author: Per Curiam.

text:
    Charles P. Wilson, Appellee, v. Hartford Fire Insurance Company, Appellant.
    1. Insurance, § 119

      —when liability on contract to renew policy question for jury. In an action of assumpsit on a parol agreement to renew a policy of fire insurance to recover for a loss by fire which occurred after the expiration of the original policy, refusal of the court to direct a verdict for defendant at the close of all the evidence held proper, in view of the facts disclosed by the record.
    2. Insurance, § 59*—effect of limitations on powers of agent. A person dealing with an insurance agent, having no notice of limitations on the powers of the agent, will be justified in believing that the power of the agent is coextensive with his undertaking.
    3. Insurance, § 97*—power of agent to make oral contract. Agents of an insurance company have power to bind the company by a parol contract.
    4. Insurance, § 704*—when giving of instruction based on proof of allegations of declaration reversible error. In an action for fire insurance where the declaration was defective in not alleging the interest of plaintiff in property, and the policy provided that the loss was payable to a third party, if on buildings, otherwise to the insured as his interest may appear, the giving of instructions which directed a verdict for plaintiff if the jury believed from the evidence the allegations of the declaration, held reversible error, as allowing recovery even if the evidence had shown that plaintiff had no interest in the property.
    5. Istbuctions, § 129*—essentials when peremptory. A peremptory instruction must include every element necessary to a recovery.
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kjmbbough, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed May 15, 1914.
    Rehearing denied June 25, 1914.
    O. M. Jones and Barger & Hicks, for appellant.
    Frank Lindley, Fred B. Penwell and Walter C. Bindley, for appellee.

       See minóla Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Per Curiam.

This was an action of assumpsit to recover upon a parol agreement to renew a fire insurance policy at the time of its expiration. The declaration contains one count, in substance, alleging that appellant, on the tenth day of December, 1909, entered into a certain agreement with appellee, in the nature of a fire insurance policy, which policy is set out in haec verba in the declaration, reciting therein that for the consideration of $48.36 the appellant insures Dr. Charles P. Wilson against loss by fire to the property, which is minutely described in the policy, for the aggregate sum of $2,700, for the period of one year; and the declaration further alleges that before the expiration of said policy, the appellant and appellee entered into an oral agreement that appellee would leave said policy with the agents of appellant, and that appellant would, on or before the expiration of said policy, renew the said policy or contract of insurance upon the same property, for the same party and at the same price, the premium therefor to be paid by appellee when bill for the same should be presented for payment, and that appellee has been ready, able and willing at all times to pay said premium when requested; that notwithstanding the said agreement, the appellant failed to renew he said policy or contract for insurance, and that on the eleventh day of December, 1911, the property in the said contract mentioned was consumed by fire, “Whereby the plaintiff (appellee) then and there sustained loss and damage to the amount of the insurance thereon”; that appellee gave notice of said loss and furnished to the appellant a particular account of loss, signed and sworn to by appellee, stating “the exact nature of the title and interest of the assured”; that “he has sustained loss and damage by fire on the said property,” and that the appellant failed to pay the amount provided to be paid in the event of loss.

To this declaration a plea of the general issue was filed; the cause was heard and judgment rendered against the appellant in the sum of $2,150, and from that judgment this appeal has been perfected.

Among the other errors assigned by appellant is the refusal of the court, at the close of all the evidence, to give a peremptory instruction to the jury to find for the appellant.

This record clearly discloses the facts following: That Messrs. Hughes and Wilson were acting in the capacity of agents for the appellant at the time of the making of the contract here involved, and had been such agents for more than five years; that as such agents they were supplied with records, policies on blanks signed by the officers of appellant, reports, forms and indorsement slips, and had been, during the continuance of such agency, issuing policies upon the blanks furnished by the appellant; that the policy mentioned in the declaration was issued in this manner on the tenth day of December, 1909, for the period of one year, and the premium therefor paid to said agents and remitted to appellant; that sometime before the expiration of the policy, appellee took the policy back to the office of the agents of appellant and left it there, and entered into an agreement for the renewal of the policy on or before its expiration.

This parol contract of renewal was testified to by appellee and was not contradicted by either of the agents of appellant, although they were both upon the stand, nor by any one else. The proof of loss and the value of the property destroyed was established by the evidence of appellee and also that of Mr. Hughes, one of appellant’s agents, and notice of loss was served upon the Company.

Under our view of the facts disclosed by this record, the court properly refused to grant the peremptory instruction asked at the close of all of the evidence by appellant.

It is further urged, as grounds of error, that the agents of appellant did not have power and authority to find the appellant Company by a parol contract.

The rule is well settled in this State that a person dealing with an agent, having no notice of limitation of the power of the agent, will be justified in believing that the power of the agent is coextensive with his undertaking. This doctrine is well recognized and announced in the following cases: Hartford Fire Ins. Co. v. Farrish, 73 Ill. 166; Firemen’s Ins. Co. v. Kuessner, 164 Ill. 275; Fire Ass’n. of Philadelphia v. Smith, 59 Ill. App. 655; Continental Ins. Co. v. Roller, 101 Ill. App. 77.

So far as the law is concerned, “An insurance conract is not different from other contracts. If the minds of the parties have met in regard to the essential facts of the contract, it matters not whether such contract be in writing or by parol.” Ostrander on Fire Insurance, par. 12.

The power to make contracts of insurance by parol agreement is declared in the case of Continental Ins. Co. v. Roller, supra, and also in Firemen’s Ins. Co. v. Kuessner, supra.

It is also insisted that the court erred in giving the first and sixth instructions given at the request of appellee. The first instruction is as follows: “If you further believe from the evidence that, all the allegations contained in plaintiff’s declaration are true, then in such state of the proof your verdict must he for the plaintiff. ’ ’ The sixth is very similar with the exception that it sets up the allegations of the declaration.

There is neither any allegation in the declaration that the property destroyed was the property of the appellee, nor that he had any interest therein. The policy provides that the “loss, if any, under this policy payable to A. L. Dillon if on dwelling or barn, otherwise to insured as interest may appear, subject, nevertheless, to all the conditions of this policy.” The loss on the buildings is payable to Dillon. If every allegation of the declaration was proved, the instruction directs a verdict and instructs the jury to find a verdict for appellee on the proof of such allegations. A peremptory instruction must include every element necessary to a recovery. Cromer .v. Borders Coal Co., 246 Til. 451; Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544.

Even if the evidence had shown that appellee had no interest in the property, the jury were directed to find in favor of appellee, if the allegations of the declaration were proved. The declaration being defective in not alleging the interest of the appellee, the giving of these two instructions was reversible error.

The judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    A. Milhim, Appellee, v. German Fire Insurance Company, Appellant.
    IirstJBANCE, § 663

      —when evidence of incendiary origin of fire and conspiracy to defraud insurer sufficient to defeat recovery. In an action on a fire insurance policy to recover for the loss of a stock of goods hy fire, held that a judgment for plaintiff could not be sustained and it was reversed on the ground that the preponderance of the evidence showed that the fire was of incendiary origin, and that a conspiracy existed between plaintiff and. others to defraud the insurance company by misrepresenting the value of the goods before the issuance of the policy and in fraudulently misrepresenting the value of the goods destroyed.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding. Heard in this court at the April term, 1913.
    Reversed with finding of fact.
    Opinion filed May 15, 1914.
    Rehearing denied June 25, 1914.
    Charles B. Obermeyer, Spencer Ewing and Wight & Alexander, for appellant.
    DeMange, Gillespie & DeMange, for appellee.

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

   Per Curiam.

This is an action on an insurance policy brought by plaintiff against defendant Company for an alleged loss by fire, whereby goods covered by this policy were damaged or destroyed. The trial below resulted in a judgment against the defendant Company for $1,643.75 on a policy for $1,500; the defendant prosecutes this appeal.

Plaintiff herein, a Syrian twenty-five years of age, had been in this country twelve or fifteen years, and had worked at various occupations. He married a girl hy the name of Barka; his wife had two brothers in this country, one, David Barka, resided at or near Indianapolis, and the other, Samuel Barka, resided in Iowa. Plaintiff married his wife against the wishes and desires of her family, running away with her to the city of Detroit, where they remained several days; they then returned to Cincinnati, where they were married. Plaintiff was located for a time in Cincinnati, but during a greater portion of the time that he has been in this country he traveled as a peddler of imported Syrian goods. On the nineteenth of August, 1910, he opened a store in the city of Bloomington, from which he claims to have supplied one hundred or more peddlers of his own country with goods, wares and merchandise which they peddled over the country.

Plaintiff did business with numerous Syrian merchants, one whose firm was conducted under the name of Brown and Company, another under the name of Solomon Brothers. Solomon Brothers had stores located in Chicago, Cincinnati and New York. On the fourth day of October, 1910, less than two months after the store was started at Bloomington, the fire occurred. At the time of the fire the plaintiff held insurance policies amounting to $13,000 upon a stock of goods. After an investigation of the loss and the conditions surrounding the fire, the defendant Insurance Company refused to pay its policy, insisting that plaintiff, together with the Solomon Brothers, who operated the Chicago store, together with a Syrian at Springfield, Illinois, by the name of A. W. Shaheen, conspired to open the store at the city of Bloomington, secure policies of insurance thereon, set fire to the store and recover upon the policies.

Defendant insists that this condition is shown to exist by this record; that the plaintiff did not have the amount of goods in the store at Bloomington that he claims; that he was not the sole and unconditional owner of the said property, and that the place was set on fire either by plaintiff or by and through his connivance and direction in accordance with the conspiracy claimed to have existed.

In support of the contention that the store was set on fire by plaintiff, or with his knowledge and consent or under his direction, defendant produced a letter written by plaintiff in the Syrian language to his brother-in-law, Samuel Barka, at some town in the State of Iowa.

While plaintiff was located in Cincinnati he became involved in trouble with his wife’s brother, David Barka and one Haboush, who then resided in Cincinnati but afterwards were located in Indianapolis, Indiana. After receiving this letter written by plaintiff, Samuel Barka went to Indianapolis; there he visited his brother David and showed him the letter received from the plaintiff. David Barka refused to return the letter to his brother Samuel, and it is contended by defendant that this letter contained a statement that plaintiff had recently opened a store for Solomon Brothers at Bloomington and that they intended soon to burn it; while plaintiff, on the other hand, contends that .that part of the letter which is as follows :

“I give you the news I have opened a store for Solomon Brothers, and pretty soon they want to burn it” was not written in the letter by him but that that part of the letter is a forgery and was placed there by David Barka or Haboush for the purpose of revenge and injuring plaintiff, and that the motive for this forgery and revenge was induced from the fact that at one time the plaintiff drove the said David Barka from his place of business in Cincinnati, and that Haboush, the other party to the forgery, desired that his son, Louis Haboush, should marry the sister of David Barka, who was now the wife of the plaintiff, contending that Haboush desired to get rid of the plaintiff so that his son could marry this woman and that plaintiff prevented this marriage by running away with the woman and marrying her.

After Samuel Barka had given this letter to his brother David he asked David to return it and insists that David told him he had burned the letter, at least, David did not return the letter, and Samuel and David had a fight over David’s failure to return it. David in

the meantime had taken the letter to a lawyer in Inlianapolis named Buick and told him the contents thereof; this lawyer then wrote to the State’s Attorney at Bloomington, Illinois, to ascertain whether there had been a fire at that place in a store carried on by plaintiff, and being informed that there had been such a fire he then took the matter up with the insurance companies, furnishing them the letter., David Barka translated the letter for the Indianapolis lawyer and made an affidavit concerning it.

Plaintiff testifies that David Barka afterwards wrote him concerning this letter and concerning the forged part of it, admitting that he had committed a wrong against plaintiff, that he together with Haboush had committed the forgery with the intention of getting plaintiff into trouble and that he, David Barka, was drunk at the time he was in the office of the lawyer in Indianapolis, but notwithstanding the character and importance of this letter alleged by plaintiff to have been written by David Barka, plaintiff lost the letter and was unable to produce it at the trial, but produced David Barka at the trial and he testified to having written the letter to plaintiff and to its contents as contended by plaintiff, and testifies that after he had received this letter from Samuel, his brother, he together with Haboush went to various stores in Indianapolis for the purpose of comparing this ink and of obtaining a similar ink with which they could write in the letter the clause that it was contended was a forgery; that he and Haboush practiced upon this writing after they obtained ink that was similar and could not be distinguished from the original and wrote in the space equal to that which they contend was vacant in the letter the words, “I have a store for Solomon Brothers, and a short time they are going to burn it, ’ ’ or that Anton Haboush wrote the eleven words contained in the letter and he said to him, “You fix it up,’’ and Louis Haboush said, “I will do it.”

The evidence of numerous friends and relatives of Milhim, the plaintiff, is that in their opinion these words in this letter is a forgery, but the preponderance of the evidence by disinterested parties who did not know plaintiff is that the lines alleged to be a forgery are written in the same hand and with the same ink as the balance of the letter.

The greater part of the goods contained in this store at Bloomington were furnished by the Solomon Brothers, who claimed to have stores in Chicago and New York. There are seven Solomon brothers, who operated under various names, in one place under the name of Brown and Company and in another under the name of Farris. One of the Solomons was known in Bloomington and Springfield as Charles Farris, but his real name was Charles Solomon. This Charles Solomon denies having been at these places, and especially at Bloomington a day or two before the fire, but the evidence is conclusive that he was at these places and that he is the same person that was known in Springfield and Bloomington as Charles Farris.

This firm of Solomon Brothers, or J. Brown and Company, had been adjudged bankrupts but a short time before they claim to have furnished these goods to the plaintiff, and while it is claimed that plaintiff is in debt to them on account of purchases made by him for the Bloomington store, yet in the schedule of creditors of the firm of Solomon Brothers or Brown and Company in the bankruptcy proceedings appears the name of the plaintiff. This schedule discloses that the bankrupt firm was indebted in the sum of $411.28 to plaintiff who, as well as going by the name of A. Milhim, was also known as Abraham Corey. This name also appears in the bankrupt schedule as a creditor of the firm to the amount of $117.35; plaintiff was also known by the name of Abraham El. Khourey. This name also appears upon this schedule as a creditor of the bankrupt firm to the amount of $205; plaintiff sometimes adopted the name Abraham El. Corey, and this name also appears in the schedule of the bankrupt as a creditor to the amount of $177.34. These accounts áre all listed as desperate in the bankruptcy proceedings.

Charles Solomon, under the name of Farris, was a frequent attendant and helper at the store of Shaheen and Company in Springfield. One Abram Farrah, a Syrian, testifies that he was at work for Shaheen and Company while Charles Solomon, alias Farris, was here and that afterwards the Shaheen store was burned in Springfield; that during the time that he was employed in the store Charles Solomon, alias Farris, together with other persons who came to the store, were engaged in changing the books or making a set of books for the Shaheen store at Springfield; that after having-completed one set, Charles Solomon remarked that they were not sufficient and that they could not be relied on; that he put them in the stove and burned them, and that afterwards another set was prepared which was used as a basis of recovery for the loss at the Shaheen store. Farrah further testified that he heard a conversation at the Shaheen store between his uncle and Charles Solomon in which his uncle said, “I am surprised, Abram Milhim had a store, had about five hundred dollars worth of goods in the store and he had a fire and is going to get twelve thousand from the insurance company, see how smart and clever he is, ’ ’ and that to this remark Charles Solomon replied, “Not because he was smart and clever that he is going to get that, because we were smart and clever, we did that, we give him the lesson, and showed him how he is going to get twelve thousand dollars for five hundred dollars worth of goods, we were to teach you the same, and you would not listen.” This witness then testifies that he was called into the presence of his uncle and Charles Solomon and they told him if anything happened to the store they wanted him to keep quiet, and when he threatened to tell the truth about what he had seen and heard, Charles Solomon then told him to go away so that he could not and would not be called upon in case of any proceedings had concerning the change of the books or the conversation he heard.

While plaintiff contends that he knew nothing of the loss or the cause of the fire in Bloomington and that he had from $17,000 to $19,000 worth of goods in this store and that they were virtually all destroyed by fire, the evidence is conclusive that the fire in this store did not cover a space over ten by twelve feet and was in the rear of the store that had an area of nine hundred and sixty square feet; that the goods that were destroyed were not of an expensive character; the total value of the goods in the seven-eighths of the store that was not burned amounted to $2,100; and that it was utterly impossible from the extent of the fire that occurred in this room on that night that any such an amount of goods as claimed by plaintiff could have been destroyed. The goods within the space burned over were not all burned, some were kicked out on the sidewalk by the firemen or trampled upon on the floor and a few fell out of the rear door where the glass had been broken.

On the night of the fire plaintiff was in the city of Chicago, having gone there the day preceding, and received a telegram on the morning after the fire to return home. While Milhim was in Chicago he visited the Solomon Brothers. The evidence further discloses that two persons, a Miss Marx and a Miss Davidson, were employed at various times working upon the books in the store of Milhim at Bloomington and made entries in these books.

Miss Marx made the index to the ledger kept at that store, although Milhim denies that she was ever there or ever worked upon his books; he also denies that Miss Davidson ever worked upon the books, although the evidence is conclusive that she did. The books produced by plaintiff for the purpose of establishing the amount of his loss in this store, these witnesses testify, are not the hooks upon which they worked or in which they made entries.

The evidence in this record is very voluminous, and it is very conflicting; but after a careful examination of the entire record and the character of the evidence, we can only arrive at the conclusion that- the manifest weight and clear preponderance of the evidence in this record discloses and proves to our satisfaction that the fire was of incendiary origin; that a conspiracy existed between Solomon Brothers and plaintiff for the purpose of defrauding the defendant Insurance Company, and that the books produced upon the trial for the purpose of proving the amount of goods contained in this store at the time of the fire are fraudulent and were made as a result of the conspiracy between Solomon Brothers and Milhim; that Solomon Brothers are interested in this store; that Milhim is not the sole and unconditional owner of this property, and that the plaintiff and Solomon Brothers are guilty of an attempt to defraud the Insurance Company. For these reasons this judgment cannot be permitted to stand, and it will be reversed with a finding of fact. The clerk will enter in the judgment rendered in this court that plaintiff with others was and is guilty of an attempt to unlawfully and fraudulently carry out a conspiracy entered into by them to defraud the defendant Insurance Company by misrepresenting the value of the goods insured before the issuance of the policy and that he fraudulently misrepresented the value of the goods destroyed.

The judgment is reversed.

Reversed with finding of fact.


author: Mr. Presiding Justice Thompson

text:
    First National Bank of Arcola, Appellee, v. J. R. Heeb, Appellant.
    1. Guaranty, § 36

      —when testimony as to existence of stamped guaranty over signature inadmissible. In an action by a bank against defendant as guarantor on notes, where the issue was whether the guaranty was stamped on the notes when they were indorsed to the bank by defendant, testimony of the cashier that the guaranty was on the notes over the signature of defendant the first time he saw the notes, which was a few days after the notes were taken by the bank, held inadmissible as being too remotely connected with the issue before the jury.
    2. Appeal and ebbor, § 1507*—when cross-examination of witness harmless. In an action against an indorser on an alleged guaranty written above the name of the indorser, permitting a witness who testified on behalf of the defendant to be asked on cross-examination whether the bankruptcy proceedings against the maker of the note was voluntary or involuntary, held harmless error.
    3. Witnesses, § 227*—when cross-examination improper. In an action by a bank against defendant on an alleged guaranty on promissory notes where the issue was whether the guaranty was stamped on the notes when defendant indorsed them to the bank, an objection to a question asked of the cashier of the bank on cross-examination, “if on other notes in the bank he had not noticed the signature was in with the stamp or underneath it as a rule,” held properly sustained, where the notes asked about were not in the case or presented to him for inspection and the question did not pertain to anything testified to by the witness.
    4. Guaranty, § 36*—admissibility of evidence to prove time guaranty was stamped on note. In an action against a defendant on his alleged guaranty on promissory notes where the issue was whether the guaranty was stamped on the other notes when defendant indorsed them to plaintiff, the defendant on rebuttal offered in evidence two experimental exhibits, one being a stamp impression on paper with a signature written over the stamp, and the other being a stamp impression over a signature, and then asked witnesses if they could distinguish whether the stamp mark or the signature was made first, held that objections to the exhibits and questions were properly sustained, for the reason that such evidence could be offered by defendant only when making out his defense, and not in rebuttal, and because the stamping and writing were not shown to have been executed under similar conditions to those in controversy.

      5. Bills and notes, § 462

      —when instruction as to extension of time of payment not objectionable. In an action against defendant on Ms alleged guaranty on promissory notes, an instruction given for plaintiff on the question whether defendant was relieved from liability by an extension of time to the maker for the payment of the notes, held not subject to the objection that it was “a complete instruction to find for the plaintiff if the notes were guaranteed.”
    6. Bills and notes, § 462*—when instructions as to contract of guaranty of indorser erroneous. In an action against defendant on his alleged guaranty on promissory notes, where the issue was whether the guaranty was stamped on the notes before defendant indorsed them to the plaintiff, an instruction given for plaintiff and another given for defendant as modified, held erroneous, as allowing a recovery if the defendant agreed to guaranty the notes before he indorsed them to the plaintiff, but held that the giving of plaintiff’s instructions and the modification of defendant’s instructions were harmless in view of special findings of the jury.
    7. Bills and notes, § 433*—when parol evidence inadmissible to vary terms of payee’s indorsement. The name of the payee appearing on the back of a note is evidence that he is an indorser, and parol evidence of what occurred before the indorsement is not admissible to contradict or vary the contract of indorsement.
    8. Appeal and ebbob, § 1523*—when error in giving or refusing instructions harmless. Where special findings by a jury show that appellant was not injured by the refusal of a correct instruction or the giving of an incorrect instruction, the error is harmless.
    9. Appeal and ebbob, § 1012*—when improper remarks of court or counsel not preserved for review. Improper remarks of court or counsel are not preserved for review, where no objection was made to the remarks of the court and neither was mentioned in the written motion for a new trial.
    10. Appeal and ebbob, § 613*—when grounds for new trial waived. Grounds for a new trial not set forth in a motion for a new trial are waived where the motion was in writing.
    Appeal from the Circuit Court of Coles county; the Hon. E. R E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed July 2,1914.
    Abel L. Allen and H. A. Neal, for appellant.
    James W. and Edward C. Craig and Donald B. Craig, for appellee.

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an appeal from a judgment rendered in favor of the First National Bank of Areola against J. B. Heeb as guarantor on five promissory notes.

The notes were executed by the Home Herald Company of Chicago to J. B. Heeb. One note dated November 19,1909, is for $550 due three months after date and was transferred to appellee during the same month; the other notes are for $500 each and are dated January 4,1910; three of them were due February 26,1910, and the other was due three months after date. The notes dated January 4th were transferred to appellee January 6,1910. All the notes bear interest at the rate of six per cent, and are indorsed, ‘1 For value received I hereby guarantee payment of the within note, and waive demand, notice and protest on same when due. J. B. Heeb.”

The declaration contains five special counts and the common counts. Each special count avers the liability of appellant as guarantor on one of the notes. The pleas are the general issue, a plea to each count averring that the notes were indorsed in blank and that the time of payment was extended by appellee to the Home Herald Company without the consent of appellant, and a plea to each count denying the guaranty verified by affidavit. The appellant joined issue on the general issue and the pleas denying the guaranty and filed replications denying the indorsement of the notes in blank and the extension of time, on which issues were joined. The case was tried by a jury, and a general verdict returned for $3,059.25 in favor of appellee together with special findings.

The controversy is (1) whether the liability of appellant was that of a guarantor or that óf an indorser; and (2) whether the time of payment of the notes was extended without the consent of appellant.

The evidence on behalf of. appellee shows that appellant was an employee of the Home Herald Company of Chicago; that he had formerly resided in Areola, Hlinois, and was a boyhood friend of J. E. Beggs, the president of the First National Bank of Areola; and that appellant while visiting his relatives in Areola, in October, 1909, met Beggs and told him he expected to get some notes from the Home Herald Company and asked him whether the appellee would buy them, and that Beggs replied that the bank would buy them on condition that appellant would guarantee them, and that he, Beggs, didn’t know anything about the Home Herald Company and would only buy them on the strength of appellant’s guaranty, and that the notes would have to be sent to the bank for inspection.

The evidence on the part of appellee further shows that the notes shortly after their dates, the $550 note at one time and the remaining four notes at another time, were sent to the bank without any indorsement, and that the bank stamped the guaranty across the back and returned them to appellant for his signature under the guaranty; that the notes were thereafter returned to the bank with appellant’s name written under the guaranty and the notes were then taken at a discount of one per cent.

The evidence for appellant is that the notes were forwarded to appellee with his indorsement without any guaranty on them and without any previous arrangement for discounting them.

After the discounting of the notes appellant went to Europe, where he remained until the fall of 1910. Each of the notes were presented for payment when they fell due, and all except the note maturing April, 1910, were protested for nonpayment. The Home Herald Company in April, 1910, became an involuntary bankrupt. Shortly after the note first maturing was protested for nonpayment, one Johnson, secretary of the Home Herald Company and of the World’s Events Company, which succeeded the Home Herald Company, went to Areola on behalf of the Home Herald Company and wanted an extension of the time of payment of the five notes. The evidence of Beggs and Allison, the cashier of the bank, is that Beggs stated to Johnson that appellee was looking to appellant for payment of the notes on his guaranty, and that appellant was in Europe and that appellee could not extend the time of payment for the reason that would release appellant; that he would not even receive the interest due on the notes and protest fees for fear such act would release appellant; that Johnson stated he was going to send appellee a note and some stock in the World’s Events Company as additional security to protect appellant, and that Beggs stated that whatever Johnson wanted to leave for appellant would be all right, but that appellee would not extend the time of payment or do anything in the absence of appellant that would jeopardize the rights of appellee against appellant.

Johnson did send a note made by the Home Herald Company for $2,550 payable to the First National Bank of Areola four months after date and a certificate for twenty-five shares of preferred stock in World’s Events Company, the note reciting that it is given as collateral to the five notes given to appellant.

Beggs received this $2,550 note and stock accompanying it, kept it in his desk, but would not accept it, and did not return the five original notes, and testified that he made no arrangement or agreement for any extension of the time of payment of any of the five notes.

It is insisted that the court erred in permitting Allison, the cashier, to testify that the guaranty was on the notes over the signature of appellant the first time he saw the notes. This was a few days after the notes were taken by the bank. This evidence was but very remotely, if at all, connected with the issue before the jury. It was, however, before any controversy had arisen between the parties and was a circumstance entitled to little, if any, weight.

It is also contended that the court erred in permitting Johnson, a witness who testified on behalf of appellant, to be asked on cross-examination whether the bankruptcy proceeding against the Home Herald Company was voluntary or involuntary. It had been proved without objection that the Home Herald Company had been adjudged a bankrupt. Thereafter, on re-examination of the witness Johnson, appellee was permitted over objection to show that it was an involuntary bankrupt. That was immaterial hut was harmless error.

On the cross-examination of Allison, the cashier of the bank, an objection was sustained to a question, “If on other notes in the bank he had not noticed the signature was in with the stamp or underneath it as a rule”? The other notes asked about were not in the case or presented to him for inspection. How other parties might place their names was immaterial and was not cross-examination of anything testified to by the witness.

In rebuttal, appellant sought to introduce in evidence two experimental exhibits, one was a stamp impression on a paper on which a signature had been written over the stamp, in the other the signature was first written on the paper and then the impression from the stamp placed over the signature. The evidence showed that these experimental stamp marks and signatures were substantially made at the same time. Witnesses were asked if they could distinguish which was placed first. Objections were sustained to the questions and these exhibits. This it is contended was error. The objection to this evidence, if it had been otherwise competent, was properly sustained for two reasons: First, because the evidence, if competent, should have been offered in making out the defense and not in rebuttal; and second, because the stamping and the writing were not shown to have been executed under similar conditions to the stamping and writing in controversy. The stamping and writing in appellant’s exhibits occurred substantially at the same time, while the stamping and writing on the notes in controversy were several hours apart. 5 Ency. of Evidence, 483. There is no reversible error either in the admission or rejection of evidence.

The appellant contends that the court erred in giving appellee’s eighth instruction. Counsel for appellant set forth in their brief the instruction under quotation marks as follows:

“The Court instructs the jury that to release a guarantor from payment of a note that he has guaranteed to pay,, the holder of the note must agree to not only extend the time of payment of the note, but must agree to extend the time of the payment for some definite fixed time and must receive for the agreement to extend the time a valuable consideration and the extension must be made without the consent and knowledge of the guarantor; and if any of these elements are lacking the guarantor is not released.
“So in this case, if you believe from a preponderance of the evidence that the defendant guaranteed the payment of these notes at the time he sold them to the plaintiff, then, and in that case, the defendant is liable to the plaintiff on the said notes and your verdict should be for the plaintiff.”

Counsel say: “It is a complete instruction to find for the plaintiff if the notes were guaranteed.” A reference to the abstract and record shows that they have omitted a subsequent and very material part of the instruction, which is: “And the only way the defendant can free himself from such liability under the issues in this case is to prove by a preponderance of the evidence that the plaintiff agreed with the Home Herald Company without his knowledge and consent to extend the time of payment of the said notes for four months and that the plaintiff did so in consideration of the Home Herald Company putting up with it this note for $2,550 and the stock certificate introduced in evidence, but if you believe from the evidence that the defendant guaranteed the payment of these notes and that the defendant has not proven the defense of extension of time of payment as herein outlined, by a preponderance of the evidence, your verdict should be for the plaintiff.”

The omitted part of the instruction remedies the objection that the instruction directs a verdict if the jury believe the guaranty was proved.

It is also insisted that the court erred in giving appellee’s thirteenth instruction and in modifying appellant’s fourth. The appellee’s thirteenth tells the jury that if they believe from a preponderance of the evidence that appellant agreed to guaranty the notes before the notes were discounted, then it is immaterial when the stamp was put on the notes, as the appellee in that state of the proof would have the right to place the guaranty stamp on the notes after the appellant had indorsed his name thereon. The appellant’s fourth instruction as asked states that the verdict must be for the appellant if the jury believe the notes were indorsed in blank and sent to the bank and the guaranty stamp was placed on the notes after their receipt by the bank. The instruction makes no reference to any agreement to guarantee the notes made either prior or subsequent to the indorsement. The court modified the instruction to correspond with appellee’s thirteenth.

If the appellant at the time of or after signing his name on the back of the notes authorized the guaranty to be placed above his name before appellee would discount them, then the appellee would have the right to place the guaranty there. Kaestner v. First Nat. Bank of Chicago, 170 Ill. 322. The general rule, however, is that the name of the payee appearing on the back of the instrument is evidence that he is an indorser, and parol evidence of what occurred before the indorsing of the name is not admissible to contradict or vary the contract of indorsement. Lloyd & Co. v. Matthews, 223 Ill. 477; Johnson v. Glover, 121 Ill. 283; Hately v. Pike, 162 Ill. 241; Martin v. Cole, 104 U. S. 30. We find nothing in the Negotiable Instrument Act changing this well-settled rule regarding the transfer of negotiable paper. We conclude that appellee’s thirteenth instruction and the modification of appellant’s fourth were erroneous, but this error in the instructions is shown to be harmless by the special findings returned by the jnry.

At the request of the appellant the jury were instructed to answer the following interrogatories:

“First: Did the plaintiff accept of the Home Herald Company a note for $2,550 dated February 26,1910, due in four months after date and a certificate for twenty-five shares of preferred stock of the World Events Company, and did it, in consideration of said notes and stock, extend the time of payment of the five notes sued on in this case, for the period of four months from February 26, 1910?
“Second: Was the guaranty which appears upon the notes offered in evidence, on said notes at the time they were indorsed by the defendant?
“Fourth. Were the guaranties appearing on the notes offered in evidence placed thereon after they were indorsed by the defendant?” The jury answered the first, “No,” the second, “Yes,” and the fourth, “No.”

The special findings of fact returned by the jury on the interrogatories requested by the appellant show that they found that the guaranty stamp was placed on the back of the notes before the signature of the payee was indorsed thereon. There was no objection to any evidence introduced on the question of the guaranty or the agreement to guarantee. The jury having found the facts against the appellant, that the guaranty was first placed on the notes, the appellant was not harmed by the giving of the erroneous instructions since, under the special finding of fact, the jury could not have found otherwise than for appellee. Where special findings by a jury show that appellant was not injured by the refusal of a correct instruction or the giving of an incorrect instruction, the error is harmless. Avery v. Moore, 133 Ill. 74; Godfrey v. Phillips, 209 Ill. 587; Schillinger Bros. Co. v. Smith, 225 Ill. 74; Mt. Olive & S. Coal Co. v. Rademacher, 190 Ill. 543; East St. Louis Connecting Ry. Co. v. O’Hara, 150 Ill. 586.

It is also assigned for error that the trial court made improper and prejudicial remarks on the trial and that, “Counsel were guilty of misconduct in remarks made to the jury which tended to prejudice the defendant.” It is an answer to both these assignments, that no objection was made to the remarks of the court and that the motion for a new trial which is in writing does not mention either as a reason for a new trial. If the reasons for a new trial are specified in writing, all grounds for new trial not set forth in such written motion are waived. Yarber v. Chicago & A. Ry. Co., 235 Ill. 589; Metropolitan West Side El. R. Co. v. White, 166 Ill. 375.

It is the peculiar province of the jury to judge of the weight of the evidence and the credibility of the witnesses. The evidence being in direct conflict and the trial court having approved of the verdict, this court cannot say that the verdict and judgment are against the manifest preponderance of the evidence. The judgment is therefore affirmed.

Affirmed.


text:
    Earnest Favro, Administrator, Appellant, v. Superior Coal Company, Appellee.
    1. Mines and minerals, § 141

      —when declaration not demurrable as stating too high a duty. In an action to recover damages for the death of a mule driver in defendant’s mine, a statement in the declaration that it was the duty of defendant to furnish proper and suitable means and appliances, held not to render the declaration subject to a general demurrer on the ground it states a higher duty than the law requires since the statement, in so far as it imposes too high a duty, may be regarded as surplusage, when from the facts stated the law will imply a legal duty.
    2. Workmen’s Compensation Act, § 5

      —sufficiency of declaration in suit hosed on Workmen’s Compensation Act. Where an employer within the meaning of the Workmen’s Compensation Act of 1911, J. & A. jflf 5449, et seq., has elected not to accept the provisions of the act in a suit against him to recover for the death of an employee, the declaration need not allege that the employee had or had not accepted the act, since under the act the rejection of it by the employer precluded the employer from right of election.
    3. Workmen’s Compensation Act, § 2*—when employee precluded from right of rejecting provisions of Compensation Act. Under the Workmen’s Compensation Act of 1911, J. & A. If If 5449, et seq., the employee has no right of election where the employer has elected not to accept the provisions of the act.
    Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed July 2,1914.
    James H. Murphy and D. G-. Williamson, for appellant.
    Edward C. Knotts, for appellee.

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

       See Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action on the case begun by the administrator of the estate of Olindo Barnardino, deceased, to recover damages from the Superior Coal Company for negligently causing the death of the intestate. The declaration contains one count. A demurrer was sustained to it, and judgment rendered against plaintiff in bar of the action. The plaintiff appeals.

The declaration avers that the defendant on May 25, 1912, and for one year next preceding in Macoupin county, controlled, operated and managed a certain coal mine and was engaged in mining and raising coal from said mine and employed divers employees in and about said work, and by means of the premises came ■ within the provisions of a statute of the State of Illinois, entitled “An Act to promote the General Welfare of the People of this State by Providing Compensation for Accidental Injuries or Death Suffered in the Course of Employment” (J. & A. j[j[ 5449 et seq.), and avers that on or before May 1, 1912, defendant filed with the State Bureau of Labor Statistics a notice in writing of said defendant’s election not to provide and pay compensation according to the provisions of said act, and was not, at the time of the injury and death of said Barnardino, bound to pay its employees the compensation provided by said act; avers that on the day aforesaid in a certain entry in said mine, etc., plaintiff’s intestate was then and there and for more than a month prior thereto had been employed by the defendant as a driver, and was on said day at work as such driver in said entry and in pursuance of his said employment engaged in driving a certain mule hauling two mine cars along said entry in a southerly direction at a certain described location, said mule being attached to the forward car by means of a tail chain having a hook at the end thereof fastening the same to said car; that it was the duty of defendant to furnish to intestate for use in his work as aforesaid proper and suitable means and appliances to perform his said work as a driver with reasonable safety; that the defendant negligently failed to perform its duty in that behalf, but on the contrary furnished a certain tail chain which was unsafe and defective in that it had a flat hook at the end to be attached to a car for hauling the same; that said hook was not sufficiently curved and was therefore likely in the course of intestate’s work to become unfastened from the car and cause said intestate to fall in front of the car and be injured or killed, all of which defendant knew or by the use of ordinary care would have known; that while the intestate was driving said mule hauling said two cars of coal, etc., said hook by reason of the defect aforesaid, became detached from said car causing the intestate, then and there riding on said car in the usual manner, to fall in front of said ear, by means whereof the car ran upon the intestate with great force and violence, whereby his skull was fractured and by reason whereof he shortly thereafter died; avers that said intestate left surviving his father, mother, brothers, and sisters, etc., as his only heirs, etc.

The demurrer is only a general one. One contention of defendant is that the declaration averring “that it then and there became and was the duty of the said defendant to furnish to the plaintiff’s intestate proper and suitable means and appliances” is an express allegation of a positive duty and makes the defendant an insurer. The declaration avers the facts on which a recovery is sought, and fully states the facts wherein it is averred the defendant was negligent and which it is averred were known or with reasonable care would have been known to defendant. The statement of the duty stronger than the law requires is surplusage, when the facts are stated from which the law will imply the legal duty of the employer. The statement that it was the duty of defendant to furnish proper and suitable means and appliances includes the statement that it was the duty of defendant to use reasonable care to furnish means and appliances which were reasonably safe when the facts are stated.

It is further contended that the declaration is fatally defective because it makes no averment concerning the acceptance or rejection by the appellant of the Employers’ Liability Act. Under the act the employer must first elect whether to pay the compensation fixed by the act or remain liable for damages under the law as it was prior to the taking effect of the act, deprived however of certain defenses. If the employer elects to pay compensation under the act then the employee is also bound by the act unless, within thirty days after the hiring or taking effect of the act, he shall file a notice of his rejection of the act. If the employer elects not to accept the provisions of the act then he is penalized hy being deprived of the defenses of assumed risk, negligence of a fellow-servant and want of ordinary care or contributory negligence of the employee. While if the employer elects to pay compensation according to the act then the employee may by filing a notice, elect not to accept compensation under the act and may retain his claim for damages under the law prior to the taking effect of the act, and in that event the employer may interpose the defenses of assumed risk, negligence of a fellow-servant or contributory negligence.

Where an employer refuses to accept the provisions of the Act of 1911, an employee has no option in the matter. It is only when the employer accepts its provisions that the employee may reject it and must give notice thereof. Employer and employee automatically accept the provisions of the act by not filing an election not to accept the act, and under the act the employee only has the right of election where the employer has elected to accept its provisions. It was unnecessary to aver that the employee either had or had not accepted it, since under the act the rejection of it by the employer precludes the employee from rejecting it. It was said in Dietz v. Big Muddy Coal & Iron Co., 263 Ill. 480, 5 N. C. C. A. 419, where the declaration contained an averment that the plaintiff had accepted the act: “We find no provision in the act which confers upon the employee the right to elect to be governed by the act in his relations to an employer who has rejected the act. * * * ' This averment, however, may be regarded as surplusage and of no legal consequence whatever.” We conclude, therefore, that the court erred in sustaining the general demurrer. The ease is reversed and remanded with instructions to overrule the demurrer.

Reversed and remoulded with directions.


text:
    The People of the State of Illinois, Defendant in Error, v. Adrian Young, Plaintiff in Error.
    1. Indictment and information, § 34

      —sufficiency of allegation as to time of offense. Where the information alleges the time of the offense under a videlicet, the allegation of the precise time is not necessary except that the allegation and proof must bring the offense within the statute of limitations.
    2. Criminal law, § 120*—when evidence of other offenses admissible. Evidence of the acts of the accused at other times thán the particular one for which he is on trial is competent for the purpose of showing intent.
    3. Master and servant, 1 873*—when instructions as to what constitutes violation of section 159 of Criminal Code erroneous. In the trial of an information charging defendant with a violation of section 159 of the Criminal Code, J. &. A. U 3779, prohibiting a person from seeking to prevent any other person from working or obtaining work, by threat, intimidation or unlawful interference, instructions informing the jury as to what constitutes intimidation and that intimidation might include following or spying after a person if done to prevent his working at a lawful business, held erroneous.
    4. Master and servant, § 873*—acts not constituting violation of section 159 of Criminal Code. Under section 159 of the Criminal Code, J. & A.. 1i 3779, union men or other employees have the right to seek, by peaceable persuasion, to induce others to leave or refrain from working for their employers, if the persuasion is not in the nature of intimidation or coercion.
    5. Instructions, § 129*—requisites when peremptory. A peremptory instruction should include every element requisite to the returning of a verdict as directed.
    Error to the County Court of Adams county; the Hon. Lyman McCarl, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.
    Opinion filed July 2, 1914.
    Walter H. Bennett, for plaintiff in error.
    Fred G. Wolfe and Rolland M. Wagner for defendant in error.

       Sce Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section Humber.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an information filed in March, 1913, in the County Court of Adams county, by the prosecuting attorney, against Adrain Young charging the defendant with a violation of section 159 of the Criminal Code (J. & A. ft 3779) which provides: “If any person shall by threat, intimidation or unlawful interference, seek to prevent any other person from working or from obtaining work at any lawful business, on any terms that he shall see fit such person so offending shall be fined not exceeding $200.”

The defendant entered a plea of not guilty and upon a trial before a jury was found guilty and sentenced to pay a fine of $50 from that judgment, the defendant prosecutes this writ of error.

The information, under a videlicet, charged the defendant with having committed the offense on March 18th. The People introduced evidence' tending to show the commission of the offense on the 18th, and of similar offenses on the 10th and 15th of the same month.

The plaintiff in error was a member of- a Carpenter and Joiner’s Union in Quincy that had been on a strike for about six months, and the prosecuting witness, Fred Westhaus, was an employee in one of the factories against which the Strike had been declared but who had continued at work after the strike had been declared by the union. The evidence further tended to show that on March 18th an officer approached Westhaus when he was on his way home from work and accused him of carrying concealed weapons; that while the officer was searching Westhaus, the plaintiff in error came up and told the officer that it was Westhaus’ mother who carried a gun. This apparently is about all that occurred at that time. The evidence by different witnesses tends to show that on the 10th and 15th, of the same month, the plaintiff in error with other men had followed Westhaus on his way home from work and called him vile names. The plaintiff in error denied either using any vulgar language or calling the prosecuting witness names, and says that he lived out in the direction that Westhaus did and that all he did on the 10th and 15th was to try and reason with Westhaus and persuade him to join the union.

It is insisted the court erred in admitting evidence concerning what occurred on other days than the 18th, the time alleged in the information. The time alleged is stated under a videlicet; the allegation of the precise time was not necessary, except that the allegation and the proof must bring the offense within the statute of limitations. We hold also that the evidence of the acts of the plaintiff in error at other times, than the particular one for which he was on trial, was competent for the purpose of showing intent. People v. Hagenow, 236 Ill. 528; People v. Moeller, 260 Ill. 375.

It is contended also that the court erred in giving three instructions for the People and modifying one requested by plaintiff in error. The third instruction given for the People is: “The Court instructs the jury that intimidation means to put a person in fear and may include following him, spying after him, stopping and threatening him or assuming a threatening attitude toward him and if done to prevent his working at a lawful business or on terms as he may see fit are unlawful arid each of said acts for said purpose is unlawful and in this if you believe from the evidence beyond a reasonable doubt that the defendant did commit any one or more of said acts for said purpose, then you should find the defendant guilty as charged in the information.”

The fourth is the same, in substance, with the exception that it is an abstract proposition. The fifth is: “The Court instructs the Jury that if the things done or words spoken are such that they will excite fear or reasonable apprehension of danger and so influence those for whom designed as to prevent them from freely doing what they desire and the law permits, such acts and words are unlawful, and in this case if you believe the conduct of the defendant was such as to excite fear or reasonable apprehension of danger on the part of Fred Westhaus and designed to influence bim to prevent bim from doing what he desired and the law permits in working, then the defendant is guilty as charged in the information and you should find him guilty by your verdict.”

The second instruction requested by the plaintiff in error is: “The Court further instructs the Jury that a strike is not unlawful; that members of labor unions may singly or in a body quit the service of their employer, and for the purpose of strengthening their association, may persuade and induce others in the same occupation to join their union.” This the court modified adding the following words: “But in doing so no strilcer would be warranted in following a Nonunion man against Ms will, spying after Mm, stopping or threatening him, or using any words or language that would in any way intimidate Mm.”

Counsel for defendant in error rely upon the cases of Franklin Union No. 4 v. People, 220 Ill. 355, and Doremus v. Hennessy, 176 Ill. 608, as authority for the giving of the third and fourth instructions and the modifications of the plaintiff in error’s instruction. The People’s instructions inform the jury that “intimidation means to put a person in fear, and may include following him, spying after him, stopping and threatening bim. or assuming a threatening attitude toward him and if done to prevent his working at a lawful business or on terms as he may see fit are unlawful and each of said acts is unlawful,” and if the jury believe from the evidence that the plaintiff in error “did commit any one or more of said acts for said purpose,” then the jury should find him guilty. The different acts are disjunctively connected together by the word “or,” it tells the jury that if the plaintiff in error followed the prosecuting witness, or spied after him, to prevent his working at a lawful business the plaintiff in error should be found guilty. The statute only makes intimidation or unlawful interference that seeks to prevent another person from working an offense. In the FramMin Union case, supra, which was an attachment for contempt for violating an injunction, it was said: “To follow him, to spy after him, to stop him and threaten him, to put him in fear, to intimidate him or to coerce him are alike unlawful.” As we understand, the principal there announced is, that to follow and spy after for the purpose of intimidation or coercion are unlawful. To follow and spy after are not of themselves criminal and only become such when done for the purpose of intimidation. Union men or any other employees have the right to seek by peaceable persuasion to induce others to leave or refrain from working for their employers, if the persuasion is not in the nature of intimidation or coercion and will not thereby render themselves liable to criminal prosecution. Kemp v. Division No. 241, 255 Ill. 213; Beaton v. Tarrant, 102 Ill. App. 124; 18 Am. & Eng. Encyc. of Law, 87; Iron Moulders’ Union No. 125 v. Allis-Chalmers Co., 91 C. C. A. 631,166 Fed. 45; Kargos Furniture Co. v. Amalgamated Woodworkers Local Local Union No. 131, 165 Ind. 421; American Steel & Wire Co. v.Wire Drawers’ & D. M. Union, 90 Fed. 608; Cumberland Glass Mfg. Co. v. Glass Bottle Blowers’ Ass’n, 59 N. J. Eq. 49; Reynolds v. Everett, 144 N. Y. 189. The words to intimidate or to coerce have a well-understood meaning, and the court in undertaking to tell the jury what was “intimidation” was usurping the province of the jury, and in informing the jury that intimidation might include following or spying after a person, if done to prevent his working at a lawful business, was .erroneous since that interpretation deprives a citizen of the right to argue with and persuade his fellow-employees to quit work although the persuasion might, under the circumstances surrounding it, be peaceable and without a particle of intimidation or coercion in the judgment of an ordinarily reasonable person. Argument and persuasion do not of themselves constitute a criminal offense unless they are designed to intimidate or coerce.

What has been said in reference to the third and fourth instructions given on the part of the People is applicable to the modification of plaintiff in error’s second instruction.

The fifth instruction directs a verdict of guilty, if the jury believe the conduct of the plaintiff in error was such as to excite fear or reasonable apprehension of danger on the part of the prosecuting witness and designed to influence him from freely doing what he desired. The jury under this instruction were directed to find the defendant guilty, if they believed from a bare preponderance of the evidence that he was guilty of .the offense charged, although they might have had a reasonable doubt of his guilt. A peremptory instruction should include every element requisite to the returning of a verdict as directed. The giving of this instruction was reversible error.

For the reasons indicáted the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Frank Thoele, Plaintiff in Error, v. Illinois Traction Company, Defendant in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1506

      —when sustaining objection to question ashed of witness on redirect examination harmless. In a personal injury case sustaining an objection to a question asked of plaintiff on redirect examination as to whether he noticed the object which struck him, held not error where the form of the question was changed and the witness fully answered what he saw.
    Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed July 2, 1914.
    Statement of the Case.
    Action by Frank Thoele against Illinois Traction Company to recover for personal injuries. The jury returned a verdict for the defendant on which judgment was entered. To reverse the judgment, plaintiff prosecutes a writ of error.
    The case was previously before the Appellate Court in 171 Ill. App. 198, in which the court reversed and remanded the case for the reason there was sufficient evidence to require the issues to be submitted to the jury.
    John A. Fulwiler, Jacob P. Lindley and DeMange, Gillespie & DeMange, for plaintiff in error.
    Livingston & Bach, for defendant in error; Sigmund Livingston, of counsel.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

2. Appeal and ebbob, § 1625*—when error in rejection of evidence cured. In a personal injury case, where the court permitted the defendant to ask the court reporter if a certain witness testified on a certain subject at a former trial and refused to permit plaintiff to show by the reporter that the witness was not asked any question on the subject, held that any error in the rulings of the court was cured, where it appeared the court afterwards changed its ruling and plaintiff was allowed to read to the jury the entire testimony of the witness at the first trial.

3. Appeal and ebbob, § 1241*—when adversary’s instructions cannot he complained of. The appellant cannot complain of the giving of his adversary’s instruction on a legal question involved in his own instruction, where it is not contended that it did not state the law correctly.

4. Master and servant, § 792*—when instruction on theory, of accident proper. In an action by a servant against his employer for personal injuries, the giving of an instruction which informed the jury that if the injury was the result of an accident the jury should find the defendant not guilty, held to state a correct proposition of law and that there was no error in giving it.


text:
    Lincoln F. Mostoller, Appellant, v. Jennie Gove, Appellee.
    1. Executors and administrators, § 21

      —power of administrator with will annexed. An administrator with the will annexed has no power to sell real estate by virtue of the will.
    2. Courts, § 94*—jurisdiction of County Court. The County Court has no general chancery jurisdiction, and is without jurisdiction -where trusts or investments of the estate are involved.
    3. Courts, § 94*—jurisdiction of County Court to execute a trust. Since the County Court has no jurisdiction in the management or execution of a trust, it is without jurisdiction to entertain a petition by an administrator with the will annexed to have a certain fund derived from a sale of the real estate invested and the income paid to the widow in lieu of a life annuity provided by the will and an antenuptial contract.
    4. Appeal and ebbob, § 26*—jurisdiction of Circuit Court on appeal from County Court. The Circuit Court on an appeal from the County Court has no greater or other authority or jurisdiction than was vested in the County Court.

      Appeal from the Circuit Court of Tazewell county; the Hon. Theodore Ñ. Green, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed July 2, 1914.
    Statement by the Court. Lincoln F. Mostoller, administrator with the will annexed of Harvey W. Grove, deceased, filed a petition in the County Court of Tazewell county alleging that on October 29, 1898, Harvey W. Grove, entered into an antenuptial contract with Jennie Cress, in contemplation of a marriage between them, which provided that should the marriage take place Jennie Cress should received annually, so long as she' lived the widow of Grove, the sum of $500, to be paid by the executors or administrators of Glove, which provision is in lieu of dower, widow’s award and every claim except homestead in the estate of Grove; that Grove was to provide Jennie Cress with a homestead costing $2,500, or more, and if she should survive Glove she is to have the use of it during her life, she taking care of it and paying all taxes; that Glove and Jennie Cress were thereafter married and Glove died testate January 13, 1905; that his will was admitted to probate ; that it directs the payment of his debts, recites the antenuptial contract and marriage and directs its provisions to be carried out by semiannual payments as specified in the contract, and gives to the widow the use of a horse, furniture, etc., so long as she remains his widow, in addition to the provisions of the contract ; that it directs that $1000 be invested at interest, the proceeds to be used towards paying a pastor’s salary, and that $50 be invested, the proceeds of which annually are to be used in caring for a cemetery lot, and “if the proceeds of my estate each year amount to more than enough to pay the above claims” the balance be turned over to his heirs. The will appointed Jennie Glove and another party executors.
    The executors resigned and the petitioner was appointed administrator. The petition recites that the administrator is desirous of closing up the estate and of paying Jennie Gove a gross sum in lieu of her $500 annuity, and that petitioner had endeavored to come to an agreement with her for the payment of a gross sum or the purchase of an annuity but had been unable to make any agreement with her.
    Jennie Gove answered the petition admitting the antenuptial contract, the making of the will and the death of Gove, and denies that she can be compelled to receive a gross sum in lieu of .the provisions of the contract, and insists that the contract and will make her annuity under the contract a lien on the estate, and that under the will only the residue of the income annually remaining after the payment of her annuity is to be divided. The answer states that Lulu G. Mostoller, the wife of the petitioner, is the only heir of the estate, and the only right she has in the estate until the death of defendant is the right to the residue of the income after the annual payments have been made in accordance with the antenuptial contract and said will, and insists that the County Court has no jurisdiction in the matter in controversy.
    The County Court made an order that $15,000 of said estate be set aside to purchase first mortgage bonds to be approved by the court, from the income of which the administrator pay the annuity to Jennie Gove, and the balance of the income therefrom annually to Lulu G. Mostoller during the lifetime and widowhood of Jennie Gove, and at her death or marriage that he pay the principal to Lulu G. Mostoller. Jennie Gove appealed from the order of the County Court to the Circuit Court, where on a hearing the petition was dismissed. The administrator has appealed to this court.
    Welty, Sterling & Whitmore and W. E. Curran, for appellant.
    Jesse Black, Jr., for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The evidence shows that the estate consists of the homestead, worth about $4,000 which the appellee is in possession of and entitled to as long as she remains the widow of the testator, together with farm lands in Kossuth county, Iowa, of the value of $16,000, farm land in Livingston county, Missouri, of the value of $8,000 and about $2,000 of personal estate which is loaned out by the administrator.

The will gives the executors power to sell and convey real estate necessary to carry out the provisions of the will. An administrator with the will annexed has no power to sell real estate by virtue of the will. Frackelton v. Masters, 249 Ill. 33. By the will of the deceased and the antenuptial contract, a trust is created to last during the life or widowhood of Jennie Gove. Harris v. Ferguy, 207 Ill. 534; Ingraham v. Ingraham, 169 Ill. 470.

The County Court under the Constitution and the statute has jurisdiction in all matters of probate and settlements of estates. While it exercises equitable as well as legal powers in the settlement of estates of deceased persons, yet it exercises only such equitable jurisdiction under equitable rules and principles as is necessary for the allowance of claims of an equitable nature. The County Court has not general chancery jurisdiction and is without jurisdiction where trusts or reinvestments of the estate are involved. It was said in Re Estate of Mortenson, 248 Ill. 520: “The settlement of an estate, in legal significance and common understanding, is the process by which letters testamentary or of administration are granted, assets collected, claims allowed, debts paid, real estate sold if necessary for the payment of debts, and the property distributed to those who are entitled to it by the laws of descent or by the will. Such settlement has no relation to the management or execution of trusts, which are either entirely independent of the administration of the estate by the executor or administrator to‘the same extent that a devise of real estate is independent of such administration, or, if the trust is in the residue of property committed to the executor, can only become operative after the settlement of the estate is completed and the trustee receives the property from the executor. * * * The supervision and control of trusts, based on the fact that they are created by will, are not embraced within the words ‘probate matters.’ ”

The prayer of the petition if granted in effect would be a direction to the administrator as a trustee, authorizing a sale of real estate and the investment and reinvestment of the funds in the management of a trust estate under the direction of the County Court. In such matters County Courts have no authority or jurisdiction. In re Estate of Mortenson, supra; Frackelton v. Masters, supra.

The Circuit Court on an appeal from the County Court has no greater or other authority or jurisdiction than was vested in the County Court. Miller v. Miller, 82 Ill. 463. The County Court, by making the order it made, was undertaking to make a new contract and will for the testator. It did not have any authority or jurisdiction to make the order prayed for, and the Circuit Court did not err in dismissing the petition. The order of the Circuit Court is affirmed.

Affirmed.


text:
    J. L. Stoutenborough and Robert Miller, Appellees, v. Edna Mae Miller, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 367

      —when opinions as to mental capacity incompetent. On the hearing of a petition to have a conservator appointed for defendant on the ground she was feeble-minded and incapable of caring for her property, permitting the petitioners to ask their witnesses after they had testified as to defendant’s mental capacity whether they thought she would know and understand the nature of the mortgage for three thousand dollars executed by her upon her land “and other like questions, and permitting them to ask the same questions of defendant’s witnesses on cross-examination, held improper for the reason the witnesses were not experts, and that though they were competent to give an opinion concerning defendant’s mental condition, from what they had seen and observed, they knew nothing about the mortgage except what they had been told, and were no better qualified to give expert opinion with reference to her capacity to understand the mortgage than the jury.

      Appeal from the Circuit Court of De Witt county; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the • October term, 1913.
    Reversed and remanded.
    Opinion filed July 2, 1914.
    Statement of the Case.
    Proceeding begun in the County Court by J. L. Stoutenborough and Robert Miller to have a conservator appointed for Edna Mae Miller on the ground she was feeble-minded and incapable of caring, for her property. A trial by jury resulted in a verdict finding defendant feeble-minded. Upon an appeal to the Circuit Court a similar verdict was returned and a judgment was entered that a conservator should be appointed. To reverse the judgment, defendant appeals.
    Herrick & Herrick, for appellant.
    Ingham & Ingham, for appellees.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

2. Evidence, § 365*—applicability of rule as to opinion evidence on cross-examination. The rule concerning the right of lay witnesses to give their opinion is the same whether the questions are asked on direct or cross-examination.

3. Insane persons, § 5*—admissibility of evidence. In a proceeding for the appointment of a conservator, where the issue was whether the defendant was feeble-minded, a note given to defendant by her brother shortly before the trial held admissible.

4. Instructions, § 81*—when objectionable as argumentative. On the hearing of a petition for the appointment of a conservator, seven instructions given at the request of the petitioners held improper as being argumentative in their nature in that they directed the attention of the jury to a note and mortgage given by defendant and told the jury that they should consider them with all the other evidence.

5. Instructions, § 81*—when objectionable as argumentative. In a proceeding for the appointment of a conservator, an instruction telling the jury that the proceeding was for the purpose of protecting the estate of defendant, held objectionable as argumentative.


text:
    Ed. Walther, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Master and servant, § 694

      —when evidence sustains recovery for injury resulting from negligent order of foreman. In an action against a railroad company to recover for personal injuries received by plaintiff in defendant’s yards, alleged to have been caused by the negligent order of a foreman in signaling the engineer on a derrick car to “come ahead” while plaintiff was preparing the coupling between the derrick and another car in obedience to said foreman’s orders, held that a verdict for plaintiff was sustained by the evidence.

      2. Witnesses, § 337

      —when prior inconsistent statements may be explained on re-examination. In an action for personal injuries alleged to have resulted from the negligent order of defendant’s foreman, where the foreman as a witness testified he gave the order, and for the purpose of impeaching his testimony the defendant showed he made a statement in writing that he did not give the order, held it was not error to allow, the witness on redirect examination to be asked to explain the statement and whether it was true.
    3. Witnesses, § 338*—right to examine concerning impeaching evidence. A party whose witness is impeached by contradictory statements is entitled to show the circumstances under which the statements were made, and the party who impeached the witness by showing such contradictory statements is not entitled to further examine on the question.

      4. Witnesses, § 213*—when questions ashed on cross-examination may be excluded. Refusal to permit witnesses to be asked on cross-examination concerning their testimony on a former trial for the purpose of impeachment, held not error where the questions were either repetitions of questions already answered or were not contradictory of their testimony on the present trial.
    6. Master and servant, § 833*—when refusal to permit questions to be ashed as to speed of car harmless. In an action against a railroad company to recover for personal injuries received by plaintiff while engaged in coupling a derrick .car to another car, refusal to permit plaintiff to be asked how fast the derrick could be started and moved, held not reversible error where both sides agreed that the car could not be run over one or two miles an hour.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed July 2, 1914.
    Bracken & Young and W. B. Leach for appellant; Silas H. Strawn, of counsel.
    DeMange, Gillespie & DeMange and Jesse E. Hoppman, for appellee.

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Plaintiff recovered a verdict and judgment against the defendant for three thousand dollars as damages for personal injuries, froin which the defendant prosecutes this appeal. There were two previous trials of this case before a jury. At the first trial the jury disagreed, at the second a verdict was returned against the defendant for two thousand five hundred dollars, on which judgment was rendered. That judgment was reversed by this court for errors of law. Walther v. Chicago & A. R. Co., 176 Ill. App. 399.

The last trial was had on the two counts of the original declaration on which the second trial was had and an additional count. The counts of the declaration on the former trial allege, in substance, that plaintiff was in the employ of defendant as a laborer and a member of the “clean-up” gang in defendant’s Bloomington yards; that the men were operating a derrick, which was being used to transfer coal from coal cars to locomotive tenders; that while engaged in that work the derrick remained stationary; that it was equipped with motive power so as to be moved along the track by its own power, and was so used as a switch engine; that the derrick and engineer in charge of it were under the direction of the foreman of the gang; that plaintiff’s work was to wave signals to the engineer when to move the derrick boom; that plaintiff was directed by the foreman to prepare the coupling on the derrick for the purpose of using said derrick as a switch engine to move the car on which the gang was working; that in obedience to said order he stepped in front of the derrick, and while in the act of preparing the coupling and in the exercise of ordinary care, without warning to him the foreman negligently signaled the engineer to come ahead, which signal the engineer promptly obeyed and started the derrick, and plaintiff’s foot was caught and crushed. One of these counts alleges that the foreman was not a fellow-servant with plaintiff; the other that plaintiff had no experience as a switchman working with moving engines or cars, and did not know of the danger attendant upon using said derrick as a switch engine. The additional count pleads with greater detail the facts pleaded in the original counts, and avers that plaintiff did not know and by the exercise of reasonable care, etc., would not have known that said derrick would then and there move while he, the plaintiff, was then and there preparing the said coupling as aforesaid, and that the said foreman knew or by reasonable care should have known that an order directing the said engineer to move said derrick in a southerly direction, while the plaintiff was preparing said coupling, was reasonably liable to directly result in the moving of said derrick towards the plaintiff and in an injury to him.

The evidence shows that plaintiff at the time of the injury was about twenty-six years of age and had been working for several years as a member of a clean-up gang in the Bloomington yards of defendant and that the duties of the clean-up gang were to clean up junk, load and unload material in the shops and coal in the yards under the direction of the foreman. The derrick is a low flat car about nine feet wide and eleven feet long on which were a boiler, engine, windlass, boom and other attachments which make up a derrick. This derrick car can move with its own power very slowly, not to exceed one to two miles an hour, and it was used at times to move cars. The distance from the top of the rail to the under side of the platform of the derrick car is twenty-two inches and to the top of the platform thirty-four inches. The distance from the center of the front wheels to the front of the platform is eighteen inches, so that the front of the wheels is but little back of the front edge of the platform. Plaintiff had frequently worked with the derrick by which he was injured and had acted as foreman in the absence of John Askew, the regular foreman.

On the day of the injury, because of some trouble at the coal chutes, the gang of which plaintiff was a member were loading locomotive tenders with coal from coal cars with the derrick. The plaintiff had been sent away from the derrick on some errand, and while he was absent a switch engine had bumped into some cars and the derrick, pushing them so as to block another track and it had become necessary to push certain loaded cars further along the track to clear the blockade. The foreman directed the derrick car to be used for that purpose. The plaintiff returned from his errand about that time and the foreman ordered him to get the coupling on the derrick ready to push with the derrick car a coal car which stood a few feet souths The coupling is a flat piece of iron about four feet long, three inches wide and an inch thick, one end of which is fastened to the drawbar, and the other end, when not in use, is swung around and hooked up to the derrick platform. The track where the derrick stood was ballasted with cinders practically level with the top of the rails, both between the rails and outside of them. The plaintiff, on the order of the foreman to get the coupling ready, stepped between the cars, and the derrick car moved towards the coal car catching plaintiff’s foot between a wheel and the rail and ran over it so that he lost his foot and leg. The foreman ordered the engineer on the derrick car to come ahead. The evidence tends to show that the foreman had never before given the order to move the derrick before the men arranging the coupling had got it ready and retired to a safe place, and that the signal or direction to the engineer to move the car had always been given by the man working at the coupling. The plaintiff testified that he did not know of and had not heard or seen any order or signal to the engineer to move the derrick, when he undertook to comply with the order of the foreman.

The principal contention of the defendant is that the orders were given to the plaintiff and the engineer at the same time, and that plaintiff heard the order to the engineer to come ahead, and that the plaintiff was not in the exercise of ordinary care in stepping between the cars when the engineer had been directed to move the derrick. If the plaintiff did not know of an order or signal to the engineer to start the derrick forward, the plaintiff was very liable to be injured because the ballast and the top of the rail were on a level and the distance back from the front of the car where the space between the wheel and the rail would catch a man’s foot, if any part of it should be on the rail or just inside the rail, was but a very few inches. The question of negligence on the part of the defendant and the exercise of ordinary care by the plaintiff were questions of fact concerning which, when all the evidence bearing on the questions is considered, this court would not be justified in interfering with the verdict of the jury. We cannot say the verdict is not sustained by the preponderance of the evidence.

The only other contentions of defendant are that the court erred in the admission and rejection of evidence. The witness Askew, who was defendant’s foreman at the time of the injury to appellee, but who was not in the employ of appellant at the time of the trial, made a statement in writing to appellant that he had not given any order to move the derrick at the time of the accident. As a witness for the plaintiff he testified that he did direct the moving of the derrick car. On re-examination by the plaintiff he was asked to explain the statement and whether it was true or not. An objection was overruled and the witness replied he was then working for the Company and didn’t care to take any blame on himself. A party whose witness is impeached by contradictory statements is entitled to the circumstances under which the contradictory statement was made, but the party who had impeached the witness by showing contradictory statements was not entitled to further examine on the question. Atchison, T. & S. F. R. Co. v. Feehan, 149 Ill. 202; 1 Gfreenleaf on Evidence, sec. 462.

Objections were sustained to other questions put to Askew and plaintiff on cross-examination concerning their testimony given on a former trial for the purpose of impeachment. The questions were either repetitions of questions already answered or were not contradictory of their evidence on thisN trial. The trial court appears to have been liberal in permitting the repetition of questions already answered either in the same or in different forms.

It is also insisted that the court erred in sustaining objections to questions put to plaintiff as to how fast the derrick could be started, and moved. Both sides agree that the car could not be run over one or two miles an hour, or faster than a man would walk. While it would not have been error to have overruled the objections it was not reversible error to sustain them. We find no merit in any of the contentions of defendant or reversible error in the case and the judgment is affirmed.

Affirmed.


text:
    Oscar Mandel and Albert Schwarzman, Defendants in Error, v. Bloomington and Normal aRilway and Light Company, Plaintiff in Error.
    (Not to be reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed July 2, 1914.
    Statement of the Case.
    Action by Oscar Mandel and Albert Schwarzman against Bloomington and Normal Railway and Light Company to recover damages for injury to a team of mules, wagon and harness by being struck by a street car of the defendant at a street intersection. A trial resulted in a verdict for three hundred and fifty dollars against the defendant, on which judgment was rendered. To reverse the judgment, defendant prosecutes a writ of error.
    Abstract of the Decision.
    1. Street railroads, § 131

      —when recovery of damages resulting from collision at street intersection sustained hy the evidence. In an action to recover damages for the loss of a team of mules by being struck by a street car at a street intersection, a verdict for plaintiff on conflicting evidence as to the speed the team was being driven and the rate at which the car was running, held sustained by the evidence.
    2. Instructions, § 17*—when instruction erroneous as tending to encourage a disagreement of the jury. Requested instructions containing a statement that: “No juror should consent to a verdict which does not meet with the approval of his own judgment and conscience after due deliberation with his fellow jurors after fairly considering all the evidence admitted by the court and the law as given in the instructions,” held properly refused as tending to encourage and invite a disagreement.
    3. Evidence, § 430*—when witness not disqualified to give testimony on value. A witness called to testify as to the value of mules, held not disqualified by his testimony that he was not an expert on mules, but knew the value of them.
    4. Street railroads, § 149*—when requested instruction properly refused. In an action to recover for the loss of a team of mules by being struck by one of defendant’s street cars at a street intersection, a requested instruction which told the jury that it was not material whether a gong was sounded if they believed the driver of the team saw or could have seen, heard or could have heard the car by the use of reasonable care on his part, held prop-, erly refused for the reason the law does not excuse the failure to sound the gong on the possibility of the traveler seeing or hearing a car in the exercise of due care but only, if in the exercise of ordinary care, he would' or must have seen it.

      Livingston & Bach, for plaintiff in error; Sigmund Livingston, of counsel.
    Light & Light, for defendants in error.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

5. Appeal and ebbob, § 1538*—when giving of incomplete instruction not reversible error. The giving of an instruction which stated: “The jury are the judges of the questions of fact in the case, and the court does not by any instruction given to the jury in this case intend to instruct the jury how they should find any question of fact in this case,” held not reversible error for the reason it did not state “from the evidence in the case under the instructions of the court,” where the jury were fully instructed and the error could not have misled the jury.