author: Me. Presiding Justice Boggs

text:
    Otto Klusemeier, Appellee, v. East St. Louis Bridge Company, Appellant.
    (Not to foe reported in full.)
    Appeal from the City Court of East St. Louis; the" Hon. W. M. Vandeventek, Judge, presiding/
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by Otto Klusemeier,; plaintiff, against East St. Louis Bridge Company, defendant, to recover damages for personal injuries sustained by plaintiff while in defendant’s employ. Prom a judgment for plaintiff for $1,000, defendant appeals.
    P. K. Johnson and W. C. Connett, for appellant.
    Minock & Zulley, 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.

   Me. Presiding Justice Boggs

delivered the opinion of the court.

Abstract of the Decision.

T. Trial, § 187 —what is effect of motion for direction of verdict. A motion for direction of a verdict for defendant at the close of a plaintiff’s case raises the question as to whether there is any evidence in the record fairly tending to prove the case made by the declaration.

2. Trial, § 195*—when proper to refuse to direct verdict. Where there is evidence tending to prove plaintiff’s case, it is proper to refuse to direct a verdict at the close of plaintiff’s evidence.

3. Trial, § 179*—what is nature of motion to direct verdict for defendant. A motion made at the close of all the evidence to direct a verdict for defendant amounts to a demurrer to the evidence.

4. Appeal and error, § 438*—what is necessary to preserve question of variance. ' In order to avail of a material variance between allegations and proof, the testimony must be specifically objected to at the time it is offered, and the variance pointed out.

5. Appeal and error, § i88*-^what must be shown by record in order for question of variance to be available. A party, in order to avail himself of a variance between the proof and the declaration in a court of review, must show from the record that the alleged variance was specifically called to the attention of the trial court, so that thereby the opposite party can have an opportunity to amend his pleading.

6. Evidence, § 160*—inadmissibility of as to offer of compromise. Negotiations or an offer of compromise are inadmissible in evidence.

7. Workmen’s Compensation Act, § 2*—when not error to permit proof of substance of notice of rejection of. In an action by a servant against his master for personal injuries, it is not error to permit plaintiff to prove the substance of the notice posted by defendant at its working place, to the effect that it had elected not to be governed by the Workmen’s Compensation Act, where a certified copy of the notice filed by the employer with the Industrial Board of election not to pay compensation under the act has been given in evidence.

8. Workmen’s Compensation Act, § 2*—when .election of employer not to be bound by is shown. The election of an employer not to be governed by the provisions of the Workmen’s Compensation Act is shown by a certified copy of the notice of the employer not to be governed by the act filed with the Industrial Board and the testimony of plaintiff as to the substance of the notice posted by the employer at the working place, after refusal of the employer to produce the original.

9. Workmen’s Compensation Act, § 2 —when defendant may not complain of introduction of parol evidence as to contents of notice. The defendant, in an action by an employee for personal injuries, cannot complain of the ruling of the trial court in permitting the introduction of parol evidence as to the contents of a notice by an employer posted at its working place of its election not to be governed by the provisions of the Workmen’s Compensation Act, where it fails, after due notice before trial, to produce the original notice.

10. Damages, § 200*—when instruction on in action for personal injuries is not erroneous. In an action for damages for personal injuries, an instruction that in case the jury found the issues for plaintiff then, in assessing the damages, they might take into consideration the nature and extent of the injury, together with the probable duration thereof, if any, shown by the evidence, the plaintiff’s pain and suffering, if any, shown by the evidence, his loss of time and earnings during his sickness and disability to work, if shown by the evidence, is proper and is not- erroneous on the ground that it does not require the jury to find the issues from a preponderance of the evidence.

11. Workmen’s Compensation Act, § 12*—when instruction on contributory negligence is properly refused. In an action by an employee against his employer, who has elected not to pay compensation under the Workmen’s Compensation Act, for damages for personal injuries, an instruction on contributory negligence requested by defendant is properly refused, since by the election the employer was deprived of the defenses of contributory negligence, fellow-servant and assumed risk.

12. Instructions, § 151*—when properly refused. It is proper to refuse requested instructions covered by the main charge.

13. Instructions, § 18*—when properly refused. It is not error to refuse an involved and misleading instruction.

14. Damages, § 133*—when verdict not excessive. A verdict for $1,000 for personal injuries, held not excessive where it appeared that the injury sustained was a serious one; that plaintiff was incapacitated two or three months; that two of his toes were injured and were still stiff; that he had to wear a shoe two sizes too large; that he had to wear braces to protect his foot, and there was evidence tending to show that the injury was a permanent one.


source: Caselaw Access Project

author: Mr. Presiding Justice Boggs

license: Public Domain

text:
    Kinloch long Distance Telephone Company of Missouri, Appellee, v. Alton Gas & Electric Company et al., Appellants.
    1. Tbial, § 192

      —when error to refuse to direct verdict for defendant. Where there is no evidence which, taken with all the inferences reasonably to be drawn therefrom, fairly tends to prove a defendant guilty of the negligence charged, it is error to refuse to direct a verdict of not guilty.
    2. Appeal and erbor, § 1793*-—when judgment reversed as to dll defendants. In a negligence action, if the judgment is reversed as to one defendant it must be reversed as to all, since the verdict and judgment are a unit.
    3. Trial, § 195*—when not error to refuse peremptory instruction to find issues for defendant. Where there is evidence fairly tending to prove the cause of action charged, it is not error to refuse a peremptory instruction to find the issues for defendant.
    4. Negligence, § 223*—when instruction on proximate cause should he amplified. In an action for personal injuries, an instruction “that by the term ‘proximate cause’ is meant the real actual cause,’’ while technically correct, is not calculated to enlighten the jury in reference to the meaning to be given by them to the term " “proximate cause,” and should be amplified in regard thereto.
    5. Instructions, § 151*—when properly refused. It is not error 0 to refuse an instruction covered in the main charge.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    . Williamson, Burroughs & Ryder, for appellants.
    Burton & Burton, for appellee.

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

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

An action in case brought in the Circuit Court of Madison county- by appellee, Kinloch Long Distance Telephone Company, against the Alton Gas & Electric Company, Alton, Granite & St. Louis Traction Company and East St. Louis & Suburban Bailway Company, appellants, resulted in a verdict and judgment in favor of appellee for $655. To reverse said judgment appellants prosecute this appeal. For convenience we shall hereafter refer to appellants as the Electric Company, the Traction Company and the Bailway Company, respectively.

The declaration consists .of two counts, in each of which it is alleged that appellee, on July 20,1914, was using and operating certain poles, wires and appurtenances ,on College avenue, in the City of Alton, and that one Baker was in the employ of appellee as lineman; that appellee and Baker were operating under the Workmen’s Compensation Act; that Baker climbed a pole, belonging to appellee, on said College avenue, and while so doing, and while in the exercise of due care for his own safety, came in contact with a primary and secondary wire, alleged to be in the use and control of appellants, and charged with electricity, his hand touching the primary wire and his hip the secondary wire; that said wires were uninsulated at the respective points of contact and that such defeetiye condition was known or should have been known to appellants; that by reason of said improper and defective insulation an electric current passed through the body of Baker, greatly injuring him, burning his index finger, and throwing him to the ground. Said declaration further avers that by reason thereof appellee became liable for and paid out under the Compensation Act to the said Baker the sum of $455 compensation and $200 for hospital and medical services.

Said declaration further alleges that the injuries to Baker were not the proximate result of negligence on the part of appellee or its employees, but were caused by the negligence of appellants; that they and each of them had, prior to the time of the injury, elected to be bound by the provisions of the Workmen’s Compensation Act, and that appellants are liable to appellee for the money so expended, with interest, etc.

The second count is, in substance, the same as the first except that it charges the wires to have been the property of the Electric Company, and that they were fastened to a pole of the Traction and Railway Companies east of the pole on which Baker was when hurt, and to the pole of the Electric Company west of the pole on which he was hurt; that such wires were so placed that they were loose and close against the Kin-loch pole, and that the pole of the Traction Company and the Railway Company was leaning about 2 feet at the top towards the street, causing one of said wires to be near and rub against the Kinloch pole upon which Baker was working.

The pleas consisted of the general issue by each of appellants, separately pleaded, and, in addition thereto, the Traction Company and the Railway Company filed separate pleas denying that the poles, wires, electric current, etc., mentioned in the declaration were their property.

Appellee’s declaration is based upon the provisions of section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. [[ 5475(29)] which, in effect, provides that where an employer is required to pay out money for an injury to an employee, such injury not resulting from the négligence of the employer or his servants, and happening under such circumstances as to create a legal liability in some third party, that the employer would be subrogated to his employee’s right of action against such party for the purpose of recovering such money as the employer is required to pay out on account of such injury.

The Kinloch Company operated a telephone system with a 30-foot pole line extending east and west along the south side of College avenue. On the sanie side of College avenue were electric light wires, which had been erected before said telephone line. The poles of appellee Telephone Company were placed in such a manner as to “split the lead,” that is, there were electric light wires on each side of the Kinloch poles. The light wires were on poles, some 5 feet shorter than those of appellee 'company.

The record discloses that Baker went up a pole of the Telephone Company, located some 40 to 60 feet east of Clawson avenue, by means of iron steps projecting from each side thereof. On either side of this pole, which was about 8 inches in diameter, were primary -wires carrying a voltage of 2,200, and below them were secondary wires carrying a voltage of 110. These wires were not supported on cross arms on the Kin-loch pole, but were supported on cross arms at poles east and west of the Kinloch pole. The evidence further shows that- one, and perhaps both, of the poles on either side of the Kinloch pole were leaning, and that one of the primary wires on the south side of the Kinloch pole was on one of the steps on said telephone pole and the insulation was worn away from the same; also the insulation was off of the secondary wire just below said primary wire.

When Baker went up the pole his right hand came in contact with either the primary wire or the step on which it rested, and the lower portion of his body against the secondary wire, thereby causing him to receive an electric shock. The lineman on the pole west of Baker lifted the primary wire, releasing Baker, and he fell to the ground. Baker was disabled for a considerable length of time and appellee being under the Compensation Act paid him $455 compensation with $200 for hospital and medical services.

At the close of appellee’s evidence, and again at the close of all the evidence, separate motions and instructions were offered by appellants requesting the court to instruct the jury to find appellants severally not guilty, all of which motions and instructions were denied, and the ruling of the court thereon is assigned as error.

There is no evidence in the record which taken with all of the inferences- reasonably to be drawn therefrom proves or fairly tends to prove appellant, East St. Loiiis & Suburban Railway Company, guilty 'of th.e negligence charged in appellee’s declaration. A separate plea was filed by said Railway Company, denying the ownership, possession or control of the electric wires, poles and current mentioned in the declaration, thereby directly raising that issue.

The court therefore erred in refusing to direct a verdict of not guilty as to appellant, East St. Louis & Suburban Railway Company. As the verdict and judgment is a unit, if it is reversed as to one defendant it must be reversed as to all. Jansen v. Varnum, 89 Ill. 101; Seymour v. O. S. Richardson Fueling Co., 205 Ill. 77; Patterson v. Standley, 91 Ill. App. 672; Cummings v. Smith, 114 Ill. App. 35.

This rule obtains with reference to verdicts and judgments in tort actions as well as upon contracts. The judgment is a unit as to all of the defendants against whom it is rendered and cannot be reversed as to one or more of them and affirmed as to one. Claflin v. Dunne, 129 Ill. 241; West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill. 295.

In West Chicago St. R. Co. v. Morrison, Adams & Allen Co., the court at page 295 says: “It is also a rule applicable to trespass, as well as to all other actions at law, either for torts or upon contracts, that the judgment is a unit as to all of the defendants, against whom it has been rendered, and cannot be re-! versed as to one or more of them and affirmed as to the. others, but if erroneous as to one is erroneous as to* all.” Citing 1 Chitty’s Pleading 86; McDonald v. Wilkie, 13 Ill. 22; Jansen v. Varnum, 89 Ill. 100; Ragor v. Kendall, 70 Ill. 95; Claflin v. Dunne, 129 Ill. 241.

We are of the opinion, however, that as to appellants. Alton das & Electric Company and Alton, Granite & St. Louis Traction Company, the court did not err in refusing to direct a verdict of not guilty. It has been repeatedly held by the Supreme Court as well as by the Appellate Courts of this State that where there is evidence in the record fairly tending to prove the cause of action charged, it is not error to refuse a peremptory instruction to find the issues for the defendant. National Syrup Co. v. Carlson, 155 Ill. 210; Illinois Steel Co. v. Schymonowski, 162 Ill. 453; Chicago Drop Forge & Foundry Co. v. Van Dam, 149 Ill. 337.

As there will have to be another trial of this case it will be proper for us to pass on the objection made by appellants to the rulings of the court on the instructions.

It is contended by appellants that the court erred in giving the first instruction on behalf of appellee. This instruction is as follows: “The court instructs the jury that by the term ‘proximate cause’ is meant the real actual cause.” This instruction, in our judgment, while technically correct was not calculated to enlighten the jury in reference to the meaning to be given by them to the term “proximate cause” and should have been amplified in regard thereto and said instruction should not have been given, in its present form.

It is next contended that the court erred in giving the fifth instruction given on behalf of appellee. In our judgment the objection to this instruction is well taken for the reason it, in effect, directs a verdict in favor of appellee without requiring the jury to find from a preponderance of the evidence the necessary facts to warrant such verdict.

It is also insisted by appellants that the court erred in refusing the sixth refused instruction tendered on their behalf. While this instruction, in our judgment, states a correct principle of law, at the same time said instruction so far as proper was, in effect, covered by other instructions tendered by appellants and which were given by the court.

It is also contended that the seventh instruction tendered by appellants and refused by the court should have been given. We do not think the court erred in refusing to give this instruction for the reason that the evidence in the record did not warrant the giving of the same.

It is also contended that the court erred in its rulings on the evidence. While, in our judgment, there is some basis for this criticism, at the same time the errors complained of were not of a serious character and on another trial will in all probability be obviated. We therefore deem it unnecessary to go into a discussion of the rulings of the court on the evidence.

For the reasons above set forth, said judgment is reversed and said cause is remanded.

Reversed cmd remanded.


text:
    Pauline Yastardes, Administratrix, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Railroads, § 742

      —when giving of warning to pedestrian at crossing is question for jury. In an action against a railroad company for the death of a pedestrian at a street crossing, where the evidence is conflicting, it is a question for the jury whether the bell of the engine was continuously rung and the whistle sounded in approaching the crossing.
    2. Railroads, § 695*—what is necessary allegation in declaration in action for infury to pedestrian at street crossing. The allegation in the declaration, in an action against a railroad company for. the death of a pedestrian at a street crossing, that the deceased was in the exercise of due care and caution for his own safety at the time of the accident, is a necessary and material allegation and must be proved.
    3. Negligence, § 198

      —when question for court whether injured person was guilty of contributory negligence. While, where reasonable minds would differ from the evidence as to whether or not it was sufficient to prove that an injured person had been in the exercise of due care for his safety, the court should submit the case to the jury, yet, if there is no evidence tending to prove that a person, since deceased, was in the exercise of due care and caution for his own safety as a person of ordinary prudence would exercise under the same circumstances, the court should hold as a matter of law that such person would be guilty of contributory negligence.
    4. Railroads; § 667*—when failure of one approaching crossing to look and listen precludes recovery. Where one approaches a railroad crossing upon a highway it is his duty to look and listen for approaching trains if a reasonably prudent person so situated would look and listen, and a failure to so look and listen precludes a recovery where to have looked and listened would have prevented the injury, and where there were no circumstances or conditions justifying such failure to look and listen.
    5. Railroads, § 667*—when person approaching crossing is guilty of contributory negligence. One who approaches a railroad crossing, at which there is no obstruction hindering a view of an oncoming train, and, although the "flagman endeavors to warn him he is apparently preoccupied with something else and pays no attention to the warning and goes on the track and is struck by the train, is guilty of contributory negligence, as a matter of law.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with finding of facts.
    Opinion filed April 5, 1918.
    C. E, Pope, for appellant; Silas H. Strawn, of counsel.
    John J. Brenholt and Terry, G-ueltig & Powell, 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 Boggs

delivered the opinion of the court.

This appeal is prosecuted by appellant to reverse a judgment for $3,500 rendered by the Circuit Court of Madison county in favor of appellee, as administratrix of the estate of her deceased husband, Anton Vastardes, for damages for the death of said intestate, alleged to have been caused by the negligent operation of appellant’s train.

The declaration consists of four counts. The first count alleges negligence generally in the operation of said train. The second count charges a failure to cause a bell to be rung or whistle to be sounded as provided by statute. The third count alleges a violation of the ordinances of said city limiting the speed of freight trains running through said city to 10 miles per hour. The fourth count charges that appellant operated its said train along its said track to and across Plum street in said city, without any warning, at a high and dangerous rate of speed, and further alleges a failure to keep the bell on said locomotive ringing continuously while approaching said crossing, in violation of the ordinances of said city. All of said counts allege due care on the part of appellee’s intestate prior to and at the time of the injury.

Said cause has been tried three times. On the first trial the court directed a verdict in favor of appellant. A new trial was granted resulting in a verdict for appellee for $1,750. This verdict was set aside and on the third trial a verdict was returned for $3,500. A new trial was denied by the court and judgment rendered thereon. To reverse said judgment this appeal is prosecuted as above set forth.

The record discloses that appellant owns and operates a railroad passing through the City of Alton and across a street known as Plum street. Near this point is the plant of the Illinois Glass Company. Immediately north of the glass works is the main track of appellant, which extends in an easterly and westerly direction along the side of the fence separating the right of way of the railroad from the plant of said Glass Company. Just north of appellant’s main track lie the tracks, five in all, of the Big Four Railroad Company, the one nearest the Chicago and Alton tracks being the main line of the Big Four. All of these tracks occupy a right of way of about 100 feet. Immediately north of and parallel to the northerly track of the Big Four is Second street, the street and railroad tracks being separated by the street curb only. Plum street crosses said railroad tracks and Second street and extends northwardly therefrom.

At the junction of the right of way of appellant and the property line of the Illinois Glass Company at Plum street are located gates leading into said glass plant. At these gates is also stationed a shanty used by a watchman in the employ of said Glass Company.

The record discloses that on February 14, 1914, appellee’s intestate at about 10 o’clock a. m. walked on Plum street, across Second street and onto the tracks and right of way of the Big Four, evidently intending to enter the factory of said Glass Company. He passed across the Big Four tracks and stepped immediately in front of an approaching train of appellant’s in front of the gates above referred to and was struck and killed.

Appellant insists that the court erred, first, in denying the motion made by it at the close of appellee’s evidence and again at the close of all the evidence to direct a verdict in its favor; second, in admitting in evidence a certain ordinance of said city for the regulation of the speed of trains, ringing of bells, etc.; third, in refusing certain instructions offered by appellant; and lastly, that the verdict is against the manifest weight of the evidence.

In our view of the record it will not be necessary to pass on the assignment of error with reference to the ruling on the evidence or instructions. The record discloses that there was a sharp conflict in the evidence with reference to whether or not a bell was rung and whistle sounded as appellant’s train approached the Plum street crossing, where the injury occurred. A large number of witnesses on the part of appellee testified that they were in a position to observe and know whether a bell was rung or whistle sounded if the same occurred, and that they heard none. On the other hand, appellant’s trainmen in charge of the engine in question all testified that the bell was continuously rung and the whistle was sounded as it approached said crossing. It was therefore a question for the jury to determine. There was also a conflict in the evidence with reference tq the speed of the train as it approached said crossing. The evidence with reference to said speed varying from 10 to 30 miles, the preponderance of the evidence being to the effect that the train was running at about 15 to 20 miles per hour at said time. The jury were therefore warranted in finding that appellant was negligent in the operation of said train at the time of the injury.

The principal question in this case is whether or not appellee’s intestate was in the exercise of due care for his own safety prior to and at the time of the injury. There were four eyewitnesses to the accident, one a barber by the name of Roach, whose shop was in a two-story building at the northwest comer of Second and Plum streets, Joe Boelino and said watchman, both of whom were in the shanty. Said watchman died prior to the first trial. Roach, a witness for appellee, was shaving a customer at the time the accident occurred, and testified that he looked out of his shop and saw deceased walking towards the plant of the Glass Company and that when he first saw him he was on the tracks of the Big Four; that he observed the train coming and also observed that if deceased did not stop a collision was inevitable; that deceased did not stop, but walked directly in front of the approaching train and was struck. This witness further testified that deceased walked directly across the tracks and looked neither to the right nor to the left, and seemed to he hurrying to his work.

Meyers, who was in a room above the barber shop, saw the approaching train and saw it strike deceased. He testified deceased had the collar of his coat turned up, Ms cap pulled down over his ears; that he was walking hurriedly towards the gates leading into the glass plant; that he walked directly in front of the approaching train without having turned his head to look in either direction during the time he observed him. This witness also observed the watchman in the shanty motioning, endeavoring to attract deceased’s attention to the oncoming train.

Boelino, who was with the watchman in the shanty, saw the approaching train, saw deceased as he was coming towards the C. & A. tracks and heard the watchman yell and motion to him. He also testified that the warning was not heeded by deceased and that deceased had his cap pulled down over his ears.

The allegation in the declaration that the deceased was in the exercise of due care and caution for his own safety at, the time of the accident was a necessary and material allegation and must be proved. Newell v. Cleveland, C., C. & St. L. Ry. Co., 261 Ill. 505; Gibbons v. Aurora, E. & C. R. Co., 263 Ill. 271; Jorgenson v. Johnson Chair Co., 169 Ill. 429. And while the law is that where reasonable minds would differ from the evidence as to whether or not it was sufficient to prove that an injured person had been in the exercise of due care for his own safety, the court should submit the case to the jury, the law further is that if there is no evidence in the record fairly tending to prove that a deceased person was in the exercise of such care and caution for Ms own safety as a person of ordinary prudence would exercise under the same circumstances; the court should hold as a matter of law that such deceased would be guilty of contributory negligence. Gibbons v. Aurora, E. & C. R. Co., supra; Livingston Warehouse & Van Co. v. Aurora, E. & C. R. Co., 170 Ill. App. 244; Stein v. Chicago & E. I. R. Co., 199 Ill. App. 48.

Where one approaches a railroad crossing upon a highway it is his duty to look and listen for approaching trains if a reasonably prudent person so situated would look and listen, and a failure to so look and listen precludes a recovery where to have looked and listened would have prevented the injury, and where there were no circumstances or conditions justifying such failure to look and listen. Chicago, R. I. & P. Ry. Co. v. Jones, 135 Ill. App. 380; Toledo, St. L. & W. R. Co. v. Christy, 111 Ill. App. 247; Kennedy v. Alton, Gr. & St. L. Traction Co., 180 Ill. App. 146; Stein v. Chicago & E. I. R. Co., 199 Ill. App. 48.

The record discloses that there was no obstruction to hinder appellee’s intestate from seeing an approaching train at the Plum street crossing, and that the flagman tried to warn and stop him from going upon said track. Appellee’s intestate appeared to be preoccupied with something else and gave no attention to said warning. So far as the evidence discloses, no care whatever was exercised by appellee’s intestate prior to and at the time of his injury for his own safety, and under the authorities above set forth it was the duty of the court as a matter of law to find that appellee’s intestate was guilty of contributory negligence, and the court therefore erred in refusing to direct a verdict in favor of appellant.

The judgment of the trial court will therefore be reversed.

Reversed with finding of facts.

Finding of facts. We find as the ultimate facts in this case that appellee’s intestate was not in the exercise of due care for his own safety prior to and at the time of the injury as charged in appellee’s declaration, and that there was nothing to obstruct his view at the crossing in question and that there was nothing to distract his attention at the time, and that without either looking or listening he walked in front of appellant’s train and through his negligence and want of care met the injury which caused his death.


text:
    Nick Yannoulakis, v. Louis Sinopuolo, alias Louis Candos. Harry Rosenberg, Defendant in Error, v. Nick Yannoulakis, Plaintiff in Error.
    1. Attachment, § 113*—how statute construed as to right to amend affidavit, hond and proceedings. Section 28 of the Attachment Act (J. & A. H 519), providing that no “writ of attachment shall be quashed, nor the property taken thereon restored, nor any garnishee discharged, nor any hond by him canceled, nor any rule entered against the sheriff discharged, on account of any insufficiency of the original affidavit, writ of attachment or attachment hond, if the plaintiff, or some credible person for him, shall cause a legal and sufficient affidavit or attachment bond to be filed, or the writ to be amended, in such time and manner as the court shall direct; and in that event the cause shall proceed as if such proceedings had originally been sufficient,” must be liberally construed as to the right to amend the affidavit, hond and other proceedings in an attachment suit.
    2. Attachment, § 113

      —when amendment of hond should he allowed. Where there is sufficient set forth in an attachment bond to show that it was filed in connection with the particular attachment proceedings, the fact that the condition of the hond erroneously recites that plaintiff had on the date of the bond prayed an attachment, etc., at a suit of a third person, such error is not fatal, and an amendment of the bond should he permitted under section 28 of the Attachment Act (J. & A. 519), relating to amendments in attachment proceedings.

      Error to the Circuit Court of Franklin county; the Hon. Junius C. Keen, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    H. F. Knox, for plaintiff in error.
    Moses Pulverman, for defendant in error.

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

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

On August 31, 1916, plaintiff in error, hereafter for convenience called plaintiff, filed in the Circuit Court of Franklin county an affidavit in attachment against the estate of defendant in error, Louis Sinopuolo, alias Louis Candos, hereinafter called defendant, and with said affidavit filed an attachment bond. Thereafter, on September 1st, a writ of attachment was issued by the clerk of said court and was by the sheriff levied on a strip of ground described as 30 feet in width off of the west side of Lot number 1 in Block 17, original plat of the Village (now City) of West Frankfort, Illinois, and was filed for record in the recorder’s office of said county on the 2nd day of September, 1916. Notice of said attachment was given by the clerk by publication. A declaration was filed in said cause and at the November term, 1916, of said court said defendant was defaulted and judgment was rendered against him for $296.34. A special execution was issued and levied on said real estate -and the same was advertised to be sold to satisfy said judgment. Thereafter, on January 11, 1917, defendant in error, Harry Rosenberg, filed an intervening petition setting forth that on September 8,1916, he became the owner of said described premises in fee simple by means of a warranty deed from Louis Candos, and averring that the affidavit for attachment and the bond filed in said cause were wholly void and insufficient to support said writ of attachment and levy; that the purported service by publication on defendant, Louis Sinopuolo, alias Louis Candos, was wholly void and that the judgment rendered in said cause on December 21, 1916, was wholly void. Said petitioner further averred that he had no knowledge or notice of the purported attachment proceeding and the judgment rendered thereon; that the first notice he obtained of said proceeding was the notice given by the sheriff advertising the sale of said premises to satisfy said judgment, and prays for an order opening up said judgment and for stay of proceedings for the sale of said premises and that petitioner be decreed to have a superior right in said premises to plaintiff, the attaching creditor, and that said property be released and said attachment quashed. A demurrer to said petition .being overruled by the court, plaintiff elected to stand by his demurrer and made a motion for leave to amend the bond, affidavit, levy of attachment and publisher’s certificate in said attachment proceedings. On consideration of said motion the court gave leave to amend the affidavit and certificate of publication and said amendments were made, but the court refused leave to amend the bond and held the same to be null and void and insufficient to support said writ of attachment and levy made thereunder. The court also found that the interpleading petitioner was at the time of filing of said petition and since the owner in fee simple of said premises, and ordered that in so far as the rights of said intervening petitioner were concerned the judgment be vacated, and the property attached be released, and that the writ of attachment be quashed and all proceedings had thereunder be vacated and set aside. To said ruling defendant in error duly excepted and prosecutes this writ of error to reverse said judgment.

The only question necessary for us to determine raised by the assignment of errors is as to whether or not the court, in refusing to permit plaintiff to amend said attachment bond and in vacating and setting aside the judgment rendered in said attachment proceeding and in holding the same null and void, erred.

Section 28 of the Attachment Statute, being section 28, of chapter 11, of Jones & Addington’s Statute, provides: "No writ of attachment shall be quashed, nor the property taken thereon restored, nor any garnishee discharged, nor any bond by him canceled, nor any rule entered against the sheriff discharged, on account of any insufficiency of the original affidavit, writ of attachment or attachment bond, if the plaintiff, or some credible person for him, shall cause a legal and sufficient affidavit or attachment bond to be filed, or the writ to be amended, in such time and manner as the court shall direct; and in that event the cause shall proceed as if such proceedings had originally been sufficient.”

The objections raised by defendant in error, Harry Eosenberg, to said bond are, first, that the bond, is dated July 5,1916, and that it appears that the surety, August M. Eggmann, signed the same on said date; and second, for the alleged reason that the condition of the bond shows it to have been given in another case. We have examined the bond and are of the opinion that from its recitations and conditions it sufficiently appears that it was filed in connection with the affidavit in said proceeding and that it is at most an informal or insufficient bond and not a wholly void bond. Said' bond recites among other things that plaintiff with August M. Eggmann, of the City of East St. Louis, and Nick Matalas, of the City of West Frankfort, are held and firmly bound unto Louis Sinopuolo in the sum of $600 lawful money of the United States. The condition of the said bond recites, "that, whereas, the above bounden, Nick .Yannoulakis, hath on the date hereof prayed an attachment out of the Circuit Court of the County of Franklin aforesaid, at the suit of Harvey F. Knox, against the estate of the above-named. Louis Sinopuolo for the sum of $300, and the same being about to be sued out of said court returnable on the 27th day of November, A. D. 1916, to the term of said court then to be holden: Now, if the said Nick Yannoulakis shall prosecute his suit with effect, or, in case of failure therein, shall well and truly pay and satisfy the said Louis Sinopuolo all costs in said suit, and such damages as shall be awarded against the said Nick Yannoulakis, his heirs, executors and administrators in any suit or suits which may hereafter be brought for wrongfully suing out said attachment, then the above obligation to be void, otherwise to remain in full force and effect.” Said bond1 was approved by the clerk of said court on the 31st day of August, 1916.

While the condition of said bond erroneously recites that plaintiff had on the date of said bond prayed an attachment, etc., “at the suit of Harvey F. Knox,” still there is sufficient in said condition and its recitals to show that said attachment proceeding was brought by plaintiff and was being prosecuted for his benefit.

The Supreme Court in considering the above section of the statute has held that the right to amend the affidavit, bond and other proceedings in an attachment suit should be liberally construed. In Schmitt v. Devine, 164 Ill. 537, the court at page 540, in passing on the objection made to an attachment bond, says: ‘ ‘ The objection made to the bond is, that it is conditioned for the payment of damages arising out of the issuance •of a writ returnable on the first Monday of January, 1894, while the writ issued in the cause was returnable on the first Monday of January, 1895. In all other respects the bond complied with the requirements of the statute, and it was filed and approved by the clerk of the court who issued the writ. The bond was defective, but it was amendable in the Superior Court, and being amendable it was not void, and although defective the defect did not deprive the eourt of jurisdiction to render the judgment.”

In the case of Patty v. Winchester, 20 Ill. 261, the court, in passing on an objection to an appeal bond filed on an appeal taken from a justice of the peace on the trial of rights of property, at page 262 says: “The papers were filed in the County Court, and the' usual summons issued, which was served on Winchester only. At the February term, 1858, of the County Court, the appellee entered his motion to dismiss the suit for want of a sufficient appeal bond, and appellant, at the same time, entered a cross motion to amend the bond, which motion was denied, and the motion to dismiss allowed, and judgment for costs against the appellant, to all which he excepted. The error assigned is, in refusing to allow the bond to be amended, and dismissing the suit. The bond shown is a writing signed by the appellant and a surety, and is formal in . all respects, save that it has no seal. Technically, this is no bond, yet it was approved by the magistrate as a bond, and returned by him to the Circuit Court with the other papers in the cause, and there filed. * * * The party had executed a paper, which the magistrate accepted and filed as a bond; he made the attempt, in good faith, to execute a valid bond. As it was technically defective, his motion to amend should have been allowed. In the case of Waldo v. Averett, 2 Ill. (1 Scam.) 487, the court say: ‘If it is admitted that the bond was ever so defective, the court, nevertheless, erred in dismissing the appeal; it ought to have allowed the motion of the appellants to file a good bond. ’ See also the ease of Bragg v. Fessenden, 11 Ill. 544; Boorman v. Freeman, 12 Ill. 165; Trustees of Schools v. Starbird, 13 Ill. 49. These cases all show that in an honest attempt to give a bond, and a paper is signed which the officer accepts as a bond, the party shall not be prejudiced by a defective execution.”

In Himnan v. Kitterman, 40 Ill. 253, the court, in discussing the statute with reference to appeals from justices of the peace, at page 254 says: ‘ ‘ Our statute regulating proceedings before justices of the peace, section 65, p. 325, Rev. St. declares that if, on the trial of any appeal, the bond shall 'be adjudged informal or otherwise insufficient, the party executing the same shall be in no wise prejudiced by reason of such informality or insufficiency; provided he shall in a reasonable time, to be fixed by the court, execute and file a good and sufficient bond. In giving a construction to this provision, it has been held that almost any attempt, made in good faith, to execute an appeal bond, requires the court to allow such amendments as will obviate the imperfection. * * * In this case appellant offered to remove the objection, and in doing so he brought himself within the provisions of the statute, and the court erred in overruling his motion and in dismissing his appeal.”

The statute construed by the court in Hinman v. Kitterman, supra, with reference to the effect of failing to file a sufficient bond in an appeal from a justice of the peace, is very similar to the section of the statute above quoted in reference to the effect of filing a defective or insufficient bond in an attachment proceeding, and we think the same construction should be applied with reference to' the right to amend or to file a new bond under section 28 of the Attachment Statute (J. & A. 519) as is given by the Supreme Court to the statute in reference to defective or insufficient appeal bond in appeals from a justice of the peace. We therefore hold that the court erred in failing to allow plaintiff to amend his appeal bond. There was sufficient set forth in the bond to show that it was filed in connection with the attachment proceedings brought by plaintiff against defendant, Louis Sinopuolo, alias Louis Candos, and the filing of the certificate of levy in the recorder’s office as provided by statute was notice to the defendant Rosenberg of said attachment proceeding and of the lien of the plaintiff as an attaching creditor against the premises in question.

Other errors were assigned on the record, but in view of what we have already said it will be unnecessary for us to pass on the same.

For the reason above set forth the judgment of the trial court will be reversed and the said cause will be remanded.

Reversed and remanded.


author: Mr. Presiding Justice Bogus

text:
    Harry Hill, Administrator, Appellant, v. Kerens-Donnewald Coal Company, Appellee.
    1. Wobkmen’s Compensation Act, § 1

      —what is purpose and effect of statute. The Workmen’s Compensation Act of 1911 (J. & A. If 5449 et seq.) was intended to provide compensation for accidental injuries received by an employee arising out of and in the course of his employment, and the right to compensation for accidental injuries obtains only by virtue of the statute.
    2. Wobkmen’s Compensation Act—when no right of recovery for death due to failure to provide physician. No right of recovery exists in favor of the administrator of the estate of a deceased employee for death due to the alleged failure to furnish a physician for the entire period of disability of an employee, regardless of the length of time the employee was disabled before his death.
    3. Wobkmen’s Compensation Act—when employer must furnish services of physician or surgeon. Section 5 of the Workmen’s Compensation Act of 1911 (J. & A. j[ 5453), requiring the employer accepting the act to furnish to an injured employee necessary “first aid, medical, surgical and hospital services, also medicine and hospital services for a period not longer than eight weeks, not to exceed however, the amount of $200, also the necessary services of a physician or surgeon during such period of disability,” refers to the specified period of disability of eight weeks within which the services of a physician are to be furnished.
    4. Wobkmen’s Compensation Act, § 12*^-u>he« claim, for compensation must he made. Under the Workmen’s Compensation Act of 1911, sec. 14 (J. & A. If 5463), providing that “no proceedings for compensation under the Act shall be maintained unless notice of the accident has been given to the employer as soon as practicable after the happening thereof, and during such disability, and unless claim for compensation has been made within six months after the injury, except that in case of an accident resulting in temporary disability, notice of such accident must be given to the employer within thirty days after said accident; or in ease of the death of the employee or in the event of his incapacity, within six months after such death or incapacity,” etc., a claim for compensation must be made within the time limited.
    5. Workmen’s Compensation Act—when question must be submitted to arbitration. Whenever a question arises in regard to the application of the Workmen’s Compensation Act and the compensation payable thereunder, the controversy must be submitted to arbitration.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    R. F. Tunnell, Jr., for appellant.
    Keefe, Hadley & Baxter, for appellee.

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

   Mr. Presiding Justice Bogus

delivered the opinion of the court.

An action on the case was instituted at the March term, 1917, of the Circuit Court of Madison county by appellant, as administrator of the estate of James H. Fry, deceased, against appellee-to recover for the death of said deceased. A demurrer having been sustained to the original declaration,' which consisted of one count, the same was by leave of court amended and an additional count was filed. A demurrer, filed by appellee to said declaration as amended and said additional count, was sustained by the court and the appellant electing to abide by his declaration, judgment was rendered in bar of action and for costs. To reverse said judgment this appeal is prosecuted.

The amended declaration sets forth, in substance, that appellant’s intestate and appellee were operating under the Workmen’s Compensation Act of 1911 (J. & A. 5449 et seq.) at the time of the injury in question; that the deceased on November 22, 1912, while in the employ of appellee, received an injury arising out of and in the course of his employment and was permanently disabled on account thereof, and thereafter on August 19, 1916, died; that it became and was the duty of the appellee, “the Kerens-Donnewald Coal Company to furnish to the said James H. Fry, necessary first aid, medical, surgical and hospital services, also medicine and hospital services for a period not longer than eight weeks, not to exceed, however, the amount of $200.00, also the necessary services of a physician or surgeon during such period of disability, unless such employee elects to secure his own physician or surgeon; that the said James H. Fry did not elect .to furnish his own physician or surgeon”; that appellee disregarded its duty and failed to furnish to the said James H. Fry first aid, medical, surgical and hospital services from the 27th day of November 1912, to the 7th day of December, 1912, and also failed to furnish any services of a physician or surgeon from and after July 1, 1913; that said James .H. Fry was hit on the head by a falling prop, which paralyzed his right side; that said James H. Fry was permanently disabled and required the care, services and attention of a physician; that by means thereof the same James H. Fry was for the space of several years compelled to endure great pain and suffering, became sick, sore and disordered and, at length, on the 7th day of August, 1916, died as a proximate result of such failure and neglect to so furnish him with the necessary medical and physician’s services, to the damage of the plaintiff in the sum of $10,000, etc.

The additional count is in substance the same as said amended count, except that it does not charge failure to furnish first aid and medical services but charges the failure to furnish a physician to be a wilful failure.

It is contended by appellant in Ms argument for a reversal of said judgment that paragraph (a) of section 5 of the Workmen’s Compensation Act of 1911 (J. & A. ff 5453), makes it the duty of the employer to furnish the services of a physician or surgeon during the entire disability of the employee resulting from the injury without reference to the length of time said disability may last, and that a failure to so furmsh said physician in accordance therewith renders the employer liable in an action of trespass on the case for all damages that may result therefrom.

Said section 5 and paragraph (a) thereof provides as follows (J. & A. ]f 5453): “The amount of compensation which the employer who accepts the provisions of this Act shall provide and pay for injury to the employee resulting in disability shall be: (a) Necessary first aid, medical, surgical and hospital services, also medical and hospital services for a period not longer than eight weeks, not to exceed, however, the amount of $200.00, also necessary services of a physician or surgeon during such period of disability, unless such employee elects to secure Ms own physician or surgeon.”

It will be observed by the reading of the Workmen’s Compensation Act of 1911, that it is intended by that act to provide compensation thereunder for accidental injuries received by an employee arising out of and in the course of Ms employment. The right to compensation under said act must be found in the act itself and the right to recover therefor must be found in said act. In other words, the right to any compensation whatever for accidental injuries obtains only by virtue of the statute and the amount, how the same sba.11 be computed, how and when the same shall be paid are all covered by the act. The liability of the employer does not extend beyond the provisions of the act where an action is based on the duties of the employer under the act.

We therefore hold that no right of recovery exists in favor of appellant as such administrator by reason of the alleged failure to furnish a physician as charged in the declaration, as such right of recovery is not given by the provisions of said statute. We are also of the opinion that the services of a physician or surgeon referred to in paragraph (a) of said section 5 refers to the period of disability mentioned in said paragraph and which is limited to eight weeks. Another reason why this action cannot be maintained by appellant, so far as the averments of the declaration are concerned, is that no claim for compensation is alleged to have been made as provided in section 14 of said Act (J. & A. U 5463). The provision thereof being as follows: “No proceedings for compensation under this Act shall be maintained unless notice of the accident has been given to the employer as soon as practicable after the happening thereof, and during such disability, and unless claim for compensation has been made within six months after the injury, except that in ease of an accident resulting in temporary disability, notice of such accident must be given to the employer within thirty days after said accident; or in case of the death of the employee or in the event of his incapacity, * * * or in the event that payments have been made under the provisions of this Act, within six months after such payments have ceased.”

A further answer to appellant’s contention of a right of recovery in this case is that under the proviso of the Workmen’s Compensation Act of 1911, where-ever a question arises in regard to the application of the law and the compensation payable thereunder, said controversy shall be submitted to arbitration. Under the provisions of said act, said board of arbitration has full jurisdiction to hear and determine said matters in controversy. In the event that either the employer or employee is not satisfied with the award of the arbitration board, they may appeal therefrom to the Circuit Court or the court that appointed the third arbitrator. See proviso to section 10, Workmen’s Compensation Act 1911 (J. & A. 5459).

The allegations of appellant’s declaration do not bring Trim within the provision of said act. So far as the allegations of the declaration are concerned, there is no reason shown why claim for compensation was not made within the time specified by said act, nor why the matters in controversy with reference to first aid, medical services, physician’s services, etc., were not submitted to arbitration.

There was no error in the ruling of the court in sustaining the demurrer to appellant’s declaration as amended and the judgment of the trial court will therefore be affirmed.

Judgment affirmed.


text:
    Frances Volluz, Administratrix, Appellee, v. East St. Louis Light & Power Company, Appellant.
    1. Negligence, § 23

      —who is mere licensee. A city fireman who enters, as authorized by law, upon the leased premises of an electric light company for the purpose of ascertaining if there is a fire in the transformer building is a mere licensee and the lessee owes him no duty except not to wilfully injure him.
    2. Negligence, § 120*—what must be alleged and proved in action for negligent death of licensee. In an action to recover for the negligent death of a licensee upon the leased premises of another, in order to recover on a charge of negligence, it is necessary to aver and prove the existence of a duty on the part of defendant to protect plaintiff from the injury of which he complains, a failure of defendant to prevent that injury, and an injury to the plaintiff resulting from such failure.
    3. Appeal and ebbob, § 1184*—when declaration not aided by verdict. Whenever a declaration fails to state a cause of action for . negligence it is not aided hy verdict, and the question may he raised on appeal.
    4. Negligence, § 120*—when declaration in action for death of city fireman is insufficient. A declaration, in an action for the negligent death of a city fireman, due to an electric shock from a chain on the door of a transformer house occupied by defendant on leased ground, while deceased was investigating a fire, which fails to charge that deceased went upon the premises of defendant at its invitation, is insufficient to sustain a judgment for negligence.
    5. Negligence, § 188

      —when contributory of fireman touching chain on door of electric transformer house shown. In an action against an electric light and power company to recover for the death of a fireman due to electrocution and caused by his touching a chain locking the door of defendant’s transformer house while investigating a fire, evidence held to show that deceased was guilty of contributory negligence.
    Appeal from the City Court of East St. Louis; the Hon. H. L. Browning, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with finding of facts.
    Opinion filed April 5, 1918.
    Barthel, Farmer & Klingel, for appellant.
    T. M. Webb and D. J. Sullivan, 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 Boggs

delivered the opinion of the court.

An action on the case was instituted in the City Court of East St. Louis by appellee as administratrix of the estate of her deceased husband, Ohtman Volluz, against appellant to recover damages for injuries resulting in the death of said intestate alleged to have been caused by the negligence of appellant.

The declaration consists of two counts.. The first • count, in substance, charges that on the 10th day of August, 1914, appellant was possessed of and operating a certain plant for the distribution of electricity in and about the City of East St. Louis for commercial purposes, and was possessed of a certain transformer and transformer house as part of its equipment; that it became and was the duty of appellant to use reasonable care that the electricity so furnished and distributed by it was not permitted to escape and. come in contact with and charge other objects and buildings with which persons were liable to come in contact; that appellant so negligently and carelessly handled its electricity that the same was permitted to escape from its lines and appliances and to charge a certain transformer building with a heavy and dangerous charge of electricity; and that appellee’s intestate in the performance of his duties put his hand upon the lock or a chain attached to the lock on the door of the transformer building for the purpose of entering the same as a fireman, exercising due care and caution for his own safety, when he received a charge of electricity and was electrocuted.

The second or additional count charges that it was the duty of appellant to use reasonable care to provide a certain transformer house possessed by it with sufficient ground wires or appliances by which electricity coming in contact with said transfonner house would be carried into the earth; that appellant negligently and carelessly omitted to provide such appliances and that appellee’s intestate was injured as above set forth.

To this declaration appellant filed a plea of the general issue and also certain special pleas to which replications were filed. A demurrer to the replications being overruled, appellant elected to stand by its demurrer. A trial was had resulting in a verdict and judgment in favor of appellee for $4,250. To reverse said judgment this appeal is prosecuted.

The record discloses that the appellant, the East St. Louis Light & Power Company, on and prior to August 10, 1914, was engaged in the business of supplying electrical current for light and power purposes in East St. Louis and adjacent territory; that it owned and maintained a transformer house some 18 feet long by 8 feet wide, set on posts or pillars about 2 feet high. This building had a floor and framework of wood and was covered and roofed with corrugated iron. It had one door of iron which was closed and locked with a padlock. At the end of this building was a sign which read: “Danger, 13200 volts.” Inside the building was an instrument known as a transformer, its purpose being to transform or “step down” the high voltage or current to a ldwer voltage to be used for light and power purposes.

On the night of August 10, 1914, there had been a storm accompanied with lightning and rain, and the evidence tends to show that the wire running into the transformer had been struck by lightning and in some way had burned out some of the coils. The watchman employed by the Alfo Como Milling Company seeing the light in the transformer house sent in a call to the fire department. Fire Company No. 3 responded, of which appellee’s intestate was the lieutenant and in charge of on the night in question. On reaching the scene of trouble and observing that it was the transformer, appellee’s intestate stated that he would call Phillip Thomas, the assistant captain, which he started to do. In the meantime, however, Thomas came and with appellee’s intestate walked around the transformer house to the front when appellee’s intestate took hold of the chain or padlock attached to the door of the building and was electrocuted.

Appellant’s first contention for a reversal of the judgment in this case is that the declaration and the evidence in support of the same, with all of the inferences reasonably to be drawn, therefrom, fails to show the violation of any duty owing by appellant to appellee’s intestate. In other words, appellant insists that appellee’s intestate in going to said transformer house was at most a licensee, as the call for the fire department was not sent in by appellant but by said Milling Company, and that appellant therefore owed him no duty other than to refrain from wilfully injuring him. Appellant invokes the rule that a person lawfully upon premises by permission of law, but without the invitation of the owner, is a mere naked licensee, to whom the owner owes no duty other than to refrain from wilful or affirmative acts injurious to him. Gibson v. Leonard, 143 Ill. 182; Eckels v. Maher, 137 Ill. App. 45; Huff v. Wells Fargo & Co., 141 Ill. App. 434; Rousch v. Oblong Gas Co., 179 Ill. App. 600; Pauckner v. Wakem, 231 Ill. 280.

Appellee concedes the law to be as above stated but contends that it is not applicable to the facts stated for the reason that said transformer house is located on premises belonging to said Milling Company and not to appellant. The evidence with reference to the ownership of said premises is to the effect that the Milling Company owned the property but that the premises on which the transformer house was situated was leased to appellant. Frank H. Headen, the manager of said Alfo Como Milling Company, a witness on behalf of appellee, testified that: “That building (referring to the building inclosing the transformer) was the Power Company’s, we had nothing to do with that building.” On cross-examination said witness testified: “This transformer house is on land that belongs to the Alfo Como Mills, but is leased to the light company. The transformer building is about 60 feet from the warehouse, that is, the comer of the office is the closest point; it stands out there in an isolated position. ’ ’ The evidence, therefore, while to the effect that the fee in said premises was in said Milling Company, showed that the possession and control thereof was in the defendant, under a lease from said company. It makes no difference whether the appellant owned the fee in the premises on which the transformer was located or whether it simply held possession and control of said premises under a lease, the law applicable thereto with reference to the liability of appellant on a charge of negligence of this character would be the same.

The record discloses that no invitation was given by appellant to appellee’s intestate to go upon said premises. He was therefore a mere licensee under the law, which gives to firemen, where necessary for the protection of property, the right to go upon the premises of any one even against his will for the purpose of saving such property. Appellee in his brief on page 23 says: “It is urged by counsel, and properly so, under the authorities of this State, that persons going upon the premises of another, under the license created by law, is a mere licensee to whom no duty is required of the owner, except not to wilfully injure him. This is the law in Illinois, and in a number of other States; but we contend that this law is not applicable in this case.” Appellee further insists that the averment in his declaration, that the ownership of the property on which the transformer house was located was in the Alfo Como Milling Company, was admitted by the plea of the general issue. In other words, that before appellee would be required to make proof of that averment, a special plea denying such allegation would have had to have been filed, and, not having been so filed, that question was not an issue in the case. The authorities cited by appellee’s counsel do not support his position.

We therefore hold, under the authorities above set forth, that appellee’s intestate at the time of the injury was a mere licensee under the law, which gave him the right as a fireman to go upon the premises occupied and controlled by ap'pellant, and that as such licensee appellant owed appellee’s intestate no duty other than not to wilfully injure him.

In Gibson v. Leonard, supra, the court at page 189 says: “The owner of land and of buildings assumes no duty to one who is on his premises by permission only, and as a mere licensee, except that he will refrain' from wilful or affirmative acts which are injurious. As was said in Sweeny v. Old Colony & N. R. Co., 10 Allen [Mass.] 368: ‘A licensee, who enters on premises by permission only, without any enticement, allurement or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes there at his own risk, and enjoys the license subject to its concomitant perils.’ * # * A license to enter upon the land and premises of another is not always based on the permission of the owner, it is sometimes given by the law. In Cooley on Torts [2nd Ed.] 313, it is said: ‘A third class of licenses comprehends those cases in which the law gives permission to enter a man’s premises. This permission has no necessary connection with the owner’s interest, and is always given on public grounds. An instance is, where a fire breaks out in a city. Here the public authorities, and even private individuals, may enter upon adjacent premises, as they may find it necessary or convenient, in their efforts to extinguish or to arrest the spread of the flames. ’ * * * It is the well-settled doctrine that a mere naked license or permission to enter premises does not impose an obligation on the owner or person in possession to provide against the dangers of ac’cident, and it surely cannot detract from the applicability of the rule that the license or permission has its origin in a source other than such owner or person in possession.”

In actions of this character in order to recover on a charge of negligence, it is necessary to aver and prove three elements to make out a cause of action: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains. (2) A failure of the defendant to prevent that injury. (3) An injury to the plaintiff resulting from such failure. McAndrews v. Chicago, L. S. & E. Ry. Co., 222 Ill. 236; Chicago Union Traction Co. v. Giese, 229 Ill. 262; Devaney v. Otis Elevator Co., 251 Ill. 33.

. The declaration in this ease fails to charge that appellee’s intestate went upon the premises of appellant at its invitation. Therefore, under the above-mentioned authorities appellant owed no duty except not to wilfully injure him. Appellee, however, contends that this question cannot be raised at this time but should have been raised on demurrer or on motion in arrest of judgment. Whenever a declaration fails to state a cause of action it is not aided by verdict and this question can be raised on an appeal.

In McAndrews v. Chicago, L. S. & E. Ry. Co., supra, the court after stating the necessary elements to make a good declaration charging negligence says: “When these three elements concur they unitedly constitute actionable negligence, and the absence of any one of these elements, either in the declaration or proof, renders the declaration insufficient to sustain a judgment for negligence, even after verdict or the proof to establish a cause of action involving actionable negligence (Schueler v. Mueller, 193 Ill. 402; Mackey v. Northern Milling Co., 210 Ill. 115; Faris v. Hoberg, 134 Ind. 269); and it is not sufficient in the declaration to allege that it is the duty of the defendant to do certain things, as that would be but the averment of a conclusion, but the declaration must state facts from which the law will raise the duty.” Citing Ayers v. City of Chicago, 111 Ill. 406; Chicago & A. R. Co. v. Clausen, 173 Ill. 100; Schueler v. Mueller, supra.

We therefore hold that the declaration not only failed to state a good cause of action defectively, but that it wholly failed to state a cause of action against the defendant, and that the evidence offered in support thereof was insufficient to render appellant liable, even though the declaration had been sufficient.

The record in this case further tended to show that appellee’s intestate prior to and at the time of his injury was not in the exercise of due care for his own gaiety. There was a sign in front of said transformer building giving warning of danger, and on the evening in question the evidence is to the effect that the iron covering on the building was heated to the extent that it glowed and showed red. The evidence also is to the effect that appellee’s intestate knew that the transformer was highly charged and was dangerous and on account thereof, on his direction, the hose was not unreeled and no effort was made to put out any fire. The evidence also shows that appellant had notified the captain of the fire department not to attempt to put out any fire at the transformer house, but if one occurred to notify appellant and it would look after the same. This was accomplished by cutting off the electric current to said transformer and was so accomplished in the instant case.

The evidence further discloses that said notice was conveyed by said captain to the different engine houses of said fire department, but is conflicting as to whether appellee’s intestate received said notice.

The great weight of the evidence therefore is to the effect that appellee’s intestate was not in the exercise of due care for his own safety prior to and at the time of his injury.

Other errors were assigned on the record but in view of what we have said it will not be necessary to discuss the same.

For the reasons above set forth the judgment of the trial court will be reversed.

Reversed with finding of facts.

Finding of facts. We find as the ultimate facts in this case, to be incorporated by the clerk as a part of the judgment, that the record, discloses that appellant was not guilty of any negligence resulting in the injury and death of appellee’s intestate, and that appellee’s intestate prior to and at the time of the injury was not in the exercise of due care for his safety.


text:
    George C. Bandy, Appellee, v. Litchfield & Madison Railway Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1725

      —when decision on former appeal is controlling. The decision on á former appeal in a negligence action that the verdict is against the weight of evidence is controlling on a new trial in the court to which the case is remanded and upon a second appeal, if the case presented upon the second trial and appeal is the same as the case on the prior appeal.

      Appeal from the Circuit Court of Madison county; the Hon. Lotus Bernreuteb, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Rehearing denied and opinion modified and refiled June 22, 1918.
    Statement of the Case.
    Action by George C. Bandy, plaintiff, against Litchfield & Madison Bailway Company, defendant, to recover damages for personal injuries received by plaintiff as the result of being thrown from a motor ear driven by a train dispatcher of defendant on its track. From a judgment for plaintiff for $2,625, defendant appeals.
    For earlier decisions on appeal after former trials, see 183 Ill. App. 492, and 196 Ill. App. 560. For the decision on appeal in an action which a companion of plaintiff brought, see Schmidt v. Litchfield & M. Ry. Co., 179 Ill. App. 533.
    P. B. Warren and D, H. Mudge, for appellant.
    Burton & Burton, 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 ancL section number*

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

2. Appeal and error, § 1725*—when decisions on former appeal are controlling. In an action against a railroad company to recover for injury to one due to the derailing of a motor car being operated by one of defendant’s servants on its tracks, held that the evidence presented, although including that of two witnesses who had not testified on former trials, was no different from that on the former trials so as to render the decisions of the Appellate Court on appeal from the judgments on the former trials, that the verdicts were against the weight of the evidence, controlling.


text:
    Joliet Bridge & Iron Company, Appellant, v. East Side Levee & Sanitary District, Appellee.
    (Not to foe reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by the Jdiet Bridge '& Iron Company, plaintiff, against the East Side Levee & Sanitary District, defendant, to recover a balance alleged to be due for material furnished and labor performed in constructing four bridges in said district, and for the expenses incurred in removing and replacing a span in one of said bridges. From a judgment, on a directed verdict, in favor of defendant, plaintiff appeals.
    Whitnbl & Whitnel, for appellant.
    Thomas E. Gillespie, for appellee.

      Abstract of the-Decision.
    Building and constbuction contbacts, § 83

      —when estimate By engineer and agreement as to extra work are necessary to recovery of cost. Under specifications for the construction of bridges for a drainage district, providing that no claims for extra work or material shall be made unless expressly required in writing by the engineer in charge and the prices therefor fixed by him; that no charges for delay shall be made but an extension of time for completion of the work may be made; that the right is reserved to make changes in the plans and specifications without invalidating the contract, and if resulting in increased cost to the contractor a fair price shall be agreed upon in writing before commencing on the changed work, and the contract providing that changes or alterations required by the district shall not vitiate it, but the engineer shall determine the value of the work and reduce it to writing before the change is made and the value added or deducted from the contract price, as the case might be, no recovery can be had for extra work- in removal and replacement, under direction of the engineer, of a span of a bridge for the benefit of another contractor, where no estimate in writing is made by the engineer as to the cost thereof and no agreement made in reference thereto.

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

   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Ben Rogers, Plaintiff in Error, v. Illinois Central Railroad Company, Defendant in Error.
    1. Workmen’s Compensation Act, § 3*—what constitutes extra-hazardous business of loading and unloading in connection with carriage by land. A tie company which maintains a spur track upon which cars are placed by a railroad company for the purpose of being loaded with railroad ties at the time of an injury to an employee engaged in loading a car by the moving of a train on the spur track, is engaged in the • extrahazardous business of “loading and unloading” in connection with “carriage by land” within section 3 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. 1f 5475(3)], so as to he conclusively presumed to have elected to pay compensation under the act, unless it has filed its election not to do so with the Industrial Board as provided by law.
    2. Workmen’s Compensation Act, § 11*-—what constitutes injury arising out of and in course of employment of one loading ties on railroad car. An injury received by an employee of a tie company, due to the movement of a train of cars by a railroad company on a spur track against a car such employee is loading with ties to he moved by the railroad company, is an injury arising out of and in the course of his employment within the Workmen’s Compensation Act.
    3. 'Workmen’s Compensation Act, § 12*—what is essential allegation in action at common law by employee for personal injuries. In an action at common law by an employee of a tie company against a railroad company for personal injuries, due to the negligence of the latter company in movement of its cars while plaintiff was loading a car with ties to be transported by defendant, an allegation that plaintiff’s employer and defendant had elected not to he hound by the provisions of the Workmen’s Compensation Act is essential.
    4. Workmen’s Compensation Act, § 2*—what constitutes an adoption of by those engaged in extrahazardous occupations. Under section 3 of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. If 5475(3)], all employers and employees engaged in extrahazardous occupations come within the act automatically unless they reject the provisions thereof in the manner required by law, and their failure to so reject the provisions of the act is of itself an adoption of the same.
    5. Workmen’s Compensation Act, § 18

      —when no right of action

      lies against negligent third person. Section 6 of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. j[ 5475(6)], providing that “no common law or statutory right to recover damages for injury or death sustained by any employee while engaged in' the line of his duty as such employee other than the compensation herein provided shall he available to any employee who is covered by the provisions of this act,” etc., and section 29 [Callaghan’s 1916 St. Supp. 1[ 5475(29)], relating to actions against third persons whose negligence causes the injury to employees, must be construed together, and, as so construed, to mean that no common-law or statutory right to recover damages for an accidental injury shall be available to any employee, either against his employer or against any third person whose negligence may have caused the injury, where such person had also elected to be bound by the act, the employer in such case being subrogated to the right of the employee or his personal representative to recover, and the amount of recovery being limited to the aggregate amount of compensation payable under the act.
    Error to the Circuit Court of Massac county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Fred R. Young and H. A. Evans, for plaintiff in error.
    Courtney, Helm & Helm, for defendant in error; Blewbtt Lee, W. S. Horton, W. W. Barr and Charles E. Feirich, of counsel.

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

   Mr. Presiding Justice Boggs

delivered fhe opinion of the court.

An action on the case was instituted in the Circuit Court of Massac county by plaintiff in error, hereinafter called plaintiff, against defendant in error, hereinafter called defendant, to recover damages for injuries sustained by him while engaged as an employee of the Ayer & Lord Tie Company, hereinafter called the Tie Company, in loading railroad ties for said Tie Company from its freight yard into cars to be carried by defendant company.

The declaration as finally amended consists of two counts. The first count charges, in substance, that defendant Railroad Company operated a certain spur track located on the premises of said Tie Company and which connected with the main line of defendant’s railroad in said county, and used the said spur track for the purpose of loading its cars with freight; that on the 15th of August, 1916, defendant placed upon said spur ten ears to be loaded with crossties from the freight yard of said Tie Company for shipment on its said railroad; that plaintiff was in the employ of said Tie Company for the purpose of loading said ties, and which so engaged the “defendant by its agents and servants negligently and carelessly drove a certain locomotive engine and train of cars of the defendant into and upon the said spur track and to and against the car in which the plaintiff was then and there necessarily standing in the discharge of his duties, and while the plaintiff was using due care for his own safety, and struck the car aforesaid with great force and violence,” and that by means whereof plaintiff received the injuries complained of, alleges damages, etc.

The second count is substantially the same as the first except that in addition to the averments in the first count it alleges that the ties being loaded by plaintiff at the time of the injury were consigned to Detroit, Michigan. A demurrer filed by defendant to said declaration was by the court sustained. Plaintiff elected to abide by said declaration, and a judgment was thereupon rendered against him in bar of action and for costs. To reverse said judgment this writ of error is prosecuted.

It is first contended by plaintiff for a reversal of said judgment that it does not appear from the averments of said declaration that said Tie Company was at the time of the alleged injury engaged in an extra-hazardous business as contemplated by section 3 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. [[ 5475(3)]. The declaration does not specifically aver as to whether plaintiff, said Tie Company, or the defendant were operating under the Workmen’s Compensation Act. That question can only he determined from the averments of fact set forth in the declaration. The declaration avers, among other things, that the defendant “operated a certain spur trade then and there being located on the premises of the Ayer & Lord Tie Company connecting with the main line of the' railroad aforesaid, in the City of Brook-port, in said county.” It is further averred in said declaration that defendant “on the day aforesaid, in the county aforesaid, placed upon the said spur track a large number of cars, to wit, ten cars, to be loaded with crossties for shipment upon its said railroad by the owner and shipper of said ties, to wit, the Ayer & Lord Tie Company, a corporation, from the freight yard and premises of said Ayer & Lord Tie Company then adjoining said spur track; the plaintiff then and there being in the hire and employment of the said Ayer & Lord Tie Company for the purpose of loading the ties of the said Ayer & Lord Tie Company into and upon the cars of the defendant aforesaid.”

Paragraph “b” of section 3 of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. [[ 5475(3) (b)] provides that: “The provisions of paragraph (a) of this section shall only apply to an employer engaged in any of the following occupations, enterprises or businesses, namely:” (Here follow four subdivisions), number 3 of said subdivisions being: “Carriage by land or water and loading or unloading in connection therewith.” The averments of the declaration are to the effect that the Tie Company was engaged in the business of loading and unloading in connection with carriage by land. In other words, that defendant was a common carrier. The spur track referred to was on the premises of and belonged to said Tie Company and it was engaged at the time of the injury to plaintiff in loading ties on cars placed on said spur by defendant. These ties were to be carried by land as contemplated by the provisions of the Workmen’s Compensation Act. Said Tie Company would therefore be conclusively presumed to have elected to pay compensation thereunder, unless it had filed its election not to do so with the Industrial Board as provided by said statute.

Plaintiff at the time of his injury being an employee of said Tie Company, and being engaged in loading ties in the cars placed on said spur by defendant, would conclusively be presumed to be operating under the Workmen’s Compensation Act.

In Friebel v. Chicago City Ry. Co., 280 Ill. 76 [16 N. C. C. A. 390], the court at page 82 says: “Under the holding of this court in Armour S Co. v. Industrial Board of Illinois, 275 Ill. 328, appellant’s employer, the Hartman Furniture and Carpet Company, in maintaining its warehouse for the storing of its furniture and from which distribution of furniture was made to its customers, was operating a warehouse within the meaning of subdivision 4 of paragraph (b) of section 3 of the Compensation Act [Callaghan’s 1916 St. Supp. 5475(3) (b) 4], and was therefore engaged in one of the hazardous occupations mentioned in section 3. Appellant and his employer having made no election not to be bound by the Compensation Act were automatically brought within its provisions and are governed by all of those provisions, provided appellant at the time of his injury was engaged in an employment connected with the operation of said warehouse.” "

It is next contended by plaintiff that the injury complained of did not arise out of and in the course of his employment as contemplated by the statute. Without going into an extended discussion of this proposition we are of the opinion that the injury sued for in this case did arise out of and in the course of plaintiff’s employment. The declaration avers that he was in the employ of said Tie Company and that said Tie Company was engaged in the business of loading ties for shipment with defendant railroad, and that at the time of the injury and while in the employ of said Tie Company he was injured while loading ties on said spur track.

Lastly it is insisted by plaintiff that even though he, the defendant in error, and the Tie Company were all operating under and were bound by the provisions of the Workmen’s Compensation Act, and even if plaintiff’s sole remedy is a proceeding before the Industrial Board for compensation instead of a common-law action based on negligence for damages, that defendant cannot take advantage of this by demurrer, because the declaration fails to allege positively either that these parties were or were not operating under the Workmen’s Compensation Act. At the time of this "alleged injury the Workmen’s Compensation Act was in full' force and effect. All employers who are enumerated in paragraph (b) of section 3 of said act were conclusively presumed to have elected to be bound by the act, and automatically, without any volition on their part, were brought under the act, unless within a specific time and in a specified manner they elected not to be bound by the act. The elective feature of the act was to be exercised to avoid being bound by the act—to merely remain passive and inactive and do nothing, meant that automatically one was brought under the act. The declaration fails to allege either directly or indirectly that said Tie Company, plaintiff’s employer, or the Illinois Central Railroad Company had elected not to be bound by the provisions of the Workmen’s Compensation Act. An allegation of .that character is essential to the plaintiff’s right to bring a common-law action against the defendant, for the reason that if defendant is operating under the Workmen’s Compensation Act, plaintiff would be unable to state a cause of action against it at common law based on negligence, but would have to bring a proceeding before the Industrial Board against his employer for compensation. Plaintiff can maintain a cause of action at common law against the defendant only in the event defendant was at the time of said injury not operating under and bound by the Workmen’s Compensation Act.

In Yeancey v. Taylor Coal Co., 199 Ill. App. 14, the court at page 18 says: “All employers and employees come under the act automatically, unless they reject it in the manner described above; that their failure to so reject the provisions of the act is of itself an adoption of the same. As there was no averment in the declaration that appellant had rejected the provisions of the Compensation Act, there was a legal presumption that appellant had accepted the terms of the act and it must be bound thereby, and this is so regardless of whether appellee desired to come under the act or not. * * * The declaration in this case failed to allege directly or indirectly that appellant was not operating under the provisions of the Compensation Act, which was a fact essential to appellee’s right of action, and such fact could not be implied or inferred from those which were alleged, consequently a verdict for appellee did not cure the defect, and the court erred in not sustaining the motion of appellant in arrest of judgment.”

We therefore hold that inasmuch as the allegations of the declaration show that said Tie Company and defendant Railroad Company and the plaintiff were all engaged in an extrahazardous occupation, they would be conclusively presumed to be operating under the Workmen’s Compensation Act. If we are correct in this holding there can be no recovery in this case under the averments of plaintiff’s declaration.

Section 6 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Snpp. 5475(6)] provides: “No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee other than the compensation herein provided shall be available to any employee who is covered by the provisions of this act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled. to recover damages for such injury.”

The Supreme Court in construing section 6, in Keeran v. Peoria, B. & C. Traction Co., 277 Ill. 413, holds that section 6 should be construed in connection with section 29 of said Act [Callaghan’s 1916 St. Supp. j[ 5475(29)] in determining the right of recovery of an injured party who was in the employment of a company operating under the Workmen’s Compensation Act, and who while engaged in the work of his employer receives an injury growing out of and in the course of his employment, through the negligence of some third party. The court at page 419 says: “If section 6 were to be construed alone the appellant’s claim in regard to its meaning would have much force, but the rule of construction requires the whole act to be construed together, and in determining the meaning of section 6 the provisions of section 29 cannot be disregarded. The two sections, when construed together, must be regarded as meaning that no common-law or statutory right to recover damages for any accidental injury arising out of and in the course of his employment shall be available to any employee, either against his employer or against any third person whose negligence may have occasioned the injury, where such person had also elected to be bound by the act, the employer in such case being subrogated to the right of the employee or his personal representative to recover, and the amount of the recovery being limited to the aggregate amount of compensation payable under the act.” Again at page 423 the court says: “It was not intended that the injured person should be entitled to double compensation. Therefore the act provided, in section 29, that if the injury was caused by another than the injured person’s employer, under- circumstances imposing upon the former a legal liability for damages, and such other person was under the provisions of the act, the burden of making compensation should fall upon the person so causing the injury and the compensation should be such as was provided by the act, and the employer of the injured employee should be subrogated to his employee’s rights against the person causing the injury.”

In Friebel v. Chicago City Ry. Co., swpra, the court at page 86 [16 N. C. C. A. 408] says: “There can be no question, we think, when sections 6 and 29 are construed together, that the employee is not entitled to more than the compensation allowed by the Compensation Act in such a case, and the party directly liable to him for such compensation is his employer. Such was the holding of this court in the case of Keeran v. Peoria, B. & C. Traction Co., 277 Ill. 413. It was also held in that case that the injured employee could not maintain an action against the party causing the injury where the third party and himself and his employer are all bound by the provisions of the Compensation Act. We see no reason for receding from that holding.”

We hold, therefore, in view of the language of the Supreme Court in Keeran v. Peoria, B. & C. Traction Co. and Friebel v. Chicago City Ry. Co., supra, that inasmuch as plaintiff, said Tie Company, and defendant, under the allegations of the declaration are all presumed to be operating under the Workmen’s Compensation Act, there is no right of recovery in favor of plaintiff against defendant, even though plaintiff was injured through the negligence of defendant as charged in the declaration. The right of recovery, if any against defendant, would be in the Tie Company, the employer of plaintiff, and its right of recovery would be limited to the amount of compensation 'which it had paid or become liable for to plaintiff under the Workmen’s Compensation Act.

There being no reversible error in the ruling of the trial court in sustaining the demurrer to the declaration and in rendering judgment thereon, the judgment of the trial court will be affirmed.

Judgment affirmed.