” citing only Stevens v. St. Louis Southwestern Ry. Co. (Tex. Civ. App.), 178 S. W. 810, in support of the text. That case announces that rule without citing any authority. The statement is correct if confined to actions for unreasonable delay.

This court in Michigan Cent. Ry. Co. v. Osmus, 129 Ill. App. 79, passed on a case much like the present where there was injury to live stock caused by unreasonable delay in transportation, and held that the rule applicable to damaged property applied. At first blush it may seem plausible that the shipper should only be reimbursed his pecuniary loss, and if the market has gone up enough to make good the damage to goods by his wrongful act then there should be no recovery ; but there is abundant reason and authority denying that position. If appellant had negligently destroyed one carload of this com, or 10 per cent of the com in each car, it could not escape the penalty of its own negligence by showing a benefit to the shipper from a rising market while the carrier wrongfully delayed the delivery of the goods. The precise question was decided in Morrison v. I. & V. Florio S. S. Co., 36 Fed. 569, where it was held that the carrier could not escape liability by reason of the advance in price in the interval between the dates of required and actual delivery, and said on page 571: “The profit accruing from the accidental rise in the market belonged to the libelant, and it would be an extraordinary misapplication of the principles of justice to allow the respondents to escape all liability for their negligence and dereliction of duty by depriving the libelant of any recompense for their wrong because of the advance in price. To do this would be to bestow a premium on the misconduct of the respondents.” And suggested that in the case there considered (damage to 600 casks of prunes), if the price had doubled between the day when they should have been delivered and the day of actual delivery, and 300 casks had been delivered sound and the other 300 were totally destroyed by the fault of the carrier, that the shipowner could not claim that the doubling of the market price had relieved him from payment for the half destroyed. This case is cited and the rule there stated adopted in the text of the third edition of Sutherland on Damages, sec. 906, and repeated with additional citation of authorities in the fourth revised edition of that work, same section. The question was presented in Conover v. Wabash Ry. Co., supra, and the court on the authority of Morrison v. I. & V. Florio S. S. Co., supra, and Sedgwick on Damages, p. 1763, held that: “The carrier cannot be exempted from the consequences of his own wrong by an advance in price during the wrongful delay in transit.” We conclude the proper rule of damages was applied in reaching the verdict.

The third and fourth points made by appellant are on the exclusion of evidence. There is no reference to the abstract or record to indicate the items claimed to be erroneously excluded. We notice in examining the record that the court sustained objections to questions whether the com in the Springfield and Decatur districts that year, in general, graded a fair and average crop, and excluded a statement that the crop of com in Í915 was one of the poorest this country had produced, especially from the section including Peoria. We see no error in that. There was no question about the grade of the corn at Peoria. Full inquiry was permitted as to what those grades, 4 and 5, meant. If there had been no other corn in the district that would take that grade, that fact would not be material unless possibly in some action in which the correctness of the grade was questioned. The court did reject some evidence as to the cause of the delay in transit, but that was all directed to the fact that congestion of traffic caused the delay. This ruling was correct because that cause of delay did not excuse the carrier, as we have before said. And if it had been competent, appellant was not harmed because there was evidence admitted showing that the cause of delay was congestion in traffic, on which evidence counsel here base a part of their argument. It appears that “rejected” com could be made “prime sail” com by a drying process in use at Baltimore. Appellant offered to show the weight of the com after it had been submitted to that treatment. This evidence was rejected. At most it could only have tended to show that the com was the best quality included in the grade “rejected.” “Rejected” com was something distinct from “prime sail” corn in the sense that com meal is different from com, and on the question of market price, when there is one, the court cannot go into an inquiry of the cost' or result in value from converting a lower into a higher grade, or into meal or bread, or feeding it to stock. All these considerations are presumed to be involved in and govern the market price, which is ascertained by evidence of what is paid and received for property when sold, if there are enough such transactions to establish a market price.

Appellant’s fifth and last contention is that the com in its condition at Peoria would not have graded higher than steamer com at Baltimore because of the amount of moisture shown by the grade at Peoria, and therefore the price of steamer com, 78 cents, should have been used instead of the price of “prime sail” com, 81 cents. There is some evidence supporting that contention, but more evidence that it would have taken the higher grade. We would not be justified in rejecting the verdict of the jury on that question. But appellant also says “rejected” corn was at a discount of from 25 cents to. 33 cents a bushel, and there was no other evidence as to the market value of this com on its arrival at Baltimore; therefore, as the burden is on appellee to prove the amount of damage, it can recover only on the basis of 25 cents a bushel discount. Appellee’s counsel do not answer this suggestion. Appellant cites no authority. Probably this damage was somewhere between the two extremes. There was more reason for choosing some intermediate figure, but such a verdict would have rested on a guess. We know of no authority permitting this extreme verdict, because the action is one of tort instead of contract. In Sutherland on Damages, vol. 1, sec. 100, it is noted that in cases of fraud and intentional wrong compensatory damages are given with a more liberal hand by juries, and their verdict is less closely scanned by courts, and perhaps remote and uncertain damages are less strictly excluded, but it is said: “Where the damages are certain, as for the taking or destruction of property having a well-known and provable value, the rule of compensation is generally the same, whether the loss is by tort or by breach of contract, and whether the wrong was wilful or not. But there is a more liberal allowance of damages where the tort is an aggressive one, and the entire damages, or some part of them, are not capable of measurement by some standard of value or definite rule.” The general rule is that a fact cannot be regarded as proved where the evidence merely gives rise to conjecture or suspicion of its existence. 17 Cyc. 754. A majority of chances never can suffice alone to establish a proposition of fact. 17 Cyc. 764.

Appellee had the burden of proving the amount of the damage. This com was damaged so that it graded “rejected.” Whether the best, or the worst or some intermediate quality of “rejected” corn, was capable of proof. We conclude that under the evidence the verdict should have been based on a damage of 25 cents instead of 33 cents a bushel difference between price of “prime sail” and “rejected” corn. This computa^tion reduces the verdict $471.53.

This opinion will be lodged with the clerk of the court and if appellee files a remittitur within 5 days in the sum of $471.53, the judgment will be affirmed in the sum of $1,736.74 at appellee’s costs; otherwise the judgment will be reversed and the cause remanded.

Affirmed on remittitur.

Mb. Justice Niehaus took no part.

Appellee having filed herein a remittitur in the sum of $471.53, the judgment is therefore affirmed in the sum of $1,736.74 at appellee’s costs.


author: Mb. Justice Niehaus

text:
    Robert I. Thornton, Appellant, v. H. L. Hendrickson, Appellee.
    Gen. No. 6,445.
    1. Trial, § 148

      —necessity of specific objection to improper remarles by counsel in opening statement. Improper remarks by counsel in his opening statement should be specifically objected to at the time they are made so that the trial court may first have an opportunity to remove the evil effects, if any, which might result from the remarks excepted to.
    2. Trial, § 148

      —when specific objection to opening statement of counsel properly overruled. A specific objection to the opening statement of counsel on the ground that there is nothing in the pleadings to base the statements of counsel on, and that the remarks made did not relate to an issue in the case, is properly overruled where the matters referred to might become competent evidence.

      3. Fraud, § 93

      —what is rule as to admissibility of evidence of. The trial courts should be liberal in the receipt of evidence of questions of fraud, and concerning all matters which tend to disclose the true nature of the transaction.
    4. Chattel' mortgages, § 193

      —when good faith in execution is in issue, warranting admission of evidence of bad faith. In an action of replevin by a chattel mortgagee against a sheriff to recover possession of personal property levied upon by defendant under executions issued on judgments against the mortgagor, the good faith in the execution of the mortgage was put in issue so as to render admissible any evidence tending to show that it was not executed in good faith or fraudulently executed, where, although there was no direct allegation of fraud by defendant, there was an issue joined upon plaintiff’s replication, in which he based his right to the property upon his chattel mortgage, which he alleged was executed by the mortgagor in good faith and for the expressed consideration.
    5. Appeal and error, § 1679

      —when objection as to variance waived. An objection to the admission of evidence on the ground of variance is deemed waived, unless it is made specifically on that ground, and pointed out to the trial court, so that an opportunity may be given to amend the pleadings and obviate the objection.
    6. Appeal and error, § 521

      —when question of variance may not be raised. The question of variance between pleading and proof cannot be raised for the first time on appeal.
    7. Chattel mortgages—when intention of chattel mortgagor to hinder and delay creditors is question for jury. In an action of replevin by a chattel mortgagee to recover mortgaged personalty seized on execution by other creditors of the mortgagor, evidence held to present a jury question as to whether the circumstances attending the execution of the mortgage, the handling and manipulation of the property after the execution of the mortgage and the diversion of a part of the mortgagor’s effects from the reach of his creditor, indicated an intention to hinder and delay the creditors of the mortgagor by the execution of the mortgage.
    8. Fraudulent conveyances, § 17

      —when chattel mortgage void. Even though a chattel mortgage may have been given to secure a bona fide debt to the mortgagee, yet, if it was also made for the purpose of protecting the mortgagor against the just demand of his creditors, it was fraudulent and void.
    Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed October 17, 1918.

      J. W. Rausch, for appellant.
    Frank H. Hates, for appellee.

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

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

   Mb. Justice Niehaus

delivered the opinion of the court.

This is an action of replevin brought by Robert I. Thornton, appellant, in the Circuit Court of Grundy county, against H. L. Hendrickson as sheriff, to recover the possession of certain personal property levied upon by the sheriff under executions issued on certain judgments against the judgment debtor, Guy Marsh. The property consisted of seven horses, one automobile, two cows, two cribs of com and farming tools and implements. The appellant based his right to recover the property on a certain chattel mortgage for $5,000 which Guy Marsh had executed and delivered to tiimi on the 7th day of September, 1915. The statutory requirements relative to the execution, acknowledgment and recording of the mortgage appear to have been complied with, and, on the face of it, the mortgage was a lien on the property described. The mortgage is attacked in this proceeding however as fraudulent; and it is claimed by the appellee that it was made to hinder and delay the creditors of Guy Marsh from satisfying their just claims out of the property mortgaged; and this was the real issue which was tried in the court below. The trial resulted in a verdict and finding in favor of the appellee, upon which judgment was rendered, awarding a writ of retorno habendo, and assessing costs against the appellant. Ati appeal is prosecuted from this judgment.

Several errors are assigned and relied on for a reversal of the judgment. Complaint is made that the counsel for appellee, in his opening address, exceeded the bounds of a proper opening statement, and there is some basis for the complaint made. The opening statement of the counsel for the appellee appears to have been more of an argument than a statement of the facts, which he expected to prove; but no objection was made to the remarks of the counsel on that ground. If appellant had desired to take advantage of the improper remarks of the opposing counsel in this regard, it was necessary that he make a specific objection thereto at the time they were made. A mere objection is not sufficient; and it is not to be considered unless it specifies the nature of the objection, so that the trial court may first have an opportunity to remove the evil effects, if any, which might result from the remarks objected to. Illinois Cent. R. Co. v. Cole, 165 Ill. 334; Chicago City Ry. Co. v. Gemmill, 209 Ill. 642. Only one objection which counsel for appellant made to the opening remarks specified the ground of his objection; and the ground specified was that there was nothing in the pleadings to base the statement of counsel on; that the matter talked about was not an issue in the case, and could not be made an issue. The court properly overruled this objection because, while the matters referred to in the remarks of counsel were not referred to in the pleadings, and were not directly in issue in the case, they might nevertheless become competent evidence, and admissible as circumstances to be considered by the jury on the question of extent of the indebtedness of G-uy Marsh at the time of the execution of the mortgage, and in connection with the question of the solvency which was raised in the case; Where there is an issue of fraud involved, concerning a conveyance of property, a wide range of inquiry is permitted, and it is usually competent to show the financial condition of both the mortgagor and the mortgagee. A broad inquiry is allowed as to facts and circumstances, which might tend to show the true intent with which an instrument was executed. The trial courts should be liberal in the receipt of evidence in the investigation of questions of fraud, and concerning all matters which tend to disclose the true nature of the transaction. Sometimes very slight circumstances, apparently trivial in themselves, when joined with other facts may afford strong proof of fraud. Bigelow on Fraud, p. 476; Vigus v. O’Bannon, 118 Ill. 334.

Appellant also contends that, under the pleadings, the mortgage could not be attacked as fraudulent because there was no direct allegation of fraud. There was issue joined upon appellant’s replication, however, in which appellant bases his right to the property in question, upon his chattel mortgage which he alleges was executed by Guy Marsh in his favor in good faith and for the consideration in the mortgage expressed. The good faith in the execution of the mortgage was therefore directly put in issue, and any evidence which showed, or tended to show, that it was not executed in good faith or fraudulently executed, was competent in that state of the pleadings. It was not necessary that the appellee should have disclosed in the pleadings the special matters which constitute the evidential grounds for his attack on the mortgage. Strohm v. Hayes, 70 Ill. 41. But even if the evidence were not proper or competent because it constituted a variance in the proofs with the allegations in the pleadings, the objection should have been made to the evidence specifically on that ground at the time it was offered. An objection to the admission of evidence on the ground of variance is regarded as waived, unless it is made specifically on that ground, and pointed out to the trial court, so that an opportunity may be given to amend the pleadings and obviate the objection. Traders Mut. Life Ins. Co. v. Johnson, 200 Ill. 359; Pettis v. Westlake, 4 Ill. (3 Scam.) 535; Winchester v. Rounds, 55 Ill. 451. The point, that the proofs were at variance with the allegations in the pleadings, not having been made in the court below, cannot properly be made for the first time here.

Concerning the validity of the chattel mortgage in question, the record discloses the following facts which have a bearing on this question: The mortgagor, Guy Marsh, in the spring of 1914, took over a farm as tenant, which had been previously farmed by his father, George Marsh, who had become bankrupt; and continued to farm it until the fall of 1915. He became heavily indebted to various persons, including his grandfather, George H. Cragg, and after his grandfather’s death owed the Cragg estate a considerable amjount of money. He was also indebted largely to other parties. Martin Hulsey, Henry Stocker and Jesse A. Likens, as administrator of the Cragg estate, obtained judgments against him which aggregated $1,067.47, and upon these judgments the. executions issued which were levied by the appellee upon the property in question. And the evidence tends clearly to show that Guy Marsh, at the time of the execution of the mortgage to the appellant, was practically insolvent.

Concerning the circumstances which led to the execution of the mortgage, appellant testified that he became connected with the transaction because Guy Marsh had come to him, at Ottawa a day or two before and told him his predicament with reference to the debts which were pressing him; that he wanted to know if appellant could help him; and that thereupon appellant went to Morris to have the mortgage executed, and to make arrangements to see Marsh through his troubles. Appellant admitted that while the consideration stated in the mortgage was $5,000, Guy Marsh, as a matter of fact, was indebted to him only in about the sum of $400, and gave as a reason for making the mortgage so largely in excess of the actual amount due, that he expected to advance money to Marsh which he might need to carry on his farming operations, to pay rent and taxes, also to pay other debts of Marsh, and that he left the whole matter in the hands of his attorney, J. W. Rausch, who was also Marsh’s attorney. The matter was arranged .by Bausch in this way: At the execution of the mortgage to appellee a note was made to H. B. Smith, upon which $4,325 was realized and turned over to Bausch and Bausch signed the note as security. Bausch paid out the money for various debts and obligations of Guy Marsh; and also paid a debt of Guy Marsh’s mother amounting to $1,200. After the execution of the mortgage, the property mortgaged remained in the possession of Guy Marsh, and he handled and controlled it apparently in the same way as before the execution of the mortgage, even to the extent of selling some of it as if there were no mortgage against it, merely going through the form of getting the consent of his own attorney, Bausch, for the purpose of sale. Finally about the time of the levy he advertised the property for sale in his own name. It was after the replevin of the property that it was advertised and sold under the mortgage; but even after the replevin proceedings were instituted, the property was returned to the possession of Guy Marsh, and a part of it, an automobile, never was sold but continued in Marsh’s use and control, and he had it at the time of the trial. It is apparent that the payment of the mother’s indebtedness, which exceeded the total amount of the judgments here involved, out of the mortgagor’s assets in his condition of insolvency necessarily had the effect of diverting at least $1,200, available for the purpose of satisfying his own creditors, to other purposes in conflict with their rights in the premises.

Whether the circumstances attending the execution of the mortgage, and the handling and manipulation of the property mortgaged by Guy Marsh after the execution of the mortgage, and the diversion of a part of the mortgagor’s effects from the reach of his creditors, indicated an intention to hinder and delay the creditors of Guy Marsh from enforcing satisfaction of just claims against Ms property by the execution of the mortgage, was a question for the jury, and we think the jury were warranted in reaching the conclusion which they did on this question. Even though the mortgage may have been made to secure the bona fide debt to the appellant, yet if it was also made for the purpose of protecting Marsh against the just demands of his creditors, it was fraudulent and void. Beidler v. Crane, 135 Ill. 92; Lobstein v. Lehn, 120 Ill. 555; Mowry v. Kingman & Co., 81 Ill. App. 468; Salzenstein v. Hettrick, 105 Ill. App. 102; Weber v. Mick, 131 Ill. 520; Ley v. Reitz, 25 Ill. App. 615.

We find no substantial error in the admission or rejection of evidence at the trial, nor in the given instructions. Only general objections are made to the instructions, and it is not our duty to scrutinize them with a view to finding errors not specifically pointed out by appellant. No reversible error is disclosed by the record, and the judgment is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Dever

text:
    Samuel Barnett, Plaintiff in Error, v. Morris Levy, Defendant in Error.
    Gen. No. 24,443.
    1. Automobiles and garages, § 2

      —what is duty of owner driving automobile towards guest. One riding in an automobile as the guest of the owner is, in a sense, in the custody of such owner, and he must exercise a reasonable degree of care for the safety of his guest.
    2. Automobiles and garages, § 3

      —when negligence of driver in injuring guest is question for jury. Negligence of the driver of an automobile causing injury to an occupant, held to be a question for the jury, where as the result of the blowing-out of a tire the car turned over, although there was no direct evidence as to what caused the blow-out.
    3. Automobiles and garages, § 3

      —when instruction as to requisites of declaration is not erroneous. In an action by the occupant of an automobile against the owner for injuries alleged to have been caused by the latter’s negligent operation of the car, an instruction that an allegation in the declaration that plaintiff was riding in the automobile as a guest of the defendant was a necessary and material part of plaintiff’s case, was not erroneous.
    4. Automobiles and garages, § 3

      —when instruction on failure

      to prove that plaintiff was guest of driver of car is proper. An Instruction was not erroneous that if the persons riding in an automobile were engaged, at the time of the accident, in a joint enterprise, and each of them had agreed to pay his proportionate share of the expenses of the trip, an allegation that plaintiff, who claimed to have been injured through the negligent operation of the car by defendant, was a guest by the invitation of the defendant, was not sustained and plaintiff could not recover.
    5. Pleading, § 451

      —when charge in declaration taken advantage of in apt time. A charge in the declaration which plaintiff attempted to support by evidence and argument is taken advantage of in apt time by defendant by a request for an instruction thereon.
    6. Automobiles and garages, § 2

      —when occupant of car may not recover for injuries due to negligence of driver on theory of relationship of guest and host. A claim by plaintiff in an action against the owner of an automobile that he was the guest of defendant is not sustained by proof merely that he was a lawful occupant of the car, and he cannot recover for injuries caused by defendant’s negligent operation on the theory of the violation by the host of a duty owed the guest, where the evidence shows that the parties were in fact engaged in a joint enterprise and had agreed to share all the expenses of an automobile trip proportionately.
    7. Automobiles and garages, § 3

      —when evidence as to speed of automobile not improperly excluded. Evidence as to the speed of an automobile was not improperly excluded where it was not clear from the testimony of the witness whether she was competent to judge of, or had any opinion as to the speed of the car at the time of the accident.
    8. Appeal and error, § 1489

      —when exclusion of evidence not reversible error. The striking of a statement of a witness, on direct examination, as to the speed of an automobile was not ground for reversal where opinion as to its speed was brought out on cross-examination.
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed January 27, 1919.
    Richard J. Finn, for plaintiff in error; Munson T. Case, of counsel.
    Ryan, Condon & Livingston, for defendant in error.

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

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

   Mr. Presiding Justice Dever

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook county in favor of the defendant, in an action begun by plaintiff to recover damages for personal injuries alleged to have been received by him as the result of an accident while riding in an automobile driven by the defendant near Camillus, New York.

The plaintiff’s declaration consisted of four counts, in each of which he alleged that on August 18, 1914, he was riding upon a public highway near the town of Camillus, New York, in an automobile driven by defendant as a guest of defendant. The declaration in each of its counts charged that the defendant was negligent in his failure to use ordinary care for the safety of plaintiff in operating the automobile in violation of the New York statute in relation to the speed of automobiles in public highways, and in operating the automobile at an excessive rate of speed which caused one of its tires to puncture and blow out. The jury which tried the case returned a verdict in favor of the defendant. A motion for a new trial was overruled and judgment was entered upon the verdict.

It is insisted upon behalf of plaintiff that he was entitled to recover, notwithstanding the allegation in each count of the declaration that he was riding in the automobile driven by defendant as a guest of defendant, if it could be shown from the evidence that plaintiff was a lawful occupant of the automobile by the consent and permission of defendant.

It cannot be said, as asserted in the briefs of counsel, that the trial judge was of the opinion that defendant owed no duty to plaintiff merely because plaintiff was riding in defendant’s automobile by his own choice. We are inclined to the view that instructions given on behalf of defendant tended to show that the trial judge was of the opinion that the burden of proving the material allegations of the declaration rested upon the plaintiff and that plaintiff could not recover under his declaration in the absence of such proof. One riding in an automobile as the guest of the owner is in a sense in the custody of such owner, who is required by the law to exercise a reasonable degree of care for the safety of his guest. Huddy on Automobiles (4th Ed.), sec. 113. Where, however, it appears that the person complaining occupies some other relation towards the driver or owner of an automobile than that of guest, as, for instarice, that of partner or master or servant, different rules of law are applicable with reference to the responsibility and rights of each towards the other. '

In Berry on Automobiles (2nd Ed.), sec. 334, it is said:

“The operator of an automobile who invites another to ride with him is bound to exercise reasonable care for the safety of his guest, and if by his negligence the guest is injured, the latter being in the exercise of due care, he is liable in damages therefor.”

The above authority and others which are relied upon by counsel for plaintiff correctly hold that it is the duty of an owner or driver of a motor car to use reasonable care in its operation not to unreasonably expose a guest to injury. Perkins v. Galloway, 194 Ala. 265.

The inapplicability of these authorities to the evidence before us arises from the fact that one of the principal issues made upon the trial of the cause was that the plaintiff was not at the time of the accident a guest of the defendant; that he and defendant were in fact engaged in a joint enterprise and should be regarded as sustaining a relationship towards each other similar to that of partners.

In Beard v. Klusmeir, 158 Ky. 153, it was held that a material variance did not occur between the allegation that a plaintiff was a passenger in defendant’s automobile and proof that he was a licensee. In deciding that ease the court said:

“In principle, we see no difference between the case of one who goes upon the premises at the invitation of the owner, and the case of one who takes a ride at the invitation of the owner of the automobile, or other vehicle. In either case the relation of host and guest arises.”

The difference between this case and the one at bar is that here the proof tends to show that no such relationship as host and guest in fact existed between the parties to the accident.

The evidence tends to prove that the plaintiff and the defendant had been friends for some years; that some time before the date of the accident they agreed together to take an automobile trip to New York; that later one Fogel and one Applebaum were asked to join the trip, and that the four men subsequently met and agreed to take the trip and to divide the expenses incurred therein among them; that the plaintiff, Barnett, was agreed upon as a cashier and that he paid all the expenses incurred during the trip, including the hotel bills, meals, gasoline and oil, up to the time of the accident.

At the time the accident happened the defendant was driving the ear on a smooth asphalt road near the town of Camillus, New York, when the party overtook a car going in the same direction. Levy’s testimony is to the effect that he was driving about 25 miles an hour and that in order to pass the overtaken car it was necessary for him to drive with the two left wheels of his car on a dirt shoulder adjoining the asphalt pavement; that after he had passed this car and had gone about a mile, the rear left tire blew out, which caused the automobile to sway to the right; that he, as quickly as possible, shut off the gas and swung the car to the left to avoid hitting a tree, and that the car ran into a hole near the edge of the pavement and turned over; that after the accident the four persons who were riding in the automobile were taken to a hospital at Syracuse and that thereafter they settled with Barnett for their respective shares of the expenses incurred on the trip. Plaintiff’s testimony is to the effect that at and just before the time the accident happened, defendant was driving the car at the rate of from 40 to 52 miles an hour; that he warned defendant that he was running at a dangerous rate of speed and that defendant failed to heed his warning.

There seems to be no dispute in the evidence that the accident, whatever the rate of speed of the car, was directly caused by the blow-out of the tire, and the record contains no direct" evidence as to what caused the blow-out. On the whole record we think the question of defendant’s negligence was properly left by the trial court to the decision of the jury.

The negligence charged was of a careless operation of the car. On this question the record contains evidence both ways, but even if it be conceded that a preponderance of the evidence shows that the defendant was guilty of the negligence charged, it is not certain that such negligence was the proximate cause of the accident. However, the jury found the defendant not guilty and the record contains evidence in support of the defense that the defendant was driving at the time of the accident with reasonable care.

The court did not err in its instruction to the jury that plaintiff had alleged in each count of the declara^ tion that he was riding in the automobile as a guest of defendant and that this allegation was a necessary and material part of plaintiff’s case. The instruction charged the jury that if the persons riding in the automobile were engaged at the time of the accident in a joint enterprise, and that each of them had agreed to pay one-fourth of the expenses of the trip, then the allegation that plaintiff was a guest by the invitation' of defendant was not sustained and plaintiff could not recover. We do not think that this instruction was erroneous. The defendant took advantage of this charge in the declaration in apt time by requesting the instruction which was given. The plaintiff charged in the declaration that he was a guest of defendant and lie attempts to support this charge by evidence and argument. Kirn v. Chicago Journal Co., 195 Ill. App. 197.

The case of Wood v. Illinois Cent. R. Co., 185 Ill. App. 180, is not in point. In that case the court held that either of several charges of negligence in the same count of a declaration could be shown in support of a cause of action, and that it was not necessary to prove all of the charges of negligence if the record showed that one of such charges was sufficiently proven.

In Williams v. Chicago A. R. Co., 135 Ill. 491, the Supreme Court said:

“In order to justify a recovery, it is not sufficient to show that the defendant has neglected some duty or obligation existing at common law or imposed by statute, but that the defendant has neglected a duty or obligation which it owes to him who claims damages for the neglect. ’ ’

Plaintiff charged that defendant had neglected to perform a duty which he owed to him as a guest, and we think that he was required by the law to prove this charge. Gibson v. Leonard, 143 Ill. 182.

The authorities are numerous that where two persons sustain personal injuries while engaged in a joint enterprise, if the negligence of one of them proximately contributed to the accident, then, such negligence becomes a bar to an action broughbby.,the other against a third person for such injuries. Beaucage v. Mercer, 206 Mass. 492.

As hereinbefore stated, the plaintiff in the case at bar rested his right to recovery upon the theory that the relationship of host and guest existed between plaintiff and defendant and that the defendant violated a duty which he owed to plaintiff arising out of such relationship. There was ample evidence in support of defendant’s position that the parties were engaged in a joint enterprise, and that the defendant on the facts of the case did not owe to the plaintiff the duty which plaintiff alleged was violated. Plaintiff did not make out his case by merely proving that he was a lawful occupant of the automobile, nor did he show that he was technically a passenger therein.

The trial court did not err in excluding the testimony of a witness for defendant, a Mrs. Fox, who was asked to give her judgment as to the speed at which the automobile was traveling at the time of the accident. The witness testified that she had frequently ridden in an automobile and that she had noticed the speed at which automobiles traveled. It was not at all clear from her testimony that she was competent to judge of or that she had any opinion as to the rate of speed at which the automobile was traveling at the time of the accident. On direct examination she testified that the automobile was traveling about 50 miles an hour. This testimony was on motion stricken out. On cross-examination, however, she testified:

‘‘I thought a great many times about how ears go by the way I was riding myself. We never ran ours as fast as that. I thought it was going much faster than I ever go. We drive our car between thirty and forty miles. I think this car was going that anyway. I certainly will swear that that automobile was moving in excess of thirty miles an hour.”

Her testimony with respect to the speed of the car, whatever its value, was before the jury.

The judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    The Evangelical Lutheran St. Stephan’s Congregation, Defendant in Error, v. James F. Bishop, Administrator, et al. (Defendants). Frauen Verein des Deutschen Altenheim, Plaintiff in Error.
    Gen. No. 24,507.
    1. Chabities—when death of inmate transferring property to old people's home necessitates return of property. Contract for admission to an old people’s home under which the applicant was to pay a certain sum in cash and to turn over all of her estate to the home, the applicant to be accepted as an inmate on probation for the period of one year, the contract reciting that it was to be of “binding force only for the period of one year,” but should applicant continue in the home beyond that period, then the contract should be binding during her life, in conjunction with the by-laws of the home authorizing a refusal of final admission at the end of the year or a withdrawal by applicant, and providing for a refund in such cases less a charge for maintenance, construed as requiring a return of the estate so transferred, where the applicant died before the expiration of the period of one year.
    2. Chabities, § 22

      —wh#n contract for admission to'-charitable institution construed against it. Where a eontractjietween a charitable institution and an applicant for admissioiC to the institution was prepared by it, language of the contract,'‘where doubtful and uncertain, will be construed most strongly against it.
    3. Bills and notes, § 377

      —when ownership of note presumed. Possession of a note duly indorsed and delivered by the payee therein named creates a presumption of ownership of the note in the holder, but the presumption may be overcome.
    Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed January 27, 1919.
    Huttmann, Olotes & Carr, for plaintiff in error.
    Francis H. McKeever, for defendant in error; Charles Goodman and Lewis C. Coyner, of counsel.

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

   Mr. Presiding Justice Dever

delivered the opinion of the court.

By this writ of error it is sought to reverse a decree of the Superior Court on a hill of interpleader filed by the Evangelical Lutheran St. Stephan’s Congregation. James F. Bishop, administrator of the estate of Margaretha Paetzman, deceased, and The Frauen Verein des Deutschen Altenheim were made parties defendant.

The complainant, the Evangelical Lutheran St. Stephan’s Congregation, on April 4,1910, during the lifetime of Margaretha Paetzman, executed and delivered to her a promissory note for the sum of $2,000. There was due on this obligation at the time the decree was entered in the Superior Court the sum of $1,610.98.

On May 15, 1913, Margaretha Paetzman, being then 76 years of age, made an application for admission to the Frauen Verein, otherwise known as the German Old People’s Home (to be hereinafter called “The Home”), in which application she agreed, in case of admission, to transfer to “The Home” her entire property and estate. On April 27, 1914, the deceased and “The Home” entered into an agreement under which it is asserted “The Home” became the legal owner of the note delivered by complainant to deceased. Under the terms of this writing “The Home” agreed to admit deceased as an inmate “into said Deutschen Altenheim for a period of one year from this date, respectively for life.” The contract also provided as follows:

“It is further covenanted and agreed between the parties executing this contract that the provisions thereof shall temporarily be of binding force only for the period of one year from this date, during which period the said Margaretha Paetzman may voluntarily leave the institution or the said Frauen Verein may dismiss her from the institution, in accordance with the provisions of said statutes' and by-laws of said Frauen Verein concerning the refund of the paid-in admission fee and the property and estate conveyed. Should said Margaretha Paetzman, after the expiration of that year, remain in the institution after mutual agreement thereupon, then and in such case the provisions of this contract shall be effectual and binding for her lifetime.”

Deceased agreed to pay to “The Home,” at the time the contract was entered into, the sum of $300 and also to convey to “The Home” for its use and benefit all the property and estate which she then owned or might thereafter acquire.

Section 5 of article 1 of the by-laws of “The Home” provides that:

“All persons to be admitted must submit to a probation period of one year. Upon the expiration thereof the executive board is at liberty to refuse to the applicant a final admission, also the applicant is at liberty to withdraw. In both eases the admission fee paid in will be returned to him after deducting a reasonable charge for board.”

Section 3 of article 3 provides that:

“The admission fee for inmates of the institution is 300 dollars of which 25 is to accompany the application for admission and the 275 dollars are to be paid at the time of admission.”

Section 1 of article 4 of the by-laws requires applicants owning any estate to assign the same to the institution before admission.

By section 3 of article 4, it is provided that:

“In case of a withdrawal approved by the executive board or in case of the demission from the institution of an inmate the estate so transferred shall be returned to the inmate after deducting therefrom the charge for board and any expenses accruing to the institution.”

• The evidence shows that deceased paid to “The Home” the sum of $300 provided for by the by-laws and the contract, that she entered “The Home” on May 7, 1914, and that she died on April 24, 1915, less than one year after her admission to “The Home.”

The controversy between the parties defendant is as to whether “The Home” or deceased’s administrator is entitled to the balance dne on the note which was indorsed and delivered by deceased to “The Home,” as was required of her under the contract and under the by-laws of the institution.

The cause was referred to a master, who sustained the contention of “The Home” and found that the legal title to the note was vested in it; that it was the lawful owner and holder thereof and was entitled to the proceeds thereof. Exceptions to this report were sustained by the chancellor and a decree was entered in the cause which found that James F. Bishop, the administrator, was entitled to the note and its proceeds. We do not think that there can be much doubt about the correctness of this decree. The contract entered into by deceased and “The Home” provides specifically that it was to be of temporary “binding force, only, for a period of one year” from its date. Margaxetha Paetzman died before the expiration of the temporary period of one year. It was provided in the contract that should Margaretha Paetzman remain in the institution after the expiration of the year “after mutual agreement thereupon, then and in such case the provisions of this contract shall be effectual and binding for her lifetime. ”

It is true that the second paragraph of the contract provides that “The Home” was obligated to admit deceased “as an inmate for the period of one year from this date, respectively for life.” The phrase “respectively for life” cannot be said to either extend or modify the meaning of the other quoted provisions of the contract. This phrase when read with the whole contract must be held to be meaningless and was apparently inserted in error.

“The Home” is a charitable institution. Its bylaws were adopted by it, and it is a fair inference, when the character and relationship of the parties are considered, that the contract in question was also prepared by it. Under these circumstances the language of the written contract, where it is doubtful and uncertain in its meaning, should be construed most strongly against it. It is our view, however, that when the by-laws and the contract are read together no obscurity or ambiguity appears in the language used, or that doubt can be entertained as to the actual intention of the parties.

The by-laws of “The Home” and the contract when read together show the purpose of the parties to the contract without any ambiguity. While no express provision of either the by-laws or the contract provides for such a contingency as arose as the result of the death of Margaretha Paetzman, yet we think that the contract is almost explicit that no binding force was to attach thereto for a longer period than one year, as it is expressly provided therein that if said Margaretha Paetzman should remain in the institution after the expiration of one year, the contract was to become “after mutual agreement” effectual and binding for her lifetime.

Section 5 of article 1 of the by-laws provides that all persons admitted to the institution were compelled to submit to a probationary period of one year, at the expiration of which time the executive board of “The Home” had the power to refuse “the applicant a final admission; also the applicant has the liberty to withdraw,” and the contract seems to have been drawn in full compliance with these provisions of the by-laws.

The third paragraph of section 1 of article 4 of the by-laws provides that in case of withdrawal or demission from the institution the estate of an inmate transferred to it was to be returned “to the inmate, after deducting therefrom the charge for board and any expenses accruing to the institution.”

It seems clear, then, that the intention of the parties, as gathered from a reading of the contract and the by-laws, was that deceased had the right to sever her relationship with “The Home” at any time during the probationary period of one year, and that she could, under the terms of the by-laws and contract, become-a permanent inmate of the institution only after the end of this period and by a mutual agreement with its executive board.

It may be assumed, as urged by counsel for “The Home,” that deceased’s admission to the institution and the delivery of the note in question to it were voluntary acts on her part, but it is evident that neither party to the contract intended that such acts were to be irrevocable. Under the contract “The Home” had the power to sever its relationship with deceased at the end of the probationary period, and even if the contract was silent as to her rights in the event “The Home” should elect not to admit her permanently to the institution, the law would not permit it to act in such manner as to work an evident injustice to her. The possession by “The Home” of the note, duly indorsed and delivered by the payee named therein, does, as urged by counsel, raise a presumption of ownership of the note in the holder. Henderson v. Davisson, 157 Ill. 379; Dunlap v. Savage, 196 Ill. App. 378. This presumption, however, may be overcome, and we think it has been overcome by the evidence in this case.

In Clark v. Mallory, 185 Ill. 232, the court said:

“While courts will uniformly endeavor to ascertain the intentions of the parties in construing a contract between them, and for that purpose will look into the surrounding circumstances at the time the contract was executed if the language of the instrument is ambiguous or its meaning uncertain, still when the language employed is unequivocal, although the parties may have failed to express their real intention, there being no room for construction, the legal effect of the instrument will be enforced as written. ’ ’

The decree of the Circuit Court will be affirmed.

Decree (¡affirmed.