author: Mr. Justice Baker

text:
    A. M. Allen, Appellee, v. Morris R. Cable, Trading as The Cable Wrecking & Lumber Co., Appellant.
    Gen. No. 17,416.
    1. Trover—when instruction as to exemplary damages erroneous. An instruction which permits an award of exemplary damages in an action of trover, is erroneous where there is no evidence that defendant’s purchase of the goods from one claiming to be plaintiffs agent was not made in good faith, and where defendant removed the property openly and without haste, and was not notified that the sale was without the owner’s knowledge or consent until nearly all was removed.

      2. Tboveb—when error to exclude receipt. When exemplary damages are sought in an action of trover where defendant purchased the goods in question of one claiming to be plaintiff’s agent, it is error to exclude the receipt for the purchase price given to defendant, signed by such purported agent as agent, and describing the goods and their location.
    3. Tboveb—evidence—when exemplary damages are claimed. When exemplary damages are claimed in an action of trover, the facts and circumstances immediately connected with the transaction tending to exhibit or explain the motive and intention of defendant or tending to show that he did the acts complained of in good faith are admissible in evidence.
    Appeal from the Municipal Court of Chicago; the Hon. John R. Cavebly, Judge, presiding. Heard in this court at the March term, 1911. Reversed and remanded.
    Opinion filed May 26, 1913.
    Rehearing denied June 9, 1913.
    Maurice Auschuuer, for appellant; Menz I. Rosenbaum, of counsel.
    D. I. Jarrett, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action of trover brought by appellee Allen against appellant, plaintiff had a verdict for $2,867.48 damages. He remitted $867.48, had judgment for $2,000 and the defendant appealed.

March 23, 1909, plaintiff was in California. He had a yard in Chicago in which were stored a lot of lumber taken from buildings which were demolished and a lot of second hand tools and implements. Howard W. Ames was plaintiff’s agent in Chicago for the collection of rents. He, professing to act for the plaintiff but apparently without authority from him, sold to defendant said personal property and certain sheds for $75 and received from the defendant the purchase price.

The court gave for the plaintiff this instruction:

“The court instructs the jury that if you believe from the evidence that the defendant, Morris Cable, took possession of and converted certain property of the plaintiff to his own use without right or authority, and in so doing acted with a wanton, wilful or reckless disregard of the rights of the plaintiff as charged in the declaration, and if the jury further finds from the evidence that justice and the public good requires it, then the law is that the jury are not confined in their verdict to the actual damages proven, if any, but they may give exemplary damages, not only to compensate the plaintiff, but to punish the defendant and to deter others from the commission of like offenses.”

There is in the record no evidence from which the jury might properly find that the defendant “acted with a wanton, wilful or reckless disregard of the rights of the plaintiff.” Defendant purchased the property of Ames, the agent of the plaintiff, and there is no evidence tending to show that such purchase was not made in good faith under the belief that Ames was authorized by the plaintiff to sell the same. Defendant did not attempt to remove the property secretly or hastily, but removed it openly and without haste. It was not until April 10 that plaintiff notified defendant that “the pretended bill of sale made by Howard Ames to you of recent date was without my knowledge, authority and consent,” and nearly all the property had then been removed.

Where a wrong doer acts in good faith under a bona fide claim of right with honest intentions and invades the rights of another so as to render himself liable to an action, punitive or exemplary damages are improper and it is error to submit the question of punitive damages to a jury in the absence of evidence of any requisite element for the application of the rule. 1 Amer. & Eng. Ency. of Law, 52, 53. “Where a party acts without malice, or under a misapprehension of facts, without malice or recklessness, he should not be punished with vindictive damages. ’ ’ Roth v. Smith, 41 Ill. 314-317. On the evidence in this record we are of the opinion that the instruction complained of was erroneous in so far as it permitted an award of exemplary damages, since there was no evidence warranting the award of such damages.

The evidence as to the quantity, quality, condition and value of the property in question was conflicting, but we think it is clear that the recovery included exemplary damages.

Ames testified that he gave to the defendant the following receipt:

“Chicago, March 23, 1909.
Received of the Cable Wrecking & Lumber Company $75.00 in full for lumber, storage, building and contents, situated on the N. W. corner of Polk street and S. 48th Avenue. Signed H. W. Ames, agent for A. M. Allen.”

Defendant offered the receipt in evidence and the court, on the objection of the plaintiff, excluded it.

When exemplary or punitive damages are claimed, all the facts and circumstances immediately connected with the transaction tending to exhibit or explain the motive and intention of the defendant, or tending to show that he did the acts complained of under an honest belief of his right to' do so, are admissible in evidence. Roth v. Smith, 41 Ill. 314; Voltz v. Blackmar, 64 N. Y. 440; Camp v. Camp, 59 Vt. 667; Livingston v. Burroughs, 33 Mich. 511.

We think the court erred in excluding the receipt.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    William J. Wright et al., Appellees, v. Anna S. Chandler et al., Appellants.
    Gen. No. 17,446.
    1. Mortgages—duties of trustee in trust deed. The trustee in a trust deed is the trustee of the creditor as well as the debtor, and the relation imposes on him the duty of acting fairly for the best interests of all parties having rights in the property.
    2. Mortgages—rights of assignee of trustee in trust deed. Where a trustee in trust deed pays taxes and redeems from tax sales under a deed providing that the trustee or the holder of the notes secured by the deed might pay taxes and redeem from tax sales and giving such party a lien superior to the lien of the mortgage debt for the money paid, an assignee of such trustee can assert only the rights and equities which the trustee could.
    3. Mortgages—duty of trustee in trust deed to notify holder of notes of default. The failure of the trustee in a trust deed to notify the holder of the notes secured by such deed of the mortgagor’s default in the payment of taxes is calculated to prejudice such holder’s rights where the deed provides that either the trustee or the holder of the notes might pay taxes and redeem from tax sales and gives such party a lien superior to the lien of the mortgage debt for the money so paid.
    4. Mortgages—when lien of holder of notes secured By trust deed superior to that of trustee who paid taxes. Where a trustee in a trust deed pays taxes on the premises in question and redeems from tax sales under a deed providing that the trustee or the holder of the notes secured by the deed might pay taxes and redeem from tax sales and giving such party a lien superior to the lien of the mortgage debt for the money paid, the lien to which such trustee is entitled is junior to that of the holder of the notes for the amount due where such trustee fails to notify the holder that his wife purchased the equity of redemption for little more than a nominal sum; that the mortgagor permitted the property to be sold for nonpayment of taxes; that the owner of the equity of redemption failed to redeem and that he redeemed as trustee by paying the amount of the sale and a sum equal to more than three-fourths of the amount of the sale for penalties and costs.
    Appeal from the Superior Court of Cook County; the Hon. William Fenimore Cooper, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed May 26, 1913.
    Rehearing denied June 9, 1913.

      Shepard, McCormick & Thomason, for appellants.
    Henry W. Leman for appellees.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by Rosalie A. Selfridge, Anna S. and Frank R. Chandler from a decree of foreclosure on a bill filed by appellees, the holders of certain notes made by Albert Crane secured by a trust deed in the nature of a mortgage executed by Albert Crane and wife to Frank R. Chandler, Trustee, May 1, 1896.

The question presented is whether Mrs. Selfridge, one of the appellants, is entitled to a lien on the mortgaged premises prior to the lien of complainants for taxes paid and amounts paid to redeem the mortgaged premises from tax sales by Frank R. Chandler, the Trustee. Two years after the execution of the trust deed Crane and wife conveyed the equity of redemption in the mortgaged premises to appellant Anna S. Chandler, wife of the Trustee. This conveyance was held to be an absolute conveyance and not a mortgage in Crane v. Chandler, 190 Ill. 584.

The Master found that Frank R. Chandler paid the taxes and redemption money in question as agent for his wife and that Mrs. Self ridge had no right superior to the lien of the complainants. The decree overrules the exceptions of appellants to the Master’s report; finds that there is due complainants $10,997.53; orders the property to be sold, etc., and that out of the proceeds the Master pay first the costs, second, complainants’ solicitor’s fees, third, the amount due complainants, and that he bring the surplus, if any, into court subject to the further order of the court. The evidence to show for whom the taxes were paid is not satisfactory. The loan was negotiated by Chandler and Company, a firm composed of Frank R. and Peyton R. Chandler. Peyton R. Chandler died November 7, 1896. Frank R. Chandler continued to carry on the business under the name of Chandler & Co. until 1897, when the Chandler Mortgage Co. Bank was incorporated and the business was carried on in the name of the corporation two years and a half. Afterwards it was carried on under the name of Chandler Mortgage Co., not incorporated. We think that this business was from the death of Peyton R. Chandler carried on by Frank R. Chandler. He testified that his wife had a running account with Chandler & Co., the Chandler Mortgage Bank and the Chandler Mortgage Co., and that they had charge of her business.

The trust deed provided that in case of failure of the mortgagor to pay the taxes, either the trustee or the holder of the mortgage notes might pay the same or redeem from tax sales, and that in case of foreclosure the amount advanced for taxes, etc., by any party to the foreclosure proceedings, with seven per cent, interest should be paid prior to the mortgage debt. We are unable to concur in the conclusion stated by the Master, that Frank R. Chandler paid the taxes and redemption money as agent for his wife. It seems probable that a woman with an “inherited estate,” who paid $1,500 for the equity of redemption in certain lots, would pay the taxes on such lots, but such probability is no substitute for proof that her husband paid the taxes for her and as her agent.

We think, however, that on another ground the lien of the trustee and of Mrs. Selfridge, his assignee, for moneys paid by the trustees should be postponed to the lien of the complainants for the mortgage debt.

The trust deed, as has been said, provided that either the trustee or the holder of the notes secured by the trust deed, might pay taxes or redeem from tax sales, and gave such party a lien superior to the lien of the mortgage debt for the moneys paid. The trustee in a trust deed is the trustee of the creditor as well as the debtor, and the relation of trustee imposes on him the duty of acting fairly for the best interests of all parties having rights in the property. Gray v. Robertson, 174 Ill. 250; Williamson v. Stone, 128 Ill. 129; Ventres v. Cobb, 105 Ill. 33.

In Meacham v. Steele, 93 Ill. 135, speaking of a trustee under a trust deed, it was said: “A trustee is required to use that prudence and care in discharging the duties of a trust of this kind that a reasonably prudent and discreet man ordinarily exercises under like circumstances with reference to his own property.” In Bush v. Froelich, 14 So. Dak. 62, the president of a loan company was the trustee in a trust deed which the company sold to the plaintiff. The mortgagor failed to pay the taxes, which were paid by the president of the loan company as trustee, as authorized by the deed, but no notice of the mortgagor’s failure to pay the taxes was given to plaintiff, and it was held, that the loan company should not be allowed to claim out of the proceeds of a foreclosure sale a lien for such payments prior to the lien of the plaintiff for the mortgage debt. In this case the proof shows a great depreciation in value of the mortgaged premises. Their value was $9,000 May 1, 1896, and $2,900 in 1910. That this depreciation began soon after the making of the loan is shown by the fact that May 1, 1898, Anna S. Chandler purchased the equity-of redemption in 150 lots covered by this trust deed and four others of the same date for $1,500. The first redemption from a tax sale of the mortgaged premises was made by the trustee September 24, 1898, when he redeemed five of the lots included in the trust deed in this case from a sale for the general taxes of 1896, and paid for penalties, interest, advertising and costs $55.60 to redeem from a sale for $69. It was apparent when this redemption was made that the security was scanty for the original loan of $4,500. Anna S. Chandler may have hesitated to pay the taxes, which she as owner should have paid, because she feared that the value of the property might not exceed the amount of the mortgage, and the trustee may have acted in her interest in redeeming as trustee with the belief that if it turned out that the value of the property did not exceed the mortgage, he would have a lien for his advances prior to the lien of the mortgage debt. The failure of the trustee to notify the complainants of the default in the payment of taxes was calculated to prejudice the rights of the complainants. It is improbable that if the trustee had informed complainants that his wife had purchased the equity of redemption for little more than a nominal sum; that the mortgagor had permitted the property to be sold for nonpayment of taxes; that the owner of the equity of redemption had failed to redeem and he had redeemed as trustee by paying the amount of the sale and a sum equal to more than three-fourths of the amount of the sale for penalties and costs, that they would have refrained from directing a foreclosure of their mortgage, and if loss is to result to any party from a failure to foreclose, the trustee should sustain the loss and not the complainants. Mrs. Selfridge at most can assert only the rights and equities which the trustee could have asserted but for the transfer of his rights to her. We think that the lien to which the trustee or Mrs. Selfridge is entitled for the taxes and redemption money paid by the trustee should be subject and junior to the lien of the complainants for the amount due the complainants on said trust deed and the notes thereby secured.

We think the decree is in accordance with the rights and equities of the parties, and it is affirmed; but the motion that the costs of the additional abstract filed by appellees be taxed against appellants is denied.

Decree affirmed.


text:
    William J. Wright et al., Appellees, v. Anna S. Chandler et al., Appellants.
    Gen. Nos. 17,448, 17,444, 17,445, 17,447.
    These cases are controlled by the decision in No. 17,446, ante, p. 476.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed May 26, 1913.
    Rehearing denied June 9, 1913.
    Shepard, McCormick & Thomason, for appellants.
    Henry W. Leman, for appellees.
   Mr. Justice Baker

delivered the opinion of the court.

These cases present the same question that is presented in No. 17,446, ante, p. 476, and were submitted on the abstracts and briefs filed in that case. For the reasons stated in the opinion in that case the decrees in these cases are affirmed.

Affirmed.


text:
    John Gerdowsky, Appellant, v. Frank Zawlewicz, Appellee.
    Gen. No. 17,466.
    1. Appeals and ebbobs—Bill of exception. An exception to the judgment in a cause tried by the court must be shown by the bill of exceptions to authorize a review thereof on the law and the evidence.
    2. Appeals and ebbobs—preservation of exceptions. The fact that the clerk’s record contains a recital that the defendant excepted to the judgment in a cause tried by the court is not sufficient to authorize a review of such judgment on the law and the evidence.

      Appeal from the County Court of Cook county; the Hon. William C. De Wole, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed May 26, 1913.
    Theo. Proulx, for appellant.
    Rudolph H. Wollner, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action by appellant against appellee in the County Court the declaration consisted of a count in trespass and one in trover, to each of which defendant filed a plea of not guilty. The trial by the court re-suited in a finding and judgment for the defendant.

One of the errors assigned is that the court erred in overruling plaintiff's motion in arrest of judgment. We find no such motion in the record, and the assignment in error referred to is without merit.

All of the other assignments of error question the propriety of the finding and judgment on the evidence. There is a recital in the judgment" order that the plaintiff excepted to the finding and judgment, but there is no exception to either in the bill of exceptions. An exception to the judgment in a cause tried by the court must be shown by the bill of exceptions in order to authorize a review of such judgment on the law and the evidence. In Climax Tag Co. v. American Tag Co., 234 Ill. 179, 182, it was said: “This court has held in a long line of decisions too numerous and too familiar to the profession to require their citation, that in the absence of an exception to the judgment in a case tried by the court, the sufficiency of the evidence to support the judgment cannot be inquired into upon an appeal.” Some of the cases in which this rule has been announced and followed are: Jones v. Village of Milford, 208 Ill. 621; Bailey v. Smith, 168 Ill. 84; Firemen’s Ins. Co. v. Peck, 126 Ill. 493; Martin v. Foulke, 114 Ill. 206.

It is not sufficient that the clerk’s record contains a recital that the defendant excepted to the judgment. “The authority to certify that an objection was made and exception taken to the action of the court in entering judgment rested in the presiding judge of the court, not in the clerk.” People v. Chicago & N. W. R. Co., 200 Ill. 290.

As the questions sought to be presented for our consideration on this appeal were not preserved in such manner that they can be reviewed by this court, the judgment of the County Court must be affirmed.

Judgment affirmed.


text:
    Gerald Names, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,484.
    1. Street railroads—evidence. In a personal injury action where all the evidence shows that plaintiff was injured by defendant’s street car at the time áhd place stated by the only witness, the verdict is sustained though the testimony of the witness who saw the accident contains contradiction.
    2. Contributory negligence—when question of fact. In a personal injury action where plaintiff, a boy seven years old, is struck by defendant’s street car the question whether he was guilty of contributory negligence is for the jury.
    3. Evidence—when admission is improper though not reversible error. In a personal injury action where plaintiff, a boy seven years old, is struck by defendant’s street car, testimony that he “hollered” when his hair was cut and cried when his face was washed after the accident though improper is not reversible error.
    4. Street railroads—instructions as to negligence. An instruction, that if the jury find from a preponderance of the evidence that defendant’s car struck plaintiff and that plaintiff was in the exercise of ordinary care for one of his age, capacity, knowledge, intelligence and experience before and at the time of the accident, and the motorman in charge of the car was aware, or ought to have been aware by the exercise of due care, of plaintiff’s danger, if ¡plaintiff were in danger, in time to have stopped the car before it struck and injured plaintiff, then the jury should find defendant guilty, is not erroneous because it does not tell the jury that they must also find the injuries complained of were the direct and proximate result of the negligence.
    5. Verdict—when not excessive. Where plaintiff, a seven year old boy, is struck and injured by defendant’s street car, a verdict for $2,500 is held not excessive, the weight and credit to be given the testimony regarding the extent of plaintiff’s injury being a question for the jury.
    Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed May 26, 1913.
    Edward C. Higgins and A. C. Wild, for appellant; Leonard A. Busby, of counsel.
    Pines & Newman and Johnson & Belasco, for appellee; Joel Baker, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

October 30, 1907, plaintiff, then seven years and two months old, was crossing Forty-third street at its intersection with Vincennes avenue, going northwesterly. When he reached the north rail of the north, the west-bound, track of defendant, he was struck by a west-bound car and injured. He recovered a judgment for $2,500, to reverse which defendant prosecutes this appeal. No report of the accident was made to the defendant by the motorman or conductor and neither was called as a witness, it is said, because neither knew that anyone was struck by the car. Mrs. Cline testified in chief that she saw the- accident, but on cross-examination admitted that she did not see the injured boy until after he was picked up. Counsel for both parties disregard her testimony as to the accident and agree that Stanhope, a colored boy seventeen years old, is to be considered as the only witness who testified that he saw the accident. He testified that he thought the car was running at the rate of eighteen miles per hour, that “it was light plainly,? ’ that he heard no bell or gong. It is insisted on behalf of appellant that Stanhope could not possibly have seen the car strike plaintiff because, from his testimony, the car must have been between him and the plaintiff when he was struck by the car, and that because of contradictions in his testimony it is not sufficient to support the verdict.

The testimony other than that given by Stanhope tends to show that plaintiff was carried from the place, where 'Stanhope testified that he was struck by the car, into a drug store; that Mrs. Cline there washed the dirt from his face; that Dr. Golden, whose office was over the drug store, was called and soon came and gave him first aid treatment; that his ear was bleeding when he was taken to the drug store; that his father and mother, who lived in the neighborhood, soon came and took him home; that Dr. Orr was sent for and came to see plaintiff and while he was there Dr. Babcock, a doctor sent by the defendant, came and examined plaintiff. The evidence clearly shows that plaintiff was injured at the time and place stated by Stanhope and there is no suggestion that he was injured otherwise than by a street car. We think that from all the evidence the jury might properly find that the defendant was guilty of the negligence alleged in the declaration and that as a result thereof the plaintiff was injured.

In view of the age of the plaintiff we think the question whether he was guilty of contributory negligence was a question for the jury, on which their verdict must be held conclusive.

Complaint is made that witnesses were permitted to testify that plaintiff “hollered” when his hair was cut and cried when his face was washed. The witnesses were not permitted to state what plaintiff said. We think the testimony might well have been excluded, but the judgment should not be reversed because it was admitted.

It is also insisted that it was error to give for the plaintiff this instruction: “The court instructs the jury that if you find from a preponderance of the evidence, under the instructions of the court, that the defendant’s car struck the plaintiff and that plaintiff was in the exercise of ordinary care for one of his age, capacity, knowledge, intelligence and experience before and at the time of the accident in question, and if you further believe from a preponderance of the evidence that the motorman in charge of the car in question was aware, or ought to have been aware by the exercise of due care, of plaintiff’s danger of being struck by said car, if the plaintiff were in such danger, in'time to have stopped the car before it struck and injured plaintiff, then you should find defendant guilty,” because it does not “tell the jury that they must also find that the injuries complained of by plaintiff were the direct and proximate result of negligence.” We do not think that the instruction is subject to the objection made against it.

The final contention is that the damages are excessive. If the jury believed the testimony of plaintiff’s parents as to his symptoms and condition before and after his injury and the testimony of Dr. Kierman as to what such symptoms and condition indicated, the damages are not excessive and the question as to the weight and credit to be given to their testimony was a question for the jury.

We think the record is free from reversible error, and the judgment is affirmed.

Affirmed.


text:
    Thomas W. Magill, surviving partner of H. O. Stone & Co., Appellee, v. John A. Murphey, Jr., Appellant.
    Gen. No. 17,511
    1. Interest—when properly included in verdict. Where defendant in writing authorized plaintiff to negotiate a certain loan and agreed to pay plaintiff therefor $250, the proposal may he regarded as an instrument in writing within the meaning of the statute relating to interest and the court may properly direct a verdict including interest.
    2. Names—idem sonans. Murphey and Murphy are idem sonans and the same name.
    3. Appeals and errors—mistake in verdict. That the verdict is for the “plaintiff” and not for the “plaintiffs” is no ground for reversing a judgment which is in favor of the plaintiffs.
    Appeal from the County Court of Cook county; the Hon. J. E. Owens, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 26, 1913.
    Rehearing denied June 9, 1913.
    John A. Murphey, Jr., for appellant.
    John T. Booz, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

Defendant Murphey in writing authorized plaintiffs to negotiate a loan or extension of his loan of $15,000 on his property and agreed to pay plaintiffs therefor $250. Plaintiffs complied with the terms of the proposal and brought this suit to recover the compensation defendant agreed to pay. The court directed a verdict for the plaintiffs for $250 and interest at five per cent, from August 15, 1907, the date of the extension agreement. The jury returned the following verdict:

“We the jury find the issues for the plaintiff and assess the plaintiff’s damages at
$290 dollars.
$ 63 cents.”

The court denied defendant’s motion for a new trial, entered judgment on the verdict in favor of the plaintiffs and defendant appealed.

We think the proposal may be regarded as an instrument in writing within the meaning of the statute relating to interest and that the court properly directed a verdict for the interest. Murray v. Doud & Co., 167 Ill. 368; Downey v. O’Donnell, 92 Ill. 559.

Murphey and Murphy are idem sonans and the same name.

The fact that the verdict is for the plaintiff and not for the plaintiffs is no ground for reversing the judgment, which was in favor of the plaintiffs.

The verdict is clearly for $290.63 and the court properly gave judgment for that sum on the verdict.

Finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    Federal life Insurance Company, Appellant, v. O. H. looney et al., Appellees.
    Gen. No. 17,523.
    1. Interpleader—jurisdiction over defendants. A bill of inter-pleader and the decree based thereon is not a proceeding in rem and no jurisdiction is acquired over a nonresident defendant therein served by publication or service of the bill.
    2. Interpleader—when decree of premature. A decree of interpleader is premature where it is entered before answer of a nonresident defendant served by publication.
    3. Interpleader—when decree of erroneous. A decree of inter-pleader is erroneous where it is entered after a judgment or decree for the amount claimed against complainant is entered in a foreign jurisdiction by a court having jurisdiction of the parties and the subject-matter, and the bill does not admit liability for the full amount claimed.

      4. Interpleader—where amount admitted is less than amount claimed. A suit cannot be prosecuted as an interpleader where the amount claimed is in excess of the amount admitted to be due and paid into court by complainant.
    5. Appeals and errors—when cannot he said that the trial court erred in fixing master’s fees. It cannot be said by the Appellate Court that the trial court erred in fixing the master’s fees where the order fixing such fees recites that it was heard on “the certificate of the master concerning his fees” but such a certificate is not called for by the praecipe for a transcript and it is not contained in the transcript.
    6. Res judicata—when domicile of insured is. On a bill of interpleader by an insurance company against the local administrator of the insured, the widow of the insured individually and as executrix in a foreign jurisdiction, and a person claiming the amount of the policy, the question as to the domicile of the insured is res judicata where it was adjudicated in the jurisdiction in which the widow is executrix in a suit by the person claiming the amount of the policy against the company and the widow individually and as executrix.
    7. Chancery—master’s report. Refusal to direct the master to make his report in accordance with, and within the scope of the order of reference, is error.
    8. Appeals and errors—when complainant in interpleader not prejudiced hy a decree. An 'insurance company is not prejudiced by a decree in an interpleader suit brought by it against those who claim the amount of a policy, where the decree gives it the credits which it claims, finds that a decree in a foreign jurisdiction for the amount of the policy and for a penalty for nonpayment is res judicata, and orders that the clerk pay out of the fund paid in by such company a certain amount to two of the defendants, and that the part of an order reciting that the_ company be released be vacated; where it seems that such company could not successfully defend a suit by such two defendants on the transcript of the decree in their favor of the court in such foreign jurisdiction for the amount of the policy and the penalty.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed May 26, 1913.
    Rehearing denied June 9, 1913.
    Statement toy .the Court. This is an appeal by the complainant in a bill of interpleader from the decree in the cause entered December 10, 1910, in the Circuit Court of Cook county.

      The Chicago Life Insurance Company issued a policy on the life of William R. Payne for $5,000, payable to his executors, administrators or assigns, and the Federal Life Insurance Company reinsured the policy. Payne died January 26,1907, testate. March 14, 1907, his will was admitted to probate by the County Court at Nashville, Tennessee, and letters testamentary issued to his widow, Estella F. Payne, one of the appellees. March 26, 1907, Looney, one of the appellees, filed a bill in the Chancery Court at Nashville against the two insurance companies and Mrs. Payne, individually and as executrix, alleging that although the policy was in the custody of Mrs. Payne, he was the lawful owner and entitled to the proceeds thereof and praying that an attachment issue, and for general relief. April 1, 1907, both insurance companies entered their appearance in the cause and filed their petition for removal to the United States Court, and the cause was so removed, but was afterwards remanded to the State Court. There each company filed its answer alleging that the assured was a resident of the State of Illinois when he died; that the policy was payable to his estate; that James S. Hopkins was appointed administrator of his estate November 29, 1907, at Chicago, and as such administrator claimed the proceeds of the policy. Mrs. Payne also answered the bill, alleging that Nashville was the domicile of the assured at and for many years before his death; that he died without children; that under the laws of Tennessee she was entitled to the proceeds of the policy and denying the principal allegations of Looney’s bill. The answer admitted that the assured owed to the Federal Life Insurance Co. $215.71, which should be deducted from the policy, leaving the balance due her primarily $4,784.29. December 3, 1907, she also filed a cross-bill against the Insurance Companies and Looney. January 7, 1908, Hopkins as administrator brought an action on the policy against the Insurance Companies in the Municipal Court of Chicago. February 14,1908, appellant filed its bill of interpleader in the Circuit Court of Cook county against Hopkins, Administrator, Chicago Life Ins. Co., Looney and Mrs. Payne individually and as executrix of the assured, but no order or decree of interpleader was entered until April 8, 1909. June 29, 1908, a decree was entered in the Chancery Court at Nashville, in which the Court adjudged that the Federal Life Insurance Co. was entitled to an offset of $215.71; that the amount due on the policy was $5,Ill.85, including interest and deducting said sum of $215.71, that Looney was entitled to $3,000 of that sum and Mrs. Payne to the remainder, $2,Ill.85, and giving to each a judgment or decree for the amount so found due against the Federal Life Insurance Co., and providing that unless said Insurance Companies paid the decree within sixty days a judgment should go against said Companies for $1,277.92 as a penalty, in accordance with the laws of Tennessee. July 6, 1908, the Federal Life Insurance Co. prayed, was allowed and perfected an appeal to the Supreme Court of Tennessee. The complainant in the bill of interpleader filed amendments to the bill May 14 and October 28, 1908. To the last amendment is attached a copy of the decree in the Chancery Court at Nashville entered June 29, 1908. October 31, 1908, Mrs. Payne filed her demurrer to the bill of interpleader. November 12, 1908, complainant filed an affidavit for publication as to defendant Looney and December 10 filed proof of publication and mailing. November 7, 1908, leave was granted complainant to pay into court $5,223.45, being amount of policy, $5,000, less offset of $215.71, with interest from date of death of the assured. March 17, 1909, the decree of the Chancery Court was affirmed by the Supreme Court of Tennessee except as to the additional liability of appellant by reason of its failure to pay the decree within sixty days, which was reduced to $750. The Court in the judgment of affirmance found that Looney was entitled to $3,000 with interest, $3,171.75, and gave judgment in favor of Mrs. Payne against the Federal Life Insurance Co. for $2,952.26 and the costs of the appeal, said sum including the decree of $2,Ill.85 of the Chancery Court, interest thereon and the $750 penalty. April 9, 1909, a decree was entered in the cause, wherein the Court found that complainant had paid into court $5,223.45; that Looney had been notified of the pendency of the suit by publication and the service of a copy of the bill. The decree overrules the demurrer of Mrs. Payne, decrees that the bill of interpleader and amendment were properly filed; orders that the defendants interplead and settle the matters in controversy among themselves ; that the cause be referred to Master Browning to inquire and report which of the defendants is entitled to the fund, or if more than one is so entitled, that he ascertain and report the amount belongingto each; that complainant have leave to be heard as to costs and solicitor’s fees out of the fund as the Court may later determine; that the Federal Life Insurance Co. be released and discharged from any liability under said policy; that either party may present to the Master a written statement of his claim, which shall be answered on oath by the other claimant to the fund; that the defendant be restrained from collecting or enforcing any judgment based on the reinsurance by the Federal Life Insurance Co. of a policy on the life of said assured. The decree reserves the consideration of costs as between complainant and defendants and as between the defendants and all other questions and directions until the coming in of the report, with liberty to apply, etc. November 27, 1909, Mrs. Payne individually and as executrix answered the bill of interpleader, in which she alleged that in the chancery case in Tennessee it was determined that the residence of the assured was in Tennessee; that she was his executrix and entitled to the proceeds of the policy save that part adjudged to Looney; admitted that the decree set out in the ‘ ‘ additional amendment” is cor-root so far as it goes, but alleged that an additional judgment for $1,277.92 was entered against said Insurance Companies and an appeal taken from said decree ; that the issues raised in this action were raised in the Chancery Court of Tennessee, as appears from the bill of Looney and the answers of the defendants, which are set out m haec verba in the answer. April 12, 1910, Looney filed his answer to the bill of inter-pleader, in which he admitted that he had collected on his judgment $583.66 by garnishment proceedings in Tennessee against the Federal Life Insurance Co., and avers that there was still due him on said judgment $2,598.59, and that Mrs. Payne claims that there was due her $2,Ill.85. November 21,1910, Mrs. Payne filed her cross-bill in the Circuit Court of Cook county, repeating in substance the allegations of her answer and again setting out the proceedings in the Chancery Court at Nashville, and in the Supreme Court of Tennessee and praying that the defendants may be decreed to pay her $2,952.26 with interest at 5 per cent, from March 15, 1909 (the date of the judgment in her favor in the Supreme Court of Tennessee). November 25, 1910, complainant answered said cross-bill and Mrs. Payne filed her replication to the answer.
    The complainant moved for an order that the Master make up his report “within the scope of and in conformity with the order of reference, ’5 and the Court, October 17,1910, denied the motion. October 21, 1910, the Court entered an order fixing the Master’s fees at $600, ordered that the same be paid out of the money paid into court by complainant and reserved the question whether said sum should be taxed as costs until the final hearing. The Master filed his report Oetoher 28, 1910. December 24, 1910, the decree appealed from was entered. The Court finds that proceedings were had in the Court of Tennessee substantially as herein stated, and sets out the findings and decrees of the Chancery Court and Supreme Court of Tennesee; finds that “the decree in Tennessee is res adjudi

      cata; that the complainant is not entitled to costs or solicitor’s fees, but all costs in the case should be” assessed against complainant; that Looney recover ag’ainst complainant $2,615.35; that Mrs. Payne recover $3,223.69; that the Clerk pay out of the fund in his hands the amount found due to Looney and the remainder to Mrs. Payne; “that so much of the order of reference of April 8, 1909, reciting that the Federal Life Insurance Company be released and discharged” be vacated.
    The praecipe for a transcript directs the Clerk to insert the evidence introduced before the Master by Mrs. Payne, by Looney, by Hopkins, administrator, and by Chicago Life Insurance Co.; the objections filed before the Master and exceptions filed in the Circuit Court by Hopkins, administrator, by the Chicago Life Insurance Co. and by Looney.
    The assignment of error is as follows:
    “1. The court erred in entering the order of October 17, 1910, refusing to direct the master to make up his report in accordance with and within the scope of the order of reference referring the cause to the master.
    2. The court erred in entering the order of October 21, 1910, directing as to the amount of fees to be paid to the master.
    3. The court erred in entering the order of November 22, 1910, giving leave to Estella F. Payne to file her cross-bill in said cause and also erred in refusing to strike said cross-bill from the files.
    4. The court erred in entering the decree of December 24, 1910.
    5. The court erred in denying solicitors’ fees to Federal Life Insurance Company and erred in denying that Federal Life Insurance Company be allowed its costs for filing the bill of interpleader herein.
    "Wherefore for these and divers other errors appearing in the record, the appellant prays that the above orders and decrees be set aside and reversed, and that the lower court and the master be directed to nroceed in accordance with the decree of April 8, 1909, and the order of reference therein and that the master’s fees he held in abeyance until the coming in of a report within the scope of the said order of reference and that the master be allowed only such fees as are proper upon the taking of the evidence and the making of a report within the scope of the order of reference.”
    Charles A. Atkinson, Joseph P. Mahoney and Chilton P. Wilson, for appellant.
    John Edward Waters, for appellee O. H. Looney, Frederick A. Brown, William R. T. Ewen, Jr. and Johk C. DeWolfe, for appellee Mrs. Payne; Charles M. Foell, Grafton Greek and William B. Marr, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

A bill of interpleader and the decree based thereon is not a proceeding in rem, and the Circuit Court did not acquire jurisdiction over Looney by publication or service of the bill. Gary v. Northwestern Mut. Aid Ass'n. 87 Iowa 25. The Court had jurisdiction of Mrs. Payne when the decree was entered, for she had demurred to the bill, but had not over Looney, for his appearance was not entered until a year after the decree of interpleader had been entered. The decree entered April 8, 1909, regarded as a decree of inter-pleader, was premature and erroneous; premature because the Court had no jurisdiction over Looney, and erroneous, first, because before it was entered a judgment or decree for the amount due on the policy had been entered in the Chancery Court at Nashville in favor of Looney and Mrs. Payne and against appellant in a suit in which that Court had jurisdiction of the parties and of the subject-matter. Maclennan on Interpleader, 46; Union Bank v. Kerr, 2 Md. Chap. 460; Home Life Ins. Co. v. Caulk, 86 Md. 385. In McKinney v. Kuhn, 59 Miss. 187, it was said: “It is well settled both by reason and authority, that one who asks the interposition of a court of equity to compel others claiming property in his hands to interplead, must do so before putting them to the test of trials at law.” After judgment against him by part of the defendants, it is impossible for the interpleader to occupy a position of strict neutrality between the parties. Home Life Ins. Co. v. Caulk, supra. Second, because the bill does not admit liability for the full amount claimed. It appears from the amendment to the bill that Mrs. Payne had recovered judgment against the complainant for $1,277.92 as a penalty under the laws of Tennessee on the ground that the refusal of the Federal Insurance Co. to pay the loss' was not in good faith. The statute authorizing such a penalty was held valid by the United States Supreme Court. Supreme Ruling v. Snyder, 227 U. S. 497. The bill admits liability for the amount of the policy and interest, less $215.71 due complainant, which is not disputed, but admits no liability for the penalty, although the transcript attached to the amendment to the bill shows the judgment for the penalty. Looney in his answer claimed the amount decreed to him by the Tennessee Supreme Court, $3,171.75, less a credit of $583.66, the amount collected by him from the Federal Life Insurance Co., with interest from March 17, 1909, the date of the judgment of affirmance in the Supreme Court of Tennessee. Mrs. Payne in her answer claimed $2,Ill.85, the amount awarded her by the Chancery Court at Nashville, and $1,277.92, the penalty given her by the decree of that Court. The amounts so claimed amount to $6,561.52, a sum greatly in excess of the amount admitted by complainant and paid into court.

The amount due cannot be the subject of controversy in an interpleader suit, and the difference between the amount claimed and the sum which plaintiff admitted and paid into court presents an insuperable objection to the prosecution of this suit as an interpleader. B. & O. R. Co. v. Arthur, 90 N. Y. 234; Maclennan on Interpleader, 72. The bill cannot be sustained as a bill of interpleader, and the Circuit Court did not err in refusing to allow complainant solicitor’s fees and costs.

The order of October '21, 1910, fixing the Master’s fees at $600 recites that it was heard upon “the certificate of the Master concerning his fees.” Such a certificate is not called for by the praecipe nor is it contained in the transcript. We cannot therefore say that the Court erred in fixing the Master’s fees at $600.

We will not attempt to decide what head of equity jurisdiction the Circuit Court exercised in entering the decree appealed from, but will only consider the question whether the complainant is harmed or prejudiced by the decree. The decree gives complainant both the credits it claims, the credit for the amount due from the assured on the policy, and the credit for the amount collected by Looney from complainant in garnishment proceedings. The question whether the domicile of the assured was at Nashville or Chicago was adjudicated in the suit in Tennessee, and by that adjudication appellant is bound. We are unable to see that appellant could successfully defend a suit by Looney and Mrs. Payne on the transcript of the Tennessee judgment or decree, and therefore think that the decree in this case is not prejudicial or harmful to appellant.

We think that the Court erred in refusing to direct the Master to make his report in accordance with and within the scope of the order of reference. If the scope of an order of reference is to be extended or limited, it must be done by order of the court, not by the arbitrary action of the master; otherwise the proceeding is a trap for the party who, relying on the order of reference, refuses to offer evidence as to matters not within the scope of the reference; but we think that for the reasons stated appellant was not prejudiced by the order complained of. For the same reasons we think appellant was not prejudiced by the filing of a cross-bill by Mrs. Payne, or the refusal of the Court to strike the same from the files.

The record is, we think, free from prejudicial error and the decree is affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    Wilson R. Young, Administrator, Plaintiff in Error, v. Chicago & North Western Railway Company, Defendant in Error.
    Gen. No. 16,862.
    1. Master and servant—wanton or wilful injury. It may be said, as a matter of law, that the engineer and train crew of a train which struck a railway velocipede and killed the operator thereof were not wantonly or wilfully reckless, where the collision occurred on a dark and foggy night, the velocipede which was small carried no lights, it was not consistent with the practical operation of the locomotive for the engineer to have his eyes continually on the track, and a slight intermission in such a gaze would account for failure to observe the velocipede.
    2. Master and servant—wanton or wilful recklessness. The question whether one of defendant’s towermen was guilty of wilful and wanton recklessness in failing to notify the engineer and crew of a switching train to look out for a signal maintenance man on a velocipede who was struck by such train is properly withdrawn from the jury where it appears that the inquiry of the signal man, as to when the next train was due on the track in question, on receiving an order through such towerman to perform some work, could hardly have been supposed to be directed to the probability of the switching train, that such signal man was experienced about the section of the road where the accident occurred and had often operated a velocipede over it, that he was probably as well acquainted with the possibility of switching trains on the track in question as the towerman, and that it was no part of the towerman’s duty to know the manner in which the switching of the train in question was done.

      3. Master and servant—what infringement of rules does not show habitual disregard therefor. The fact that rules of a railroad company requiring employes using velocipedes to run against the traffic and to carry lights are sometimes infringed does not show an habitual disregard for the rules.
    4. Master and servant—disobedience of regulations. The general rule that, where an employe knowingly and intentionally disobeys a reasonable rule or regulation established for his safety and is injured in consequence thereof he cannot recover, applies when a railway company’s employe knowingly and intentionally disobeys a rule requiring employes operating velocipedes to run against the traffic and to carry lights.
    Error to the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed May 26, 1913.
    Benson Landon, for plaintiff in error.
    William S. Kies, for defendant in error; Edward M. Hyzer, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

The delay in the decision of this cause has been due to the prolonged and careful consideration which the questions raised in it demanded from us.

Our study of it has resulted in the belief that despite plausible grounds for thinking that in the proceedings of the trial inaccuracies and errors in rulings and instructions, can be found, the verdict of the jury in favor of the defendant is the only one that could have been justified or allowed to stand, and that therefore the judgment of nil capiat and for costs against the plaintiff should be affirmed by us.

The plaintiff, Wilson R. Young, is the administrator of the estate of his brother, Willard N. Young, who was, while in the employ of the defendant, the Chicago & North Western Railway Company, and under the general charge of his brother, Wilson R. Young, then also an employe of the defendant, fatally injured by being run over by a train of the defendant in the control of its servants. The action was brought under the Campbell Act (so called) of Illinois.

The facts related to the occurrence, as we hold the evidence discloses them to be, are these: Wilson B. Young, now administrator and plaintiff, was at the time of the accident signal supervisor for the Chicago & North Western Eailroad Company in the Chicago terminal territory, so called. This territory is sometimes also called the “Yard Limits,” and extends from Central street in Evanston to Chicago on the main lines of the Milwaukee Division and from Evanston to Mayfair and West Fortieth street to the southwest and from Mayfair and Fortieth street into Chicago on what are called in the evidence the Mayfair tracks. The duty of Wilson E. Young was to supervise the installation and maintenance of signals according to the block system in common use on railways. There were many signals and automatic apparatuses working them along the tracks and several signal towers, but the only ones which need mention here are a signal tower equipped with a telegraph and the levers for an interlocking plant at Central street, the most northerly of the defendant’s stations at Evanston and the end of the “Yard Limits;” a similar tower at Davis street in Evanston, also so equipped, and an automatic signal light south of Bogers Park. On the main Milwaukee Division line from Chicago there were, among other stations, the following, naming them from south to north: Chicago, Clybourn Junction, Bose-hill, Bogers Park, Calvary Cemetery, Davis street, Evanston, and Central street, Evanston. There was a double track between all these stations, the west track being for north-bound traips; the east track for southbound trains. Just at the tower at Central street two other tracks come into this main line, which tracks run from this point to Chicago by another route farther west, called the Mayfair Boute because running through a station so named. These tracks from their switching points into the main line run nearly or quite parallel with the main track for a thousand feet or more, then curve to the west toward Mayfair, and by a Y are connected beyond this curve with the main Milwaukee tracks again about three-quarters of a mile from the Central street tower.

The deceased, Willard N. Young, a man 26 years old, was on April 13, 1906, and for almost a year at least had been working under Ms brother, in general signal maintenance work. Previous to that he had been a “battery man,” so called, for several years. A battery man is also engaged in signal maintenance, the difference between him and a maintenance man being, as is explained in the evidence, that a maintenance man is boss of the battery men, who report to him and take orders from him. For some months before April 13, 1906, his business was the maintenance of the automatic signals between Central street, Evanston, and Clybourn Junction, Chicago, a distance of fifteen miles. His duty was to keep them in operation, repairing them and the automatic apparatus worMng them when necessary. He went back and forth along the road to reach these signals by trains and by railroad velocipedes furnished by the North Western Bailway. These velocipedes were small, wooden framed, three wheel hand cars propelled by levers and weighing each about 150 pounds.

There was a rule of the Bailway Company with wMch Willard N. Young was acquainted, that when a signal maintenance man was using one of these velocipedes in his work, he should run “against the traffic,” that is, on the south-bound track if he. was going north; on the north-bound track if he was going south. There was another rule that at night the man using a velocipede should carry at least one lighted lantern upon it, showing a red light in both directions. These rules were to prevent the obvious danger of such an accident as the one which was the occasion of this litigation—the collision at night between a train coming from the back and the velocipede.

It appears also in the evidence that in the “Yard Limits,” that is between Chicago and Central street, Evanston, extra switching trains, according to the custom and rules of the road, run without specific orders or schedule under the charge of the train foreman or conductor of such train and in accordance with orders of the yard master, who says, to quote from the evidence, “Go and get this car,” or “Do this or that. ’ ’

The train which ran over the plaintiff’s intestate was in charge of one Charles Silver, the foreman of a switching crew. It had no regular running time. After doing switching work on the tracks at Grand avenue in Chicago, it went, when that work was through up along the Milwaukee Division and placed milk cars at one or more of the stations. Silver had for many months been taking this switching or car placing train out on the Milwaukee Division and after placing the cars we have alluded to, would run the train up just beyond the signal tower at Central street, back down on the Mayfair Branch, and when beyond the Y leading back to the main tracks, return to the southbound main track, thus reversing the direction of the cars as well as of the engine on that track. The train then came back to Chicago. This was a regular pro-gramme each night except Sunday, but not at any regular time. Silver says:

“One of the pieces of work that we had to do every night was to turn this mail car. * * * We went to work at one o ’clock in the afternoon and worked until we got done. * * * Nobody knew anything about when I started. I had orders at that time from the yard master when this milk got in, to deliver it and turn that mail car, and whenever our work was arranged so that we could I went and sometimes it was one time and sometimes another time, any time between. We would leave there any time between nine o’clock and eleven or twelve. These orders were from the yard master. I never received any from the train dispatcher. I never made and report and never. received any orders from anybody but the yard master. ’ ’

On the night of April 13, 1906, the man in charge of the signal tower at Central street in Evanston was one Ralph Boyington. He was a telegraph operator and lever man handling the levers to throw switches and operate signals at this point. As a telegraph operator his duties were to report trains to the train dispatcher, take orders and -receive and send messages. The orders were mostly running orders for extra trains; that is, if the train dispatcher had an order to deliver to the train at that point he would do it through telegraphing it to Boyington. Boyington testified, however: “All extra trains that were in the yard limits run without orders. All those north of the yard limits had to get orders before they could proceed.”

On that night at some time in the evening Boyington received a telegraph message for the plaintiff’s intestate, Willard N. Young. It came from the train dispatcher’s office in Chicago and ordered him to go out and relight a certain marked signal south of Rogers Park and between that station and Rosehill, which had been reported as out. Boyington took the message over to the house where Mr. Young was boarding, about a block from the tower. He was not in at the time, but came to the tracks later at about half past eleven. He took a velocipede and placed it on the south-bound track but took no lights on it. As we read the testimony, which, however is not entirely clear on this point, the lights or lanterns were at the house where Young was boarding and this was the house of the man who was temporarily incapacitated and whose place Young was taking. At all events they were, so that man testified, where they could be obtained by Young. Boyington testified that seeing Young on the velocipede car at the foot of the tower, he spoke to him from above and asked him where he was going, and that Young replied that he was going down to relight that signal at Eogers Park; that Young then asked what was the next train due south and he, Boyington, told Tirm the next train due was at 5:40 in the morning, Boyington saw Young start off, going south on the south-bound track toward Chicag’o. Not far from a quarter of an hour after this conversation the switching or milk train in charge of Silver that has been described, ■ came up the north-bound track and proceeded north of the tower. The switches were thrown as usual, so that it could, as it did, back down on the Mayfair Branch tracks.' After the locomotive had passed the Y connection, this being, however, of course out of sight of the signal man in the tower, it reversed its motion and passed at the head of the train through the arm of the Y to the main south-bound track of the Milwaukee Division and proceeded south. At Calvary station it met a north-bound train on the north-bound track and, in accordance with the rule of the Company forbidding a train to run by a station while a passenger train is there discharging or receiving passengers, either slowed up or stopped entirely. Starting again it ran a distance which the conductor described as ‘ ‘ six or seven blocks,” and for a time, which the engineer says was “something like five minutes,” when the engineer, who had seen nothing ahead of him on the track, became conscious that he had either broken an eccentric beneath the engine or hit something on the track with his wheels. He shut off the power and allowed the engine to drift a short way. Then, stopping the train and lighting a torch, he found the remains of a velocipede on the pilot of his locomotive. Further back, on search, the train crew found Willard N. Young with his leg torn off. They brought bim to the Eailroad Dispensary in Chicago and he died there of his injuries.

It was on these facts that the suit at bar was brought. The declaration as originally filed contained two counts, both alleging the negligence of the defendant through its servants in driving its train on Young; the second count practically adding to the first nothing hut the assertion that this was done without keeping a look out ahead.

Afterward by leave of court five more counts (called first, second, third, fourth and fifth additional counts) were added and subsequently amended. As they stood after amendment, the first of these additional counts alleged the negligence to be that after ordering Young to go to a certain signal on the line and furnishing him a railway tricycle to go on, the defendant, by its servants, informed him that the next south-bound train was due at Evanston several hours afterward, and then, while he was traveling on the tricycle southward, ran an extra train, which had no regular running time, southward on the same track without notifying or directing the servants of the Company who were then and there in charge of the said extra train to look out for Young, by means whereof he was run down and killed. The second amended additional count alleged the same matters, but indicated the negligence to be in not notifying Young to look out for the train. To this and the fifth amended additional count a demurrer was sustained and no complaint is made of that ruling so that these counts may be ignored. The third amended additional count and the fourth amended additional count alleged, instead of negligent conduct, “wilful, wanton and reckless” conduct on the part of the defendant by its servants, the third count asserting that this wilful, wanton recklessness was in running down Young, and the fourth that it was in operating the train without notifying or directing its servants in charge of the operation to look out for Young.

After the plaintiff’s case was in, the trial Judge instructed the jury to find the defendant not guilty on the first and second counts of the original declaration and on the third and fourth amended additional counts. This left to go to the jury only the first amended additional count, the substance of which has been hereinbefore set forth.

The peremptory instruction is assigned for error and it is vigorously insisted in this Court that there was evidence to sustain the rejected counts. As we have determined that this cause should be disposed of on the issue which is raised in it of the contributory negligence of Young and its legal effects, we shall, although postponing further mention of the ruling of the trial Court on the counts of the original declaration, at once dispose of this contention concerning the amended additional counts, which aver wilful and wanton conduct. For if the conduct of the defendant were wanton and -wilful, “equivalent to intentional mischief, ’ ’ the contributory negligence of the deceased would not be a defense. Lake Shore & M. S. R. Co. v. Bodemer, 139 Ill. 596; Chicago & W. I. R. Co. v. Flynn, 154 Ill. 448.

But we think that the Court below was fully justified in its conclusion that there was no evidence tending to show the defendant’s servants to have been wantonly or wilfully reckless. As to the engineer and other members of the train crew, there is not even a plansible pretext for charging them with it. Although the road was straight for a long distance north and south of the collision, the night was dark and foggy, the velocipede was small, set low down on the track and was unlighted, and it was not consistent with the practical operation of his locomotive that the engineer should for every second have his eyes fastened on the track ahead. The evidence is clear that a very slight intermission in such a gaze would account for his failure to see an object on the track. It is at least very -doubtful in our minds whether negligence even could be imputed under these circumstances to the engineer. Wanton and wilful recklessness certainly could not.

Concerning the failure of the tower man, Boyington, to notify the engineer and train crew to keep a special look out for Young, it is also clear to us that the Court would not have been justified in allowing the question to go to the jury as to whether such failure was wilfully and wantonly reckless. The inquiry of the deceased was when the next south-bound train was due, an inquiry which might indicate as well a desire for information as to the urgent necessity of an immediate repair of the signal as anything else. An inquiry as to when a train was due could hardly have been supposed to be directed to the probability of a switching or extra train which ran within the terminal at times varying through a limit of at least three hours. The deceased was an experienced man about railroads and about this particular section of the road on which he was often running on his velocipede. Boyington testified without contradiction that Young between seven o’clock and midnight was engaged in doing this same sort of work on an average once every night. There was clearly every probability that he was as well acquainted as the tower man himself with the possibility of there being switching trains within the so called Yard Limits, of which it could not be predicated that they were due at any particular time. When to these facts are added the very important ones that it was no part of Boyington’s duty to know anything about the manner in which the switching or the turning of the mail car was usually done by the train in question, and that he had no means of knowing whether it was going back to Chicago by way of Evanston or by Mayfair, and that he last saw it backing down the curve on the Mayfair tracks 1,000 feet from the tower, it is made quite plain that even if there was a question of the negligence of Boyington to go to the jury as against the defendant, as the Court below held there was, it was certainly not a question proper so to be presented, whether there was that wanton and wilful recklessness in his conduct which would prevent the legal effect of contributory negligence on the part of the deceased.

The jury, with their general verdict of not guilty, returned answers to special interrogatories propounded to them by the Court. They declared by these answers that there was a rule or regulation of the Bail-road Company that signal men when running velocipedes at night should have lights on them, and that there was another rule that when so running they should face the traffic; that Young knew, or in the exercise of ordinary care should have known, of these rules, and that the violation of each of these rules contributed to the happening of the accident.

Among other errors assigned is the submission of these special interrogatories; but we- may well pass over this to decide, first, whether these answers are not the only ones which the evidence justified and whether that fact did not render the general verdict for the defendant inevitable, and the only one that could by a reviewing court lie allowed to stand. If we answer these queries in the affirmative, as we think they must be answered, we do not need to spend time on the technical inaccuracies alleged to exist in procedure and rulings during the trial.

As is succinctly stated in the case cited and relied on by the plaintiff in error, Chicago & W. I. R. Co. v. Flynn, 154 Ill. 448, p. 453, the general rule is “that where an employe knowingly and intentionally disobeys a reasonable rule or regulation of his employer established for his safety, and is injured in consequence thereof, he cannot recover.” We think this general rule is applicable to this case.

The plaintiff in error, however, contends that this case is governed by the exception to this general rule, which is thus stated in the same opinion, p. 454: “But the law seems to be otherwise where an injury to an employe results from a breach of a rule or regulation of the employer which has grown to be habitual, to the knowledge of the employer.” Then from another case the opinion quotes approvingly this sentence; “Ordinarily, disobedience of a rule would be negligence; bnt if the defendant prosecuted the work in a manner that rendered a violation of the rule necessary or probable, or if it suffered or approved its habitual disregard, the rule was inoperative.”

The plaintiff in error not only maintains that tending to sustain the position that in this case defendant’s approval of an habitual disregard of the rules existed, there was such evidence as to make inaccuracy in rulings on instructions or evidence bearing on the question of contributory negligence injurious and fatally erroneous, but even that the great weight of the evidence sustained that position.

We are unable to concur in even the first of these two positions. A careful consideration of the testimony in this case, repeatedly read, convinces us that the existence of the rules concerning lights and concerning running against the traffic was proved, that their being brought home to the knowledge of the deceased was proved, that the defendant’s insistance on their being observed was proved, and that it was proved that they were not habitually disregarded, and that disregard and non-observance of them were never approved by the defendant.

That these rules were sometimes infringed was indeed proven. But this is nothing to the point. They were broken by the witness Hunt, for example, who had sometimes, as he said, “taken his life in his own hands” in “running with the traffic,” and perhaps so disregarded by him when his lights went out through jolts. But he said of the last occurrence, “I would have to relight them or run the risk of getting* killed. ’ ’ These infringements of the rules are, however, not proved to have been habitual or approved. The reverse, we think, appears. The only testimony that tends to our mind to sustain any such proposition was that of the plaintiff himself, a party not only nominally but also beneficially interested and whose testimony leaves much to be desired in apparent ingenuousness. His testimony seems to attempt to establish that the observance of the rules was impracticable, but it fails to show any reason for the statement except that they added difficulty or labor to the work of the men. That is not sufficient in matters vitally affecting safety of life and limb. That men will persist in carrying iron hammers instead of wooden ones into powder mills, does not, for example, prove the unreasonableness or impracticability of a rule to the contrary.

Viewing, then, this case so far as it turns on the contributory negligence and want of ordinary care on the part of the plaintiff’s intestate, as we do, it seems to us unnecessary further to extend this opinion by a discussion of whether the evidence tends to establish any actionable negligence of the defendant through the acts or defaults of its servants, the engineer and the tower signal man; whether all the counts withdrawn from the jury should have been withdrawn; whether the instructions were in all respects accurate and whether there were not erroneous rulings on the admission of evidence or in the submission of the eleven special interrogatories. We have considered them all carefully, but the conclusion we have arrived at' on the whole case renders it unnecessary that we should announce our opinion on them in detail.

We think the case was fairly tried and submitted to the jury on the only questions which could properly be said to present any issue for them; that no competent evidence was excluded which could have thrown light on the question of contributory negligence; that the contributory negligence of the deceased was proven beyond question; that the finding of the jury thereon was that which might without error have been held even as a matter of law by the Court, and that justice having been done, the judgment of the Circuit Court should be affirmed.

Affirmed.