text:
    Jennet Bridge & Iron Works, Appellee, v. E. P. Churchill et al. Charles J. Off, Appellant.
    Gen. No. 5,803.
    1. Appeal and error, § 866

      —what abstract must contain. Where objections and exceptions to a master’s report are not in the abstract, error cannot be assigned.
    2. Equity, § 435*—what is proper form of objections to a master’s report. Objections and exceptions to a master’s report must be specific.
    3. Stipulations, § 18*—what is effect of a stipulation. Where it was stipulated in a case that the real estate involved was mortgaged by a trust deed and the decree rendered was subject to such trust deed, the failure to make the trustee a party to the case could not affect the rights of a defendant or he available on appeal.
    4. Appeal and error, § 409*—when objection as to nonjoinder of parties will not be considered. Where real estate involved in a case was subject to a trust deed but no question ,was raised by plea, answer or demurrer to the nonjoinder of the trustee as a party, the question would not be considered on appeal.

      5. Mechanics’ liens, § 84

      —-when statute is complied with. Lien statute of 1903, § 21, J. & A. ff 7159, as to claims for liens, held to be complied with where certain contractors filed claims within four months.
    6. Mechanics’ liens, § 17*—when lien is allowed. While items for wheelbarrows, a telegram and protest fees cannot be made the subject of lien under the Mechanics’ Lien Act, the allowance of such items will not be considered on appeal where no objection was made to a master’s report, the error being thereby waived.
    7. Appeal and error, § 1575*—when trifling error is ignored. An improper allowance of certain items in a large decree may be ignored under the maxim de minimis non curat lex.

    Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    George J. Jochem, for appellant.
    Covey, Campbell & Covey, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, samo topic and section number.

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

This is an appeal from a decree for a mechanic’s lien in a certain petition or cause under the statute in which the appellee was petitioner and Charles J. Off appellant, E. P. Churchill, E. C. Burroughs, Walter F. Benson, George K. Spoor, Sidney Lovell and Margaret Off were defendants. Benson filed an answer and intervening petition and Charles J. Off, Margaret Off and Lovell filed answers, and replications were filed to all of the answers, and Spoor, Churchill and Burroughs were defaulted. The cause was referred to the master to take proofs and report his conclusions of law and fact, and he made his report of proofs and conclusions on January 16, 1913, which was approved by decree entered on January 25, 1913, finding and decreeing concurrent liens in favor of appellee for $5,654.43 with legal interest from April 27, 1911; in favor of said Lovell for $1,771, and in favor of said Benson for $6,753.89, with legal interest from December 10, 1910, and directing that the real estate described in the decree be sold subject to a trust deed given by said Charles J. Off to Walter S. Horton as trustee, to secure the sum of $38,000 and interest from February 1, 1912, to satisfy said liens, and from that decree Charles J. Off alone has taken this appeal.

It appears from recitals in this decree and from a mere reference thereto in the abstract of the record that objections to the master’s report and exceptions thereto were filed, but they are not in the abstract, so that really there is nothing before this court on which error could be assigned. Cahill v. Printy, 138 Ill. App. 600, and cases therein cited.

An examination of the record fails to disclose any specific objections or exceptions to said report. Objections and exceptions must be specific. Springer v. Kroeschell, 161 Ill. p. 370 of the opinion.

Notwithstanding the noncompliance with the rules of court, we will somewhat briefly note the merits of the case. It appears that appellant was the owner in fee of the real estate in question and that he had prior to any negotiations with Churchill and Burroughs mortgaged the same for purchase money by the trust deed referred to in said decree. Appellee and appellant and others through their solicitors by stipulation filed in this case so agreed prior to the entry of said decree. Said decree provides for the sale of said real estate subject to said trust deed, so that the failure to make the trustee therein a party to this case cannot effect his rights and would be of no avail to the appellant on the hearing of this appeal. All that could have been accomplished by making the trustee a party was done by the stipulation. Bidders at the sale under the decree were sufficiently advised by the decree itself just what the interest of the trustee was. No question was raised by plea, answer or demurrer of the nonjoinder of the trustee and the point cannot be made here.

An objection of nonjoinder of parties if not made by demurrer, plea or answer will not be considered when raised in a court of review where it does not appear that the judgment or decree has the effect of depriving- the omitted parties of their rights. Pease v. Chicago Crayon Co., 235 Ill. 391.

It further appears from the evidence that Churchill and Burroughs held said real estate under a verbal lease and contract which was intended by the parties thereto to be put in writing, but which had never been signed, and the master in substance reported and the decree found that Churchill and Burroughs occupied said real estate as tenants of appellant, and that appellee with the knowledge, consent and permission of appellant furnished a large amount of structural iron and steel by virtue of a contract with said Churchill and Burroughs which was knowingly permitted by appellant to be used in the construction of a theater building on said real estate, and that the balance due said appellee therefor is $5,654.43, and legal interest on the same from April 27, 1911; that said Lovell with like knowledge, consent and permission of appellant, furnished the plans and specifications that were used in the construction of said theater building pursuant to a contract with said Churchill and Burroughs therefor, by which he was to receive three and one-half per cent, of the estimated cost of said theater building, and that said Lovell furnished to appellant plans and specifications for a further improvement on said real estate consisting of a store and office building addition to said theater building, and that there was due to him for said last mentioned plans and specifications $250, and that he was also entitled to one and one-half per cent, for the superintendence of said building, amounting to $391, and that payments had been made thereon of $600, leaving a balance due him of $1,771; that said Benson with the like knowledge, consent and permission of appellant made a ten per cent, contract with Churchill and Burroughs to erect said theater building, and also to contract for and furnish labor and material for the same, and that he furnished the labor and materials therefor, and that the total amount due him therefor under said contract was $17,389.50, and that under his ten per cent, contract he was entitled to $1,738.95, and that the total amount due him was $6,753.89, with legal interest thereon from December 10, 1910.

Under the evidence we find that Churchill and Burroughs entered into contracts with appellee, said Benson, and Lovell to have erected for them as owners of the interest which a verbal lease from appellant vested in them of the real estate of which appellant was the owner in fee. They in no sense proceeded with the erection of the building as contractors for appellant and therefore neither appellee, said Benson, nor said Lovell was a subcontractor, but each was an original contractor and did separate parts of the work on said theater building. It is true that neither appellee, said Benson, or said Lovell commenced any suit to establish any lien within four months after the completion of the work, or the final delivery of the materials therefor. The building, for some reason not stated, seems never to have been completed. Tt is apparent it was not the fault of anyone or more of the persons who obtained a decree for a lien.

The law does not require either the commencement of proceedings to establish a lien or the filing of any statement for lien unless the person desiring to establish a lien desires to do so as against some other creditor, incumbrancer or purchaser, and if he wishes to foreclose such third parties rights he must either commence proceedings, or file the statutory claim for lien, within said four months. (Section 21 of Lien Statute of 1903.) It appears however that-claims for liens were filed by appellee, said Benson, and said Lovell within said four months, and we cannot see why they are not all in compliance with said section 21 of said Lien Statute.

Appellant is not in a position to raise any question as to the authority of Benson to purchase materials for said building. As we view the case that was a matter wholly between said Benson, Churchill and Burroughs.

As to the point made that a lien is created for wheelbarrows, a telegram and protest fees, it is true those items cannot be made the subject of lien under the statute, yet, no point was made as to those three items in the objections and exceptions to the master’s report, and such point was therefore waived, and again payments were made on said Benson’s bill of much more than enough to cover those items. Those items amounted to so very little in a large decree that on appeal they ought to be ignored anyway under the maxim of de minimis non curat lex. For the reasons indicated, the decree of the trial court is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Whitney

license: Public Domain

text:
    Benjamin S. Pearsall, Appellant, v. The Elgin National Bank, Appellee.
    Gen. No. 5,808.
    1. Injunction's, § 204

      —when complainant has burden of proof. A complainant who files a hill praying that a defendant he restrained from transferring a certain promissory note, and that said note be released and discharged as a liability against complainant, has the burden of establishing the case stated by his hill by a preponderance of evidence.
    2. Bills and notes, § 308*—when note is discharged. Where a plaintiff executed and delivered a note to a bank in satisfaction of an assistant cashier’s indebtedness to such bank, and such cashier gave additional notes of his own to secure the debt but the evidence did not show that plaintiff’s note was to be cancelled or taken up by such additional notes, held that the plaintiff was not harmed by such course.

      3. Appeal and error, § 1395

      —when finding of trial court will not be disturbed. The conclusion of a trial court that the material allegations of a bill to enjoin the transfer of a note and for discharge of such note were not proved, held sustained by the evidence.
    Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Rehearing denied October 9, 1913.
    DeGoy B. Ellis, for appellant; Eugene Clifford, of counsel.
    Russell & McNerney and R. S. Egan, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

Benjamin S. Pearsall, appellant, filed a bill in the court below against the Elgin National Bank, appellee, praying in substance that appellee be restrained from transferring a certain promissory note given by appellant to appellee and from entering the same in judgment, and that said note be released and discharged as a liability against appellant.

An answer was filed and replication to the answer. Subsequently the bill was amended, an answer filed to the amended bill and replication to this answer was filed. The cause was heard before the court on the verbal testimony of witnesses there produced and certain documentary evidence offered as exhibits. The bill on hearing was dismissed for want of equity and from the decree dismissing the bill this appeal is taken.

There are seven errors assigned: First, error in-admitting improper evidence offered by appellee; second, error in rejecting proper evidence offered by appellant ; the third, fourth, fifth, sixth and seventh are all in substance that the proof does not warrant the decree.

No argument is made by the appellant, or even suggested, in support of the first and second errors assigned, and therefore these errors are treated as waived. The case then comes before this court solely on questions of fact. We do not see that any legal questions are involved. It was incumbent on the appellant to establish the case stated by his bill by the preponderance of the evidence, and the only question before this court is, has he done so 1

The bill charges in substance that appellee had been running as a bank for several years; that M. G. Jocelyn was on December 16, 1910, assistant cashier of appellee; that on December 16, 1910, G. F. O’Hara, then appellee’s cashier, reported to appellant that Jocelyn owed appellee unsecured notes to the amount of $12,937, or more; that said cashier also reported that Jocelyn owed other notes that were fully secured; that appellee was in a bad condition because of Jocelyn’s unsecured notes and the other notes, and that the capital of appellee was in danger of being reported impaired, and that Jocelyn’s indebtedness should be paid in cash or good notes substituted for the unsecured notes; that said cashier on behalf of appellee then promised appellant that if appellant would make and deliver to appellee his note for $12,230 it would be accepted by appellee in full satisfaction of all of Jocelyn’s indebtedness; that Jocelyn would be retained as assistant cashier at a salary of $2,400 a year and as one of appellee’s directors; that said cashier further agreed for appellee that Jocelyn should transfer all his property to appellant as a further consideration for the giving of said noté for $12,230; that appellant was without knowledge on the subject except what was then told him by said cashier, and believing the same, and relying thereon, he made the said note, and that it was the understanding and agreement that appellant was to be and remain the sole and only signer of said note, but that appellee subsequently obtained Jocelyn’s signature to said note, and that by reason thereof said note became void as to appellee, but not so as to third persons. The hill then alleges in substance that appellee failed to keep any of its said agreements that entered into the consideration of said note, and that a request by appellant was made of appellee that appellee cancel said note, or in some way keep appellant from all liability thereon, but appellee refused so to do.

The answer in substance admits that appellee is a bank; admits Jocelyn is appellant’s brother in law, and that Jocelyn was on December 16, 1910, and for some time before that appellee’s assistant cashier and one of its directors; admits that said cashier advised appellant that Jocelyn was indebted to appellee, and that Jocelyn’s personal indebtedness amounted to $12,937, or more, and that he was otherwise indebted to appellee; admits that said cashier stated to appellant that Jocelyn’s personal indebtedness would have to be paid or secured so that it would meet the approval of the bank examiner. The answer in substance denies all of the other material allegations of the bill, and avers that appellant had full knowledge of Jocelyn’s affairs, and that he signed said note as a surety for Jocelyn out of consideration of the family relationship, and to aid Jocelyn in his financial troubles.

In the main the evidence in support of the bill is that of appellant, and in the main the evidence in support of the answer is that of said cashier. The evidence of appellant and of said cashier is in absolute conflict on the material issues. If the case rested there we would be of the opinion that the appellant has not established any of the material allegations of his bill by a preponderance of the evidence. The additional evidence furnishes proof of circumstances which seem to us to corroborate said cashier’s theory of the case, so we are inclined to the opinion that appellant understood he was to be security only on said note.

As to the several notes which were to be taken up or satisfied by the new' note in question, the evidence shows they were all taken off appelleé’s books, and taken out of appellee’s notes and put into a basket on the cashier’s desk, and when Jocelyn asked for them the cashier told him they better remain and Jocelyn acquiesced in that and is not now making any complaint. Appellee has never sought to enforce them against him So far as appears from the evidence. It is charged that the following May the cashier took two notes covering the indebtedness included in the note in question, one a note for $1,000 signed by Jocelyn, and one for about $2,700 signed by him and his wife. These notes were due in a year and did not have the effect of extending the time of payment of the note in question. There is no evidence to the effect that the $12,230 note was to be cancelled or taken up by these two notes. Oxley v. Storer, 54 Ill. 159. We fail to see how the appellant was harmed thereby.

It seems that appellee was seeking a reorganization, and as the examiner claimed the surplus had become exhausted by bad paper, and that the note in question for $12,230 was therefore an excess loan, he recommended the taking of these additional notes, appellee still to hold the note for $12,230 as the primary indebtedness. Appellant was not and could not be harmed by such a course.

Jocelyn testified that he quit appellee’s service December 31, 1911; that his term was out and that he had a couple of months prior thereto handed in his resignation; that he had not talked with anyone about it except with the president; that he told him he had it in mind and that the president said he thought he would resign if he were in Jocelyn’s place, so that it would appear that Jocelyn quit appellee’s service voluntarily.

The trial court had the advantage of seeing and hearing the witnesses personally and came to the conclusion that the material allegations of the bill were not proved. We have before us only the record and are of the same opinion. The judgment of the trial court is therefore affirmed.

'Affirmed.

Mr. Justice Carnes having tried the case in the court below, took no part in this decision.


text:
    Lena Wenske et al., Appellants, v. Henry Kenneke and Christian Meier, Trustee, Appellees.
    Gen. No. 5,811.
    1. Evidence, § 160

      -—what is evidence of settlement. In an action to have deeds of a deceased person declared mortgages, evidence of the grantee that he did not have in his possession any notes or evidence of indebtedness given by the deceased to him, and had not had any such notes since his death, was not evidence of a settlement with the deceased.
    2. Evidence, g 165*—when evidence is inadmissible as self-serving declaration. Where an issue was whether or not certain deeds made by a deceased person were in fact mortgages, the acts of the executor of the grantor in those deeds, in putting in an inventory the real estate described or intended to be' described in the deeds, would throw no light on the issue and would be in the nature of a self-serving statement.
    3. Appeal and error, § 1396*—when findings will not be disturbed. A finding that allegations of a bill to declare deeds mortgages were not sustained will not be disregarded when based on conflicting evidence unless manifestly erroneous.
    4. Mortgages, § 31*—iohat proof is necessary to show that deed is mortgage. A deed that is absolute on its face is not to be considered a mortgage unless it is made to appear clearly and satisfactorily that it was so intended at the time of its execution.
    Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    R. A. Green, for appellants.
    MoDougall & Chapman, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

Appellants filed their bill on October 3,1912, to have a certain quitclaim deed dated October 11, 1905, and a certain warranty deed dated October 31, 1905, given by their father to appellee Henry Kenneke, declared to have been mortgages only, for the security of certain indebtedness, and for an accounting and to redeem. An answer was filed traversing the material allegations of the bill, to which a replication was filed, and on the issues so formed the cause was heard in and by the court below on the verbal testimony of witnesses there produced, and documentary evidence offered and received as exhibits. A decree was entered dismissing the bill for want of equity from which this appeal is prosecuted.

The errors assigned are, error in admitting incompetent evidence on the part of appellee Kenneke; error-in rejecting competent evidence offered by appellants and all the other errors assigned raising questions of fact only. The errors in ruling on evidence can be briefly disposed of. Appellee Kenneke did not, as claimed by appellants in their argument, testify to any settlement with the father of appellants. It is a misconception of the evidence to so say. What he testified to was that he had not in his possession any notes or evidence of indebtedness given by the deceased to him, and had not had any such in his possession since the death of appellants’ father.

Ah inventory in the estate of the deceased, made up by his executor, was offered and its admission refused. This was proper because the issue was whether or not certain deeds made by the deceased were in fact mortgages, and the acts of the executor of the grantor in those deeds in putting in an inventory the real estate described, or intended to be described in the deeds, would throw no light on that issue and would be in the nature of a self-serving statement.

We see no reversible error in rulings on evidence. The remaining errors go simply to the facts in the case as shown by the evidence.

It appears from the evidence that appellants’ father was the brother in law of appellee Kenneke and was ill in a hospital at Winnetka, Illinois. About five or six weeks before he died he called up an attorney by the name of Bathje, who was and had been appellee Kenneke’s attorney, and stated to Bathje that he had sold his real estate to appellee Kenneke, and that Bathje should get the title in shape and prepare a deed for him to execute, and that in pursuance of such conversation a deed was prepared. A few days later the grantor in the first deed gave a second deed to correct an error in the description of the real estate. The grantor in these deeds- died November 11, 1905, leaving a will by which he gave his real estate to appellee Christian Meier in trust for the three children of the testator. This will by the way, was dated July 23, 1904, and the two deeds were dated respectively October 11, 1905 and October 31, 1905. On October 3, 1912, seven years after the giving of the first deed, appellants commenced this suit to have said deeds set aside and declared mortgages only and asking for leave to redeem therefrom.

The trial court upon a full hearing found that the allegations of the bill were not sustained, and the conclusion of the trial judge on conflicting evidence, as this was, should not be disregarded unless clearly and manifestly erroneous.

It is the settled law of this State that a deed that is absolute on its face is not to be considered a mortgage unless it is made to appear clearly and satisfactorily that it was so intended at the time of its execution. Strong v. Strong, 126 Ill. 301; Story v. Springer, 155 Ill. 25.

A careful review of the evidence in this case does not satisfy this court that the evidence is of that clear and convincing character to warrant a finding; that these deeds were but in fact a mortgage, and so intended by the parties thereto. There is no proof that at the time when said deeds were executed the grantor therein gave to appellee Kenneke any note or other evidence of indebtedness. There is evidence of certain things that appellee Kenneke is alleged to have said subsequent to the death of the grantor in the deeds. It clearly appears from the evidence that appellee Kenneke had advanced a considerable sum of money to appellants’ father for certain purposes, and to pay his hospital bills at the sanitarium. Bathje testified that the deceased Heinberg told him he had sold his land to appellee Kenneke, and to make out a deed and send to him, and testified to other things tending to show that the deceased called the transaction a sale. It appears from the evidence that at the funeral of the deceased and again at appellee Kenneke’s home in Elgin that Kenneke said in substance to or in the presence of all the appellants that if they would get the money together and pay him what their father owed him he would deliver up the papers to them, whatever that might have meant. What appellee Kenneke said is just as consistent with meaning that this land had been conveyed to him in payment of what appellants’ father had owed him in the past, and if they would pay him what their father had owed him he would give up the land.

It appears that the executor of the deceased had certain conversations and wrote certain letters to appellee Kenneke about the property. To these conversations and letters, it would appear from the evidence that appellee Kenneke made no reply, or else told the executor that he owned the property. It is probably true that appellee Kenneke intended at the time he said to appellants that if they would pay over to him what he had in the property, or scrape the money together and pay him what their father had owed him or what their father owed him, he would have conveyed the land to them; hnt it is to be borne in mind that this bill was not filed until about seven years after these statements are alleged to have been made, and it cannot reasonably be said that appellee Kenneke intended to leave this matter open for years.

It seems from the conversations detailed that appellants did not ask him how much money he had in it nor did he state to them how much money he had in the property, or how much their father owed him or had owed him.

We are satisfied that the evidence falls far short of that clear and convincing character required by the law, to have deeds absolute in form declared mortgages only. Decree affirmed.

Affirmed.


text:
    The Modern Woodmen of America et al., Appellants, v. Mary O’Connor, Appellee.
    Gen. No. 5,816.
    1. Witnesses, § 123

      —when beneficiary of insurance is competent. A beneficiary named in a fraternal benefit certificate is a competent witness in an action for benefits.
    2. Insurance, § 809*—what persons may be beneficiaries. A person who is partially dependent on an insured even though not related to him may be a beneficiary.
    3. Insurance, § 809*—what persons are “dependent.” The word “dependent,” as used with reference to fraternal benefit associations, is in some sense at least used as similar to the dependence which usually obtains in the family relation, and the question of dependency of a beneficiary is one of fact.
    4. Insurance, § 814*—when stepmother is proper beneficiary. Evidence held to establish the “dependence” of a stepmother on a member of a fraternal benefit society, wherefore she was entitled to the insurance.

      Appeal from the Circuit Court of La Salle county; the Hon. Edgae Eldbedge, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    R. D. Mills and E. C. Swift, for appellants.
    James J. Conway, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number,

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

Daniel J. O’Connor made his application on February 10, 1902, to The Modern Woodmen for a benefit certificate in the sum of two thousand dollars and named in the application as his beneficiary Mary O’Connor, appellee, his stepmother and dependent. The benefit certificate was issued to him on February 26, 1902, according to the application. The statute under which the Modem Woodmen of America was organized recognizes a dependent as one class of persons to whom the payment of benefits were permitted at the date of the application and such class has continued one of the classes recognized by the statute at all times since the date of said application. The bylaws of the Modern Woodmen at all times have recognized dependents as a class to whom benefits could be paid.

Daniel J. O’Connor died September 29, 1909, and due proofs of his death were made. Mary O’Connor, the beneficiary named in said certificate, and Thomas O’Connor (a son of Daniel J. O’Connor, born after the benefit certificate was issued), through his guardian, each claimed the fund. The Modern Woodmen of America under the circumstances filed its bill of interpleader making Mary O’Connor and the child, Thomas O’Connor, defendants, and praying in the usual form that they each be required to show their respective claims to the fund. A trial was had before the court and a decree was entered finding that Mary O’Connor was entitled to the fund and directing its payment to her. An appeal was taken by said guardian of said minor son to this court, and it is assigned as error of the trial court, (1) permitting an incompetent witness to testify for Mary O’Connor; (2) admitting incompetent evidence on behalf of Mary O’Connor; other errors all of which raise questions of fact only.

This court held in Farrenkoph v. Holm, 142 Ill. App. 336, that the beneficiary named in a similar benefit certificate was a competent witness; that the fund was never a part of the decedent’s estate and would not pass by descent; and that any claim of those who would otherwise stand in the relationship of heirs at law would arise by contract under the laws of the order which placed them in the list of those who would take if the beneficiary in the certificate should fail.

We think Mary O’Connor was a competent witness. It is next urged there was error in permitting witnesses for Mary O’Connor to testify to statements made by decedent in his lifetime. Both sides to this controversy agree that in trials before the court if there is competent evidence enough in the record to sustain a decree then the admission of incompetent evidence would not reverse. The cases cited by appellant in his brief (Hogan v. Wallace, 63 Ill. App. 385; Brownfield v. Wilson, 78 Ill. 467; Towne v. Towne, 191 Ill. 478; Hogan v. Wallace, 166 Ill. 328) do not seem to be in point to sustain the position taken by counsel on this question.

We have left out of consideration, however, every statement testified to as having been made by decedent that was objected to,, and have considered only evidence that shows facts as to whether or not Mary-O’Connor in fact was a dependent. It will be borne in mind that the witness Daniel Halloran testified, without any objection being made, that he roomed with decedent while he was working at Moline; that pretty near twice a month every month he was there he -saw decedent inclose a ten dollar bill to his stepmother and heard him say that he (decedent) had promised Ms father on his deathbed that he would take care of Ms mother and provide for his little brothers and sisters, and that he belonged to the Modern Woodmen of America; that he had a policy in that order, and that a short time after he was married Ms mother had sent him the policy and wanted to give it to him and his wife, and that he sent it right back and told his mother that after awhile he would get some other insurance for the benefit of his wife. Halloran testified to the fact of decedent sending money to Mary O’Con-nor as well as to what he heard decedent say about his support of his stepmother and the taking out of insurance for her, and if the latter be disregarded, still the testimony of the fact remains. Mary O’Con-nor, whom we regard as a competent witness under the authority above cited testified that she was married to Daniel J. O’Connor’s father in 1891; then went to Chicago to live with him; that when they went to Chicago the family consisted of herself and husband and two stepchildren of whom Daniel J. O’Connor was one; that while in Chicago two children were born to her; that she resided in Chicago about four and one-half years and then her husband went to Minneapolis to work and she went to her father’s near Chatsworth, where she remained from July until the latter part of October; that Daniel J. O’Connor was with her; that they then removed to Ottawa where three more children were born to her of the marriage; that her husband left a policy of two thousand dollars in the Modern Woodmen at Ms death and no other property; that with the proceeds of the policy she bought a home, putting into it about one thousand two hundred dollars; that she expended about four hundred of the money in the payment of debts and that there was none of it left at the time of Daniel J. O’Connor’s marriage; that Daniel J. O’Connor worked previous to his marriage and always gave his wages to her; that he continued to live with her at her home after the death of Ms father up to a time shortly before his marriage when he went from her home to Mrs. Harrington’s on account of diphtheria, where he remained a short time and then got married; that no one contributed to her support up to that time except Daniel J. O’Connor and what little she could make herself at washing; that after Daniel J. O’Connor married he contributed two dollars a week to her support; that he used to'come to the house and give it to her; that subsequently his wife got a divorce from him and after the divorce he contributed ten dollars every two weeks to her support until about the time of his death; that he was buried from her house; that she paid the assessments on the benefit certificate; that she became indebted for certain funeral expenses for decedent and has not been able to pay them.

Thomas O’Connor, a son of Mary O’Connor, testified that right after Daniel J. O’Connor gut married he, Thomas, started to work at three dollars a week and worked about nine months out of the year; that he then worked in the glass house part of the time for three dollars a week; then earned seventy-five cents a day; then one dollar a day (covering a period of about four years by his testimony), and that he is now working for the “Q” railroad earning seventy dollars a month; that he knows Daniel J. O’Connor contributed to his mother’s support before he was married and used to bring his mother his money; that he knows of his sending her two dollars a week after his marriage; that he saw him pay her and that he himself brought home money to her on two occasions; that he had seen his mother get letters with money in and take money out and go and pay for meat and groceries and other bills; that Mary O’Connor’s father did not help her financially; that he did not have any means to do so. On cross-examination this witness said his mother was destitute and dependent at the time she got the money from Daniel J. O’Connor; that he has seen Daniel J. O’Connor pay his mother money fifty or sixty times.

Daniel J. O’Connor, a brother-in-law of Mary O’Con-nor testified that he was a brother-in-law of Mary O’Connor; that he knew when she married his brother; that the decedent went to Chicago and lived with them; that they remained in Chicago about four years; then her husband went to Minneapolis about four or five months and Mary 0 ’Connor went to Chatsworth at her father’s and that decedent was with her there; then removed to Ottawa and decedent went with them and lived with them until her husband’s death in 1901, and that decedent lived with her after her husband’s death until about the time he married; that he left shortly before his marriage on account of diphtheria in Mary O’Connor’s family; that after he married he lived a few days with his wife and then separated a few days; that he and his wife sort of spasmodically lived together and that this continued about one and one-half years; that after he and his wife separated he went to Mary O’Connor’s to live and that was in 1907, and that Daniel J. 0 ’Connor was buried from the house of Mary O’Connor beside his father.

No evidence was offered at all in opposition to the evidence tending to show that Mary 0 ’Connor was dependent on Daniel J. O’Connor. We are of the opinion that Mary O’Connor was more or less dependent on Daniel J. O’Connor for her support up to the time of his death and that they were both members of the same family. If she was partially dependent even though not related to him she comes within the class mentioned in the statute and the by-laws of the insurance company. Alexander v. Parker, 144 Ill. 355; Martin v. Modern Woodmen of America, 111 Ill. App. 99.

The Supreme Court in Royal League v. Shields, 251 Ill. 250, has said that “a state of dependency may exist even though no legal or moral duty rests upon the member to give aid to the dependent. * * * While no definition of dependency can be given that will include every case and each case must be decided according to its particular merits, the word ‘dependent,’ as that term is used with reference to these fratemal benefit associations, is in some sense, at least, used as similar to the dependence which usually obtains in the family relation.”

The question of dependency being purely one of fact, we are of the opinion that the competent evidence clearly establishes the dependence of Mary O’Connor, named in the benefit certificate. - Judgment affirmed.

Affirmed.


text:
    Philip Buescher, Plaintiff in Error, v. Illinois Valley Railway Company, Defendant in Error.
    Gen. No. 5,818.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Railroads, § 594

      —when instruction as to contributory negligence is erroneous. Instructions directing a finding for defendant, if a person of ordinary prudence exercising ordinary care would not have attempted to get upon a railroad car, held erroneous as ignoring negligence of defendant in starting the car with a sudden jerk when plaintiff was partially on such car.

      Error to the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action by Philip Buescher against Illinois Valley Railway Company for damages for personal injuries. From a judgment for defendant, plaintiff brings error.
    Gleim & Colwell and Butters & Armstrong, for plaintiff in error.
    Duncan, Doyle & O’Conor, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

2. Railroads, § 593*—when instruction as to duty of railroad is erroneous. An instruction that a defendant railroad was not required to assume that a plaintiff was going to hoard a car while it was in motion and that it was not required to stop its car lest he might attempt to do so, held erroneous in view of evidence of case.

3. Instructions, § 130*—when instructions are erroneous as ignoring material facts. In an action for injuries sustained while attempting to board a railway car, instructions which select a single circumstance or point and say that that alone would not entitle plaintiff to recover, or that alone would not be negligence or that it does not matter what the fact is in regard thereto, are erroneous.

4. Carriers, § 424*—when instructions are erroneous. Where a person was injured while attempting to board a railway car, instructions stating that it did not matter what the condition of the brake was on the car or how far the car ran after the accident were erroneous, since such facts were material on the issue of negligence in boarding the car.

5. Instructions, § 7*—when errors toarrant reversal. Where the evidence is conflicting, incorrect instructions may warrant reversal.


author: Mr. Justice Carnes

text:
    Leslie P. Voorhees, Appellant, v. Hannah E. Mason, Executrix, et al., Appellees.
    Gen. No. 5,638.
    1. Appeal and ebbob, § 1819

      —what is required of trial court on remand. Where a case was reversed and remanded with specific directions to take an account between certain directors and a corporation and to charge each of such directors the full value of stock issued and income certificates and dividends received, and where the record showed such values, nothing was required in the trial court but to make a computation and enter a decree accordingly.
    2. Appeal and error, § 1788*—what is effect of reversal of Appellate Court. Where a judgment of the Appellate Court reversing and remanding a cause and containing “specific” directions as to an accounting was reversed by the Supreme Court, but such Supreme Court viewed the directions of the Appellate Court as to the accounting as correct and proper, such question was finally determined, and it was immaterial that the directions of the Supreme Court were not specific.
    3. Coepokations, § 264

      —what acts of directors may he ratified. Where a decision of the Appellate Court holding that “the acts of directors in illegally voting stock to themselves could not be ratified by a majority of the stockholders as against a dissenting stockholder or one who had no knowledge of such fraudulent action” was reversed, but the Supreme Court did not pass on that question, and "nothing in its opinion denied the proposition, the Appellate Court was justified in adhering to such statement.
    4. Cobpobations, § 283*—what compensation may he allowed directors. Where a case was reversed and remanded with directions for an accounting, the Supreme Court holding that certain directors of a corporation were not entitled to compensation for services shown in issuing void stock, such decision would not prevent such directors from setting up in an amended answer any services performed before the commencement of suit, outside of their duties as directors, other than those passed on by the Supreme Court, and have such services considered by way of counterclaim in the accounting.
    5. Set-oee and becotjpment, § 5*—when counterclaim may he allowed. In suits at law the rights of parties must be determined as they existed at the time suit was commenced, while in equity counterclaims arising after suit is brought are sometimes permitted where equitable reasons are shown, but in the absence of such reasons equity follows the law.
    Appeal from the Circuit Court of Will county; the Hon. Chaeles B. Campbell, Judge, presiding. Heard in this court at the April term, 1913.
    Reversed and remanded with directions.
    Opinion filed August 2, 1913.
    George F. Borman, for appellant.
    J. L. O’Donnell, Benj. Olin and John H. Garnsey, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Leslie P. Voorhees, appellant, filed a bill in equity against the Joliet Tropical Plantation Company and T. A. Mason, J. 0. Barrett, George B. Carey, J. F. Skeel, J. J. Allison and C. E. Antram, six of the seven directors of said corporation, in behalf of himself and such other stockholders as might choose to join therein to require said directors to account to the corporation for the full value of certain of its stock and income certificates, which by their own vote, it was alleged, they had wrongfully issued to themselves individually on payment to the corporation of one-half the value thereof and for dividends they had drawn thereon, and also to account for certain commissions they were charged with wrongfully taking on sales made by them of other stock and certificates of the corporation.

The case was heard in the trial court on issues joined and proofs. The taking of the stock, certificates and commissions by the defendant directors was admitted, but it was sought to justify the same by allegations and proof of services performed by them, outside of their duties as officers of the corporation, at least equal in value to such corporate property received by them; and also, to estop the complainant from asserting the claim of the bill on the ground that such action of the defendant directors was not fraudulent, had been asserted to and ratified by the stockholders of the corporation, and that the complainant was guilty of laches in filing the bill. The chancellor entered a decree dismissing the bill for want of equity.

The complainant appealed to this court where the case was reversed and remanded with specific directions to take an account between said directors and the corporation and to charge each of said directors the full value of said stock and income certificates, and dividends thereon received by him. The record showed such values, therefore there was nothing required in the trial court but to make a computation and enter a decree accordingly. The complainant was held not entitled to an accounting regarding said item of commission, and the decree directed in effect required the defendant directors to account to the complainant for his pro rata share of the amount found due, instead of accounting to the corporation for the full amount, this court then proceeding on the theory that under the authority of Brown v. DeYoung, 167 Ill. 549, no other stockholder having joined with the complainant in demanding relief, equity only required that the defendants should reimburse him, what he had indirectly lost as a stockholder of the corporation. Our opinion is reported under the title of Voorhees v. Mason, 148 Ill. App. 647.

Complainant Voorhees removed the case to the Supreme Court on writ of error where it was heard and its opinion reported under the same title in 245 Ill. 256. That court held we did not err in requiring the directors to account for the full value of said stock and income certificates and dividends received on the same; but did err in refusing an accounting as to said commissions, which it held should be treated as received by said defendants without authority, but that their services in that regard were outside of their duties as directors and they should on an accounting be allowed to retain of the moneys so received as commissions such an amount as the proofs might show their services in said sales of stock and income certificates were reasonably worth, but should not be allowed more than the amount they had received and retained on account of said commissions. That court also held that we erred in only requiring the defendant directors to pay to the complainant his pro rata share as stockholder, found to be due the corporation by said directors, and said the decree should provide that they be required to account to the corporation and to pay over to the corporation the amount which they owe the corporation, and that the rule announced in Chicago Macaroni Mfg. Co. v. Boggiano, 202 Ill. 312, should be applied rather than the rule announced in Brown v. DeYoung, supra. The decree of the Circuit Court and the judgment of the Appellate Court was reversed and the cause remanded to the Circuit Court for further proceedings in accordance with the views expressed in the opinion.

The case was reinstated in the Circuit Court and the defendant, Truman A. Mason, having died pending the litigation his executrix, Hannah E. Mason, was substituted in his stead and it became the duty of the chancellor to proceed in accordance with the views expressed in the opinion of the Supreme Court. As the pleadings then stood nothing remained to be done but to make a computation of the amount of said stock and income certificates which the defendant directors had issued to themselves at fifty cents on the dollar and charge them with the full value thereof, i. e., the half unpaid, and of the amount of dividends they had received thereon and charge them on the same basis. The record already showed both by pleadings and proof the amount of these items. Then there was required an accounting as to what their services were reasonably worth in the matter of said commissions, and that being ascertained to charge them with what they had received on that account, if anything, more than said services were reasonably worth, but if such services were reasonably worth more than the amount they had received on that account to disregard that item and charge them with the amount shown by the computation to have been received on the stock, income certificate and dividend account.

It is true as claimed by appellees that the direction of the Supreme Court was not what is termed “specific” and the directors of the Appellate Court was specific, and the judgment of the Appellate Court was reversed and its directions set aside and not to be considered except in so far as incorporated in the views of the Supreme Court, but the Supreme Court viewed the direction of this court to account-for the full value of the stock and income certificates and dividends thereon as correct and proper and therefore that question was and is finally determined, not because it was a direction of this court but because it is a view of the Supreme Court.

Also there could arise no further question that the liability of the defendant directors is based on a breach of trust that neither a majority of the directors nor of the stockholders could ratify or condone. On no other ground could complainant be permitted to maintain this action. Cook on Corporations (6th Ed.) vol. 2, secs. 646, 647. In our former opinion, a question of ratification by the stockholders was considered and we said: “The acts of the directors in illegally voting stock to themselves could not be ratified by a majority of the stockholders as against a dissenting stockholder or one who had no knowledge of such fraudulent action.” [148 Ill. App. 655.] The Supreme Court did not expressly pass on that question but nothing in its opinion in any way denies that proposition, and we are therefore justified in adhering to that statement.

After the case was reinstated in the Circuit Court there was another annual meeting of the stockholders of said corporation, at which a quorum was present, without counting any stock ever issued to said defendant directors, and at which the stockholders representing such quorum passed a resolution, by a vote of five hundred and forty against seventeen shares of stock, reciting the action of the defendant directors in purchasing said stock and income certificates and receiving commissions in question, and that the consideration therefor was services performed and to be performed by them as individuals, and that their action in that respect had been confirmed at a stockholders’ meeting in September, 1905, before this suit was brought; that said directors had performed as individuals, outside of their duty as directors, such services of great value to the corporation since, as well as before, the beginning of the suit and had been compensated therefor only by the purchase of said stock and certificates and in receiving said commissions; therefore that said stockholders waived and released the right of said corporation, and the right of themselves individually, to a further accounting for said stock and income certificates and commissions and ratified and confirmed all acts of said directors in the premises.

The defendant directors filed a cross-bill setting out this resolution of the stockholders, averring that the complainant Voorhees was present in person at said meeting; that said corporation is solvent and the matters in said resolution concern only the stockholders; that the defendant directors as individuals, and outside of their duties as directors, had performed valuable services for the corporation since the beginning of the suit; that such services had been rendered the corporation by said directors with the understanding and agreement that said directors should be and were compensated in that, and in no other way, and that in case of an accounting said directors ought to be allowed the value of said services as a counterclaim or set-off; and said cross-bill prays in the alternative that said original bill be dismissed, or if an accounting be required then that the value of said services may be allowed as a counterclaim and for other relief.

The corporation answered admitting the allegations of the cross-bill and disclaiming any right to an accounting. Appellant Voorhees filed a demurrer alleging as causes of demurrer that the cross-bill seeks to relitigate what has been finally adjudicated and settled by the judgments of the Appellate and Supreme Courts in said original suit; that it does not state a case entitling any of them to relief in a court of equity, and that the matters and things alleged are not germane to the matters set forth in the amended bill. The court overruled the demurrer, and, appellant Voorhees electing to stand by his demurrer, entered a decree dismissing the original bill, from which appellant prayed this appeal, assigning as errors the overruling of the demurrer, the dismissing of the original bill and not entering a decree for an accounting in accordance with the opinion of the Supreme Court.

We are of the opinion that the action of the stockholders, after the cause was remanded, in attempting to release the claim of the corporation as set up in the cross-bill was of no force or effect, for the reason before stated, and also for the further reason that as to the alleged action of the stockholders’ meeting before the suit was brought it was set up and considered in the trial on the original bill and by this court held of no effect, and while the Supreme Court did not specifically mention the matter in its opinion, if it had not concurred with this court in its views of that transaction it must necessarily have reached a different conclusion from that announced by it. Therefore the trial court erred in dismissing the original bill. Whether the demurrer should have been overruled and the cross-bill retained for the purpose of enabling defendants to avail themselves of any legal counterclaims they might have against the corporation, is the remaining question. The matter of the taking of this stock and income certificates by the defendant directors and their reasons for taking it, and the services and assistance rendered and to be rendered by them in consideration of taking it, was before the court on the trial on the original bill, and the Supreme Court in considering the case speaking of that transaction said: “They had no valid claim against the corporation for services rendered to the corporation which they could enforce against the corporation or against its stockholders.” [245 Ill. 262.] Therefore the cross-bill was bad in so far as it again set up any of those services or other services of the same kind and character. While the Supreme Court held that the allowance of commissions to the directors was void and of no effect it further held that they were entitled to compensation for services rendered in that regard and directed an inquiry as to such compensation; and while it did not find any reason for allowing compensation for services shown in the matter of the void issue of the stock and income certificates we see nothing in the views expressed by that court to prevent appellees from setting up in an amended answer any services performed by them for the corporation, before the commencement of this suit, outside of their duties as directors, other than those already presented to and passed on by the Supreme Court and those of a kind and character that would therefore fall under the same rule, and have such services considered by way of counterclaim in the accounting.

It is urged by appellant that the defendant directors can only present counterclaims arising on services performed since the suit was brought by way of cross-bill, that they cannot on an accounting avail themselves of such claims by amending their answer, and therefore that the cross-bill was good on general demurrer because it set up services performed since the suit was commenced for which the defendants were entitled to compensation. The services alleged in the cross-bill seem, at least for the most part, of the same kind and character as those performed before the suit was brought, and compensation denied by the Supreme Court. This of itself may be a sufficient answer to the contention that the cross-bill should be retained for the purpose of presenting by way of counterclaim services performed since the suit was brought. Aside from this, however, parties to a suit in equity are not permitted as matter of course to delay the termination of the suit by presenting from time to time during its progress claims against the complainant acquired after the beginning of the suit. In this case for instance, if it were true that the defendants were month by month performing services for the corporation for which they were entitled to compensation, they could not delay the termination of this suit by repeatedly filing cross-bills presenting counterclaims for such services. In suits at law the rights of the parties must be determined as they existed at the time the suit was commenced. Pettis v. Westlake, 4 Ill. (3 Scam.) 535; JBrass v. Green, 113 Ill. App. 58. In suits in equity counterclaims arising after suit is brought are sometimes permitted where equitable reasons are shown, such as the insolvency of the complainant, but in the absence of such reasons equity follows the law. Smith v. Billings, 170 Ill. 543. In this case it is expressly averred in the cross-bill that the corporation is solvent, and if the defendants have any valid counterclaims arising since the beginning of this suit we see no injustice in requiring them to make such claims the subject of an independent action.

The case is reversed and remanded with directions to the Circuit Court to sustain the demurrer to the cross-bill and proceed in accordance with the views expressed in this opinion.

Reversed and remanded with directions.


text:
    Carl Muenter, Appellee, v. Moline Plow Company, Appellant.
    Gen. No. 5,721.
    1. Master and servant, § 166

      —what essential to charge master with liability for defects in machinery. In an action by servant for injuries resulting from defective machinery, master is not liable unless he had actual or constructive knowledge of the defect and a reasonable time to repair after he is charged with such knowledge.
    2. Masteé and servant, § 784*—when instructions erroneous as ignoring reasonable time to repair. Instructions ignoring the law of reasonable time to repair, held improper where theory of the case is that master had notice of defect in machinery when it was overhauled prior to the accident.
    3. Master and servant, § 654*—when conduct of other employes inadmissible. Evidence that certain other workmen usually performed their work in the same manner that plaintiff did, held inadmissible.

      4. Master and servant, § 625

      —when opinions as method of work, inadmissible. Opinions of witnesses, however expert, on question of the relative safety of two ways of performing work, inadmissible when such matter is within the easy comprehension of the jury.
    5. Master and servant, § 182*—when rule of master is abrogated by habitual violation. Rule of employer may be abrogated by habitual violation with his knowledge, and his knowledge may be presumed when the violation continues for some time.
    Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest, Judge, presiding. Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed August 2, 1913.
    Searle & Marshall; for appellant.
    Andrew Olson and J. T. & S. R. Kenworthy, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Carl Muenter, appellee, had the fingers of his right hand crushed while working for appellant, Moline Plow Company, at a drop hammer machine, October 11, 1906. This action is brought to recover for that injury, and resulted in the court below in a verdict and judgment for $5,654.46, from which this appeal is prosecuted. The machine consisted of an anvil with a hammer weighing about six hundred pounds suspended eighteen or twenty inches above the plate of the anvil; a pedal near the floor was used-to release the hammer, which then fell to the anvil and raised to its first position where it was held by a “stopper” located about twelve feet above and concealed, or partially concealed from the operator when standing on the floor. The negligence alleged is in permitting this stopper to get out of repair so that it would not hold the hammer and the machine would “repeat.”

Appellee at the time of the injury was fifty years old, had worked for appellant several years, and had been working on this machine about ten months next before the injury. He was engaged in shaping small castings, which he took from the furnace with tongs held in his hand, thrusting the pieces of hot metal over the plate of the anvil, hammering them into desired shapes by blows from the hammer operated by the pedal, then putting them into a cart placed by him near by. There were two positions in which he might place this cart, in one of which after shaping the metal he drew it toward him and dropped it into the cart, in the other he thrust the metal forward to toss it into the cart. In the last position his hand would pass near the space between the suspended hammer and the anvil and not between the two, if he was careful to avoid it. There was obvious danger in thrusting the metal forward to the cart that the operator, through inattention, might get his hand between the anvil and suspended hammer, and through some defect in the machine, or by his own inadvertence in touching the pedal, the hammer might fall and crush his hand. The injury /in question probably happened in that way; there was no witness other than appellee who saw it, and he is unable to tell how it occurred but says positively he did not touch the pedal. There was no danger in the other mode of operation. Sharply controverted questions in the case were, whether in the exercise of ordinary care, appellee should not have chosen the safe position; and whether he had received imperative orders from his superior officers not to do the work in the unsafe way. In other words, whether appellee was negligent, and whether he was violating orders, in doing the work in that manner at the time of the injury. There was also much conflict in the evidence as to the condition of the machine before the accident. It had been overhauled in August of that year and left by the machinist doing the work in what was regarded proper working condition; it had before the accident repeated three times in the ten months that appellee had used it, probably none of those times after it was so overhauled, and it was much used during those five or six weeks. But there was some evidence tending to show a worn and bent condition of some of the stopping appliances at the time of the repair in August, that ought, in the exercise of reasonable care, to have been then remedied, or if not, greater care exercised by appellant to see that it did not, by use and wear, become unsafe. It was appellee’s duty to take care of the machine. He oiled the stopper appliances twice a day and saw, or might have seen, such defects as he now claims existed, but he was not a skilled machinist, and the defects were of such character, if they existed at all, as might leave a question for the jury whether in the exercise of ordinary care he would have discovered them and known of the danger, and whether in the exercise of ordinary carp appellant should have reasonably relied on appellee to detect and report any change in the condition that would make the machine dangerous.

There was sufficient evidence tending to prove the material allegations to compel the submission of the case to the jury; but taking the most favorable view for appellant of the evidence it was very close on the material controverted questions, and as we feel compelled to reverse and remand the case, we express no further opinion as to its weight.

Evidence was admitted for appellee, over the objection of appellant, that certain other workmen there employed before the time of the injury usually placed their cart in the position in which appellee’s cart was placed at the time of the injury. This testimony might impress the jury as showing appellee was not negligent in placing the cart in that position because other workmen did so, and might also be taken by them as showing that appellee was justified in disobeying instructions not to place his cart'in that position and do Ms work in that way, even if there was an express order to that effect, because the order was not observed by other workmen. A rule of the employer may be abrogated by habitual violation with his knowledge, and that knowledge may be presumed if the violation continues for some time. Hampton v. Chicago & A. R. Co., 236 Ill. 249; Chicago & W. 1. R. Co. v. Flynn, 154 Ill. 448; Campbell v. Chicago, R. I. & P. Ry. Co., 149 Ill. App. 120; 26 Cyc. 1161. The existence of a custom is often material in consideration of questions of negligence (Chicago City Ry. Co. v. Lowitz, 218 Ill. 24;) but it is not competent to show that some other one servant, engaged in the same business, violated a rule or did his work in a negligent manner (Chicago & A. R. Co. v. Bragonier, 119 Ill. 51), or did his work in a given manner, when the question for determination is, whether it was negligence to so perform the work? Appellant in the introduction of its testimony repeatedly offered evidence of customs prevailing in the shop within.the knowledge of appellee at and before the time of the injury, and objections to such evidence were repeatedly sustained. Appellee was allowed great latitude in his evidence of what other workmen did and appellant was much restricted in its evidence of the same character. ,

Appellant’s foreman, G-ranquist, was temporarily sick and confined to his house at the time of the trial ; a continuance was asked for that reason and affidavit filed, setting out facts expected to be proved, by him. Appellee elected to proceed to trial admitting that the absent witness would swear to such of the statements as the court might hold competent. The court excluded many of them as incompetent and immaterial, among them that he, Granquist, heard the assistant superintendént a few days before plaintiff was injured caution plaintiff from getting his hand under said drop under any circumstances without a block or a prop thereunder to prevent it falling on him; another that all the time plaintiff worked in the shop it was .the continuous, universal practice and custom for the operators of said machine, including plaintiff, to look after and watch the working of their respective machines, keep the parts tightened up, and if out of repair, that they could not themselves repair, to report the condition to the foreman of the machinist department and have the same put in repair by defendant. We see no reason why these statements were not competent and material evidence. There were other statements in the affidavit excluded that might have been admitted without violating any rule of evidence, but as the affidavit will not be before the court on another trial we will not further discuss them. Our attention is called to the rulings of the court excluding evidence of opinions of witnesses as to the safe and proper manner of doing the work in question. It is a general rule that opinions of witnesses are inadmissible as evidence and that they are to testify to facts, leaving the jury to form the opinions. The exception to this rule is in cases where the subject-matter of the investigation is unfamiliar to the jury, when experts may be permitted to testify to opinions on certain questions involved. We do not regard it error for the court to exclude, as he did, opinions of witnesses however expert, on the question of the relative safety of the two ways of placing the cart, that was a matter within the easy comprehension of the jury. There were other questions concerning the operation of the stopper that might not have been understood by the average layman, and therefore might call for expert evidence, perhaps involving the opinion of the expert testifying. A reference to Kelly-ville Coal Co. v. Strine, 217 Ill. 516, and authorities there cited, will indicate the recognized rule without extending this opinion by pointing out the questions in detail.

Complaint is made of the action of the court in giving and refusing instructions. Taken as a whole, the instructions are not unduly favorable to appellee; but they are open to the criticism of ignoring the law of reasonable time to repair, in other words, the law that the master is not liable for a defect in machinery unless he has actual knowledge or constructive knowledge of it, and a reasonable time to repair after he is charged with knowledge. Appellee’s counsel say that the defect if any existed in August, that the master is charged with actual knowledge of it because the machine was then overhauled by its servant, therefore there is no question of a reasonable time to repair. They are in error. There was a question for the jury whether the machine was in reasonable repair after it was overhauled in August, and became defective, if at all, shortly before the injury; the fact that it worked perfectly from the time it was overhauled until the time of the injury supports this hypothesis; and on that theory of the case it was material, if the master was charged with notice at all, whether it was a sufficient time before the accident to enable it in the exercise of reasonable care to repair before the time of the injury. Therefore the law of reasonable time for repair could not be ignored in instructions to the jury.

For the errors indicated the case is reversed and remanded.

Reversed cmd remanded.


text:
    Theodore H. Decker, Appellee, v. William F. Cochran et al., Appellants.
    Gen. No. 5,743.
    (Not to be reported in full.)
    Appeal from the Circuit Court oí Lake county; the Hon. Charles Whitney, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.

      Abstract of the Decision. .
    1. Mechanics’ liens, § 195

      —when modified contract admissible. Contract modified after signing by the mutual consent of the parties and treated as so modified as a written contract, held properly admitted in evidence.
    2. Mechanics’ liens, § 212*—when evidence sufficient to sustain finding of compliance with contract. Finding of master that a heating plant furnished fulfilled the purpose specified in the contract in heating the house, held sustained by the evidence.
    Statement of the Case.
    Bill filed by Theodore H. Decker against William F. Cochran and others to enforce a mechanics’ lien for unpaid balance of contract price for a heating-plant installed in the house of defendants by complainant. From a decree in favor of complainant for. $242.50, defendant appeals.
    John D. Hood, for appellants.
    Martin C. Decker and Elam L. Clarke, for appellee.

      See Illinois Notes Digest, Voto. XI to XIV, same topic and section number-

   Mr. Justice Carnes

delivered the opinion of the court.


author: Mr. Justice Carnes •

text:
    O. A. Lundquist, Plaintiff in Error, v. A. P. Child, Defendant in Error.
    Gen. No. 5,755.
    (Not to be reported in full.)
    Error to the Circuit Court of Putnam county; the Hon. Theodobe N. Gbeen, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.

      Abstract of the Decision.
    1. Auctions, § 8

      —when declaration in action for amount hid is demurrable. In an action for purchase money of lands sold at auction, a declaration containing no averment of auctioneer’s written authority to make the sale and declaring on a contract not complete in that no time for payment is fixed, held subject to demurrer.
    2. Auctions, § 8*—sufficiency of declaration. Declaration in an action for amount bid for land at an auction sale setting out a written memorandum of the sale which is insufficiently definite to locate the property by parol evidence, and varies from the contract sued on, is bad.
    3. Auctions, § 8*—when attached copy of advertisement of sale, no part of declaration. In an action for amount bid at an auction sale, a copy of the advertisement of the sale attached to the declaration as a “copy of account” is no part of the declaration so as to show the terms of sale.
    4. Feauds, statute of, § 123*—when defense may he raised hy general demurrer. Advantage may be taken of the statute of frauds by general demurrer where it appears from the face of the declaration that the agreement sued on is within the statute and fails to comply with the requirements thereof.
    5. Feauds, statute of, § 56*—when authority of auctioneér to sell land must he in writing. Since Act of 1869 (see J. & A. If 5868), authority of an auctioneer to sell land must be in writing signed by the party to be charged.
    Statement of the Case.
    Action by 0. A. Lundquist against A. P. Child to recover the balance due on amount bid by defendant for certain real estate at an auction sale. Prom a judgment entered against plaintiff, upon trial court sustaining a demurrer to the declaration, plaintiff brings error.
    George W. Hunt and Butters & Armstrong, for plaintiff in error.
    Barnes & Magoon, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Carnes •

delivered the opinion of the court.


text:
    Catherine Gordon, Appellant, v. Mary E. Baker, Appellee.
    Gen. No. 5,759.
    1. Divorce, § 114

      —when payment of alimony is terminated. The remarriage of a.divorced wife does not ipso facto dissolve the obligation to pay alimony but it is a reason for absolving husband from the burdens imposed by the decree.
    2. Divorce, § 107*—when alimony may he changed. Past due alimony is a vested right and cannot be changed by a subsequent order of the court.
    3. Equity, § 76*—when suit is harred hy laches. Bill to subject certain lands to the payment of a decree for alimony rendered more than thirty years before the bill was "filed, held, barred by laches, especially since the divorced wife had made no attempt to collect the alimony and both parties had remarried.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbauqh, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Rehearing denied October 9, 1913.
    Sheen & Galbraith, for appellant.
    W. T. Whiting, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

This is a bill filed by Catherine Gordon, appellant, to subject certain lands, to which appellee, Mary E. Baker, had the record title, to the payment of a decree for alimony she obtained against Stephen B. Baker in January, 1879, more than thirty years before the. bill was filed.

Issues were joined, the cause submitted to the master who heard the proofs and reported adversely to appellant’s claim, objections and exceptions were heard and decree entered in accordance with the master’s report dismissing the bill for want of equity, from which this appeal is prosecuted. It appears from the pleadings and proofs that appellant was divorced from her then husband, Stephen B. Baker, in January, 1879; that the decree of divorce gave her the custody, control and education of their minor child, Boy Baker, then about six years old, and fifty-two dollars a year permanent alimony, payable quarterly in advance until the further order of the court; that she never in fact took care of the child but it remained with the father; no execution ever issued on said decree and she never received or made any attempt to collect the alimony until the commencement of this suit; that about three years after her divorce she married one Coolidge and lived with him about eighteen months when they were divorced, and in September, 1885, she married her present husband, John T. Gordon, and has lived with and been supported by him ever since.

Stephen B. Baker married appellee September 7th, 1880, and removed with her from the State of Illinois to the State of Iowa in 1886, where they resided until his death September 30, 1911. November 19, 1889, Stephen B. Baker acquired by inheritance the interest in land in Peoria county in question, and on March 4, 1901, he executed a quitclaim deed of the same to appellee, his then wife, which deed was then placed of record. A partition proceeding was begun in May, 1901, involving title to this land and was pending about two years, in which appellant was party, but did not seek to enforce her decree, and the bill seems to have been dismissed without any positive action taken. After the bill herein was filed the land was sold in a partition proceeding and a part of the proceeds held in the hands of the master in chancery awaiting the result of this suit.

The controlling question is whether appellant at the time of filing her bill had any rights under her decree for alimony that she could ask a court of equity to aid her in enforcing.

It is not claimed that the decree for alimony is, or ever was, a lien on the land in question, no execution ever issued thereon, Stephen B. Baker had no title to the land until 1889. (R. S. eh. 77, sec. 1, J. & A. ft 6747.) No question is raised as to the practice in attempting to reach this fund in this way. The main questions argued are of the power of a court of equity to modify or set aside a decree for alimony, and of the doctrine of laches. It is claimed by appellant she did not by her remarriage lose her right to enforce payment of alimony either before or after the event, and it is true that fact did not of itself have that effect. The remarriage of a divorced wife does not ipso facto dissolve the obligation to pay alimony but it is a reason for absolving a husband from the burdens imposed by the decree. Stillman v. Stillman, 99 Ill. 196.

“The divorced wife abandons the provision made for her support out of the estate of her former husband by the decree of the court, for that adequate support which she contracts for by the subsequent marriage. ’ ’ Id. Past due alimony is a vested right and cannot be changed by a subsequent order of the court. Cole v. Cole, 142 Ill. 19; Craig v. Craig, 163 Ill. 176.

“A defense peculiar to courts of equity, is that founded upon the mere, lapse of time, and the staleness of the claim in cases where no statute of limitation directly governs the case. In such cases, courts of equity act sometimes by analogy to the law, and sometimes act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, by refusing to interfere where there has been gross laches in prosecuting rights, or long and unreasonable acquiescence in the assertion of adverse rights.” Carpenter v. Carpenter, 70 Ill. 457.

“When a court of equity is asked to lend its aid in the enforcement of a demand that has become stale, there must be some cogent and weighty reasons presented why it has been permitted to become so.” McDearmon v. Burnham, 158 Ill. 55.

It is apparent that the provision for alimony was made with a view only of support of appellant and the minor child which she was given the custody of. Ten or twelve instalments of alimony fell due before appellant remarried and more than that number after that time and before her divorced husband moved out of the State. There is a presumption of law as well as of common sense that there was a reason for not attempting to collect these instalments; appellant apparently realizing this, attempts the explanation that she was in fear of Stephen B. Baker, and that he threatened to kill her if she attempted to enforce the decree, either as to alimony or the custody of the child. This explanation rests upon her own unsupported testimony. It is true that Stephen B. Baker was a nonresident of this State for about twenty-four years before his death, and that fact arrested the running of the statute of limitation against him. But he acquired by inheritance the land in question more than twenty years before his death and therefore there was property within the jurisdiction of the courts of this State available for the satisfaction of any judgment or valid claim against him. Appellant alleges she did not know of this; but she is certainly charged with knowledge for about ten years before his death, because she was in 1901 a party to a suit, appearing by counsel, of which suit this land was the subject matter. If she had made effort to enforce her decree for alimony, at any time after her remarriage, the defendant would have been entitled to a hearing on the question whether he had paid the past due instalments, and would probably on his application have been relieved from further payment. By delaying action more than thirty years and until after the death of the party to be charged, defenses are avoided, and a court of equity is asked to enforce the payment of a decree that it would presumably have suspended, had it been ásked to do so more than twenty-five years before this suit was brought. This is not a case where the other party has presumably suffered no loss by laches of the complaining party. Stephen B. Baker was under a duty to provide for appellee, his wife who had lived with him for more than thirty years. Had "the matter been brought to the attention of a court of equity having ¡jurisdiction of the parties any time after the marriage.^ of appellant, it would not have deprived him of the ability to perform that duty by requiring him to aid in the support of the wife of another man. The facts present a strong case for the application of the doctrine of laches so often applied to defeat claims so long delayed that valid defenses are or may be precluded. The trial court did not err in applying that rule to this case.

It is argued that there was in fact no conveyance to appellee, that the deed in question was never delivered, but was executed and placed of record for the purpose of defeating the rights of appellant, and in any event was void as an attempted testamentary disposition of property. It was apparently executed in an attempt by Stephen B. Baker to provide for his wife. The record shows that he died intestate having transferred all of his other property, which was of little value, to appellee in his lifetime, and that the value of this property was about six thousand dollars. Under our view of this case appellant has no standing to question the validity of this conveyance, and we need not consider that part of the record and argument. If the deed was never delivered and the title to the property in question remained in Stephen B. Baker at the time of his death, appellant would still be entitled to no relief under her bill.

Finding no error in the record the decree of the trial court is affirmed.

Affirmed.


text:
    John Aimone, Appellee, v. Chicago, Milwaukee & St. Paul Railway Company, Appellant.
    Gen. No. 5,763.
    1. Master and servant, § 7

      —what is authority of foreman to employ physicians. Where a servant was taken suddenly sick and the foreman having supervision of such servant procured a physician, whereupon the servant was removed to a hospital, and subsequently operated upon, held, that the foreman had no authority to bind the master to pay for the physician’s services at the hospital, since there was presumably time, before operating, to communicate with the officers of the master having apparent authority to employ the physicians.
    2. Master and servant, § 7*—when foreman may procure physician to render first aid. Where a servant was taken suddenly sick and a foreman was the highest officer of the master on the ground, such foreman had authority to employ a physician to render temporary services, by way of first aid, to the sick servant.
    Appeal from the Circuit Court of Putnam county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed August 2, 1913.
    H. H. Field, C. S. Jefferson and Barnes & Magoon, for appellant.
    George W. Hunt and Butters & Armstrong, for appellee.

      See Illinois isp.tes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

May 20, 1910, Neils Hanson was with another man, in the employ of appellant, under the supervision of a •foreman named Bernhart, at Mark, Hlinois. They were loading a railroad track scale and while so doing Hanson was taken suddenly sick. He was temporarily and hastily cared for by Bernhart and others by placing him in a box car near by.

Bernhart endeavored to get the Company’s physician and failing, because of his absence, called at the office of appellee, Dr. John Aimone, and procured his assistance. Appellee made an examination of Hanson and on his advice he was taken to a hospital in Spring Valley, where appellee and three other doctors operated on him, discovering that he was suffering from a rupture of the walls of the stomach, which was occasioned by an abscess that had weakened the tissue so that the strain from lifting produced the rupture. The perforation was closed, the abdominal cavity cleaned out and sewed up, drainage put in and recovery of the patient followed. This action of assumpsit was brought by appellee to recover for medical and surgical services.so rendered. He received a verdict and judgment for one hundred and fifty dollars from which this appeal is prosecuted by the Railway Company.

There is no claim of carelessness or negligence of appellant. The labor in which Hanson was engaged was not especially hazardous; while the strain from lifting probably caused the rupture of the weakened wall of the stomach it was not a strain that would have affected a normal man. There is no claim that appellant employed appellee to perform the service in question, or authorized anything in the matter, except in so far as it may be held liable for the acts of its foreman Bernhart. The record shows him to have been foreman of what is termed a ‘ ‘ gang ’ ’ consisting of two men. There is nothing to indicate any authority or apparent authority on his part to bind appellant by any contract or agreement out of the line of his employment as a. foreman in charge of a few laborers in the yards of appellant. There is conflict in the evidence whether he did or did not attempt to authorize or direct or acquiesce in appellee’s direction that Hanson should be removed to Spring Valley to the hospital. But no officer or employe of appellant gave any direction or assumed any responsibility as to the operation, and no employe of appellant, other than Bernhart, had any knowledge of what was to be done, or what was done at the hospital, until after the operation was performed.

There is no evidence in the case showing, or tending to show, what the services of appellee rendered while Hanson was in the box car, were worth, and no evidence from which the value of appellee’s services in the whole matter can be determined; he introduced testimony as to the value of the services of the four doctors, and appellant was denied, on cross-examination of appellee as a witness, answers to questions asked for the purpose of ascertaining the value of the individual services performed by appellee and the other physicians engaged. It is apparent, however, that it was a difficult surgical operation and that appellee, who was a young man, admitted to practice in June, 1907, acted only as an assistant to one of the other doctors, who was probably an experienced surgeon and entitled to the major part of a reasonable fee for the operation.

The principal inquiry is whether there is any contract between appellee and appellant either expressed or implied. None is claimed except in so far as appellant can be held bound by the acts of its employe Bern-hart. Appellee insists on the authority of Toledo, W. & W. Ry. Co. v. Rodrigues, 47 Ill. 188; Indianapolis & St. L. R. Co. v. Morris, 67 Ill. 295; Chicago Consol. Traction Co. v. Mathews, 117 Ill. App. 174, and Chicago & A. R. Co. v. Davis, 94 Ill. App. 54, that the request of Bernhart, the foreman in charge at the time of the occurence, was sufficient to bind appellant. But in all those cases the liability of the defendant was based not on the contract of some inferior servant but on the ratification of the contract by some competent officer. It was said in the Rodrigues case, supra, that while it was a duty that would furnish a consideration for a promise to pay for medical attendance, etc., to take care of an employe rendered helpless in the employment of the master, “it is not such a duty resting on the company, that any person, without authority from the company, may render the service and compel payment. The request should be express and explicit, and from a person who is empowered to act for the company.” In that case the general superintendent was presumed to have authority to ratify the contract of a station agent and the decision was based on the act of the general superintendent in ratifying the contract. In the Morris case, supra, the Company was held liable for the services in question, not because of the contract of the conductor of the train, but because the officers of the company were notified of the services rendered and to be rendered at its expense, and it was held that it was its duty to notify the person performing the service if it did not intend to be held responsible, which it did not do. In the Mathews case, supra, it was only held that the company was liable because when the plaintiff stated the case to the superintendent and asked as to a continuation of his services the superintendent made no direct reply, and therefore the trial court was justified in finding that the employment of ■the plaintiff by a conductor was ratified and confirmed by the company. It was said in that case that the court was “inclined to the view that when one is thus hurt, and the condition of the injured party requires prompt medical attendance, and no surgeon of the company is obtainable, the representative of the company in authority at the time and place of the accident has a right to employ a physician, and thus, for the time being at least to bind the company to pay for his reasonable services.” But the court makes it clear that it does not base its decision on that ground. In Cairo & St. L. R. Co. v. Mahoney, 82 Ill. 73, there was a recovery for services rendered at the request of a station agent, but the decision was based expressly on the ground that the employment by the station agent was ratified by the conduct of the general superintendent. And in St. Louis & K. C. R. Co. v. Olive, 40 Ill. App. 82, the right of recovery from the company on the contract of the conductor was expressly denied, because there was no evidence to show a ratification of such contract. In Chicago & A. R. Co. v. Davis, 94 Ill. App. 54, it was held that where an accident happened to an employe and local surgeons of the company are not available, and the condition of the injured man requires prompt medical attention, that the representative of the company in authority at the time and place of the injury has the right to employ medical assistance, and thereby render the company liable for services. So far as we can learn, the doctrine of authority of an inferior officer in emergency cases, i. e., one in authority at the time and place of the accident, to bind his principal by contract for medical services rendered the injured in the absence of the Company’s physician rests on the dicta of the court in Chicago Consol. Traction Co. v. Mathews, supra, and the decision of the court in Chicago & A. R. Co. v. Davis, supra. In the latter case the decision is based on the authority of Toledo, W. & W. Ry. Co. v. Rodrigues, supra, and Indianapolis & St. L. R. Co. v. Morris, supra, and while the reasoning of those cases may tend to the support of such a rule, neither of them is express authority for it.

The rule is discussed and authorities reviewed in Salter v. Nebraska Tel. Co. 79 Neb. 373, 13 L. R. A. (N. S.) 545; and the conclusion is reached that under certain conditions such authority may be presumed without proof, and it is said: “This rule is one required by an emergency rather than one based on any general legal principle and that the authority of the officer with limited powers can extend no further than the emergency demands; ’ ’ and that the emergency services, unless expressly limited at the time of procuring them, ought to extend to a sufficient time for the party employed to communicate with the company, and, if it declines to be further responsible for notice to the" proper poor authorities, if the injured party is entitled to public care.” The authorities are to some extent reviewed in Bonnette v. St. Louis, I. M. & S. Ry. Co., 87 Ark. 197, and the authority of a conductor in charge of a train to employ a surgeon to attend a stranger injured in the running of the train was sustained on the ground that the emergency created the authority, the conductor being the highest agent of the company on the ground.

It is said in Story on Agency, sec. 85: “New and unexpected emergencies and necessities of such a critical nature may arise as, if one may use the expression, will expand the authority (of an agent) beyond its ordinary limits, and justify even a deviation from its ordinary limitation and import.”

And again section 141: “Extraordinary emergencies may arise in which a person who is an agent may, from the very necessity of the case, be justified in assuming extraordinary powers; and that his act fairly done under such circumstances will be binding upon its principal.”

Appellant favors us with no citation of authorities on this question of authority implied from the arising of an emergency, counsel say the question is too plain to require argument. It seems to us, from such examination of the reported cases as we have been able to make, that the law is not well settled either in this State or by any uniform holding of the courts of other States. It seems clear, however, that the foreman Bernhart had no authority to bind appellant to pay for the services performed at the hospital. The surgeons presumably had time before operating on Hanson to communicate with officers of appellant having apparent authority to act in the premises, and failing to do so they cannot recover of appellant for such services. But if it be a fact that Bernhart was the highest officer of the company on the ground, which it seems to us appellee should have affirmatively proved, we hold that he had authority to employ appellee to perform such temporary service, by way of first aid, as the occasion required, and therefore appellee may on proper evidence recover in this action the value of the services rendered in treating Hanson in appellant’s yards and for such other and further service as the evidence may show was necessarily performed before he had time to communicate with authorized agents of appellant; but he had no authority to employ other physicians and make the Company liable either to,them or himself for their services.

Appellee offered in evidence his certificate of license from the State Board of Health issued under our act on “Medicine and Surgery.” It was in a frame and showed no indorsement of recording as required by section 4 of that act (J. & A. ft 7385). It is claimed by appellant that he was not entitled to recover because of the omission of that proof, and answered by appellee that the proof was waived by permitting the certificate to go in evidence without objection. We do not think the answer sufficient; the certificate is one thing and the recording another, admitting the first does not prove the last. But it is said by appellee that the defect could have been remedied by proof had objection been made. No authorities are cited by counsel on either side on the effect of omitting to record the license; the question may not arise on another trial and we will not further consider it.

For the reasons expressed, the case is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.