text:
    George W. Dunshee et al, Appellants, v. Sadie K. Dunshee et al, Appellees.
    Gen. No. 5,769.
    1. Wills, § 468

      —what is power of court of equity on renunciation of will. Where a widow renounces a will a court of equity may take hold of the estate renounced and distribute it equitably among the disappointed legatees.
    2. Wills, § 468*—what are rights of devisees and legatees when will is renounced. Where the renunciation of a will causes loss to devisees, such devisees have no right of contribution from other legatees, and in the absence of statute a court of equity will not rearrange the legacies and devises in such a way as to equalize the losses.
    Appeal from the Circuit Court of Carroll county; the Hon. Oscab E. Heabd, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Dunshee & Mackay, for appellants.
    F. J. Stransky, for appellees.

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

   Mr. Justice Carnes

delivered the opinion of the court.

A bill in chancery was filed by George W. Dunshee, Frank S. Dunshee, John Dunshee, Charles Dunshee and Edna Dunshee Mann, five devisees of Robert Dunshee, deceased, against Sadie K. Dunshee, the widow, E. Harry Carpenter, the executor, and LeRoy Houghton, Harry Houghton, Jane Bennett, Hudson Dunshee and Leonora Nichols, five legatees, making also defendant Richard Groharing a devisee. The main purpose of the bill is to compel the five defendants to contribute from their legacies to'reimburse complainants for losses sustained by the renunciation and election of the widow, and consequent taking by her of one-half the land specifically devised to complainants respectively. The executor, Richard Groharing, and Hudson Dunshee were defaulted for want of answer, the other five defendants filed a general demurrer which was sustained by the court and the bill dismissed for want of equity. Complainants Frank, John and Charles Dunshee bring the case here on appeal.

It appears from the bill as amended that Robert Dunshee died testate in Carroll county, Illinois, March 2, 1910, leaving surviving him no descendant, but leaving a widow and an estate valued at $240,000, about half of which was real estate, and the other half personal property, principally negotiable paper. By his will he gave his wife two hundred acres of farm land worth about $20,000, chattel property on same worth about $1,000 and the sum of $1,000 in money. To the five complainants he devised lands as follows: to his nephew Charles Dunshee farm lands worth $24,000; to his nephew John Dunshee farm lands worth $15,000; to his nephews Frank and George Dunshee and his niece Edna Mann, as tenants in common, farm lands worth $23,000, accompanying the gifts of the several parcels of land with bequests of chattels thereon worth about $1,000. He bequeathed to five defendants personal property as follows: to his nephew LeBoy Houghton $7,500, “to be paid in the form of notes, mortgages and certificates of deposit belonging to my estate,” and the further sum of $7,500, to be paid out of like funds, in trust for Harry Houghton, a grandson of testator’s sister; to his sister Jane Bennett $15,000, “to be paid in the form of notes, mortgages and certificates of deposit belonging to my estate;” to his sister Leonora Nichols $15,000, to be paid from like funds; and to Ms nephew Hudson Dunshee $4,000, “to be paid in cash and notes and certificates of deposit belonging to my estate.” He also devised to defendant Bichard Groharing, who does not appear to be a relative, farm lands of the value of $20,000, with chattels thereon of the value of $1,000. And by a general residuary clause disposed of the rest of his property as follows: to said five complainants, Charles Dunshee, one-third; Frank S. Dunshee, one-ninth; George W. Dunshee, one-ninth; Edna D. Mann, one-ninth; and John Dunshee, one-sixth; and to defendant Hudson Dunshee, one-sixth. Defendant E. Harry Carpenter was named as executor of the will and qualified and is still actmg as such, with the settlement of the estate still pending in the County Court. He was by the will given power to sell real , estate and charged with the care and management of that part of the land not specifically devised, until time of distribution, and the several specific devisees were directed to take immediate possession of the real estate devised to them respectively, together with the chattel property bequeathed thereon, and manage the same as they might see fit, testator stating that he believed there were sufficient notes and mortgages to much more than pay all debts remaining after his decease.

The widow renounced the provisions of the will in her favor and became entitled to one-half of all the personal and real estate after payment of debts; and in a partition proceeding begun by her, her interest in the real estate was severed from that of the several specific devisees. The claims against the estate, which were of a small amount, were fully paid in due course of administration. The real estate devised to, and renounced by the widow, was sold in the partition proceeding and she received one-half the proceeds thereof and the residuary legatees the other half under the provisions of a decree in the case of Dunshee v. Dunshee, which was before the Supreme Court and the opinion reported in 251 Ill. 405.

It was alleged in the bill as originally filed that the residue of the estate left to the residuary legatees was of the value of $60,000, and that the partition proceeding was then pending and undetermined. It is alleged in the amended bill that the partition proceeding is terminated; that the residue of said estate was $15,000, “which said sum was taken by Sadie K. Dunshee on her renunciation” and afterwards stated in the amended bill that “there is a residuary fund of $5,000, now in the hands of said executor,” and it is prayed that the executor be enjoined from making further payments to legatees until the assets of the estate be marshalled and their liability to contribute be fixed and determined and averred “that there is sufficient and ample funds in said residuary estate and in the general legacies aforesaid to meet and pay said widow all her claims in full without recro aching or taking any part of the specific devises. What disposition may have been made in the County Court of the specific bequest of chattel property worth $1,000 to the widow does not appear, neither does it appear whether there was any real estate that passed into the residuary fund, other than the two hundred acres devised to and renounced by the widow. We may infer that the condition of the estáte materially changed after the filing of the original bill and before the filing of the amended bill. The amendment, however, purports to state facts in existence at the time of the filing of the original bill and we will so treat it. It is averred that the residuary legatees received the proceeds of the sale of the land renounced by the widow, whether they received them in the proportion of their respective losses as specific devisees does not appear. Hudson Dunshee was a residuary legatee and not a disappointed devisee. "What part he received is not stated. The bill was not framed for the purpose of obtaining a redistribution of the proceeds of the land renounced by the widow and we do not find in it the necessary allegations upon which to base relief. Appellants in their brief say the bill was dismissed for want of equity “on the ground that personal property could not be compelled to pay or contribute to the loss of real estate by disappointed devisees.”

That it is within the province of. a court of equity to take hold of the estate renounced and distribute it equitably among disappointed legatees is clear on the authority of Lewis v. Sedgwick, 223 Ill. 213; Kincaid v. Moore, 233 Ill. 584; and Wakefield v. Wakefield, 256 Ill. 296. It is clear on the authority of those cases that the doctrine of abatement of legacies is applied in this as in other cases requiring residuary and general legacies to abate before special legacies; and in the Wake-field case, supra, the Court quoted with approval the rule stated in Pomeroy’s Equity Jurisprudence (vol. 1, sec. 517) as follows: “A court of equity will then sequester the benefits intended for the electing beneficiary in order to secure compensation to those persons whom his election disappoints. This rule is applied in many of the American cases cited below to elections made by widows in favor of their dower and against the testamentary provisions, whereby the interests of other devisees were disturbed. Such disappointed devisees are held entitled to compensation out of the benefits intended to be conferred by the will on the widow but which she has rejected.” The Court adds that the rule “has been repeatedly applied by this court.” These cases dispose of appellees’ contention that a court of equity should not take upon itself the administration of an estate and that the property renounced by the widow should not be conserved for the benefit of disappointed legatees and devisees. But it is said that the rule has never been carried further than to allow the court to take hold of the property devised or bequeathed to the widow and renounced by her. The important question in this case is whether it is' within the province of a court of equity after disposing of the property renounced by the widow to rearrange legacies and devises in such way as to equalize the losses, sustained by the renunciation of the will, by legatees and devisees.

Section 79 of our Administration Act (J. & A. jf 128) reads: “In all cases where a widow or surviving husband shall renounce all benefit under the will, and the legacies and bequests therein contained, to other persons, shall, in consequence thereof, become diminished or increased in amount, quantity or value, it shall be the duty of the court, upon settlement of such estate, to abate from or add to such legacies and bequests in such manner as to equalize the loss sustained or advantage derived thereby, in a corresponding ratio to the several amounts of such legacies and bequests, according to the amount or intrinsic value of each. ’ ’ This is section 44 of the Act of 1845 entitled “Wills,” extended to cases of surviving husbands. As then enacted it was made the duty of the “Court of Probate” to “abate from or add to,” etc., instead of the “Court” as used in the present Act. The language is expressly confined to “legacies and bequests.” A reference to other sections of the same Act of 1845 makes it quite clear that the legislature then intended to use those words in their legal sense, excluding devises.

Section 13 of the same Act provided for abatement of devises and legacies to raise a portion for a child born to the testator for whom no provision was made. Section 14 provided when any devisee or legatee being a child or grandchild of the testator shall die before the testator, etc., the issue of such devisee or legatee shall take the estate devised or bequeathed. These and other instances forbid any inference that the Legislature used the words.legacies and bequests in a broad sense intending to include devises; and it cannot be presumed that under the constitution, laws and practices of that time that it intended to confer on courts of probate, jurisdiction to in that manner deal with devises of real estate.

Logan v. Logan, 11 Colo. 44, is cited by counsel for appellants as holding on a statute identical with our Act of 1845, that devises are included in the terms “legacies and bequests.” That court does reach the conclusion claimed, both by a process of reasoning and by reference to Marvin v. Ledwith, 111 Ill. 144, which it treats as deciding the question. We do not see that Marvin v. Ledwith warrants any such conclusion, and we find no other Illinois case supporting that view of the statute,- and are of the opinion that appellants cannot invoke that act in support of their prayer that the five legatees be compelled to contribute from their legacies to idemnify the complainants their losses sustained by the election of the widow.

The inquiry must be whether in the absence of a statute controlling the question a court of equity will not only lay hold of devises and bequests renounced by the widow for the purpose of compensating disappointed devisees and legatees but will also go further and marshal the entire assets of the estate and abate devises, legacies and bequests under principles similar to those controlling the reduction of legacies on account of the insufficiency of the estate of the testator to pay all his debts and legacies in full.

Appellees cite Devecmon v. Kuykendall, 89 Md. 25, as clearly determining the question. That case does hold that the loss to a devisee by the renunciation of the widow results “by operation of law,” and the testator having failed to provide any change or substitution in the event of his widow’s renouncing, the court cannot do it for him. This is certainly not the law in this State, at least so far as the property relinquished is concerned. Gainer v. Gates, 73 Iowa, 149, is also relied on. That was not a case to recover from the legatees or devisees, but from the administrator and heirs; the legatees and devisees were not before the court and the court expressly withheld its opinion as to the rights of such parties if claims were properly made and presented; the right to contribution and the doctrine of compensation was not discussed and the decision was placed upon other grounds. In the notes in L. R. A., vol. 14, page 293, after showing the general trend of authorities to the effect that the property rejected by the widow should be sequestered for the benefit of disappointed legatees, the annotator says that the case of Gainer v. Gates, supra, is one of two cases opposed to that line of authorities and that it is a peculiar ease.

Latta v. Brown, 96 Tenn. 343, 31 L. R. A. 840, is authority for the position that a court will go further by way of compensating disappointed legatees and devisees, in case of election by the widow, than to deal with the property relinquished and that where that is not sufficient to supply the loss, others in the same class must contribute. Other cases to same effect maybe found and the rule is announced by some of the text writers, but an examination of many of the cases relied on to support the text discloses that the decisions -were controlled by statute. The doctrine of abatement of legacies applied to a deficiency of assets caused by the election of the widow is stated in Lewis v. Sedgwick, supra, and it is there held that residuary and general legacies must first abate, but the court was there dealing with personal assets and grounded its decision on section 79 of our Administration Act. (J. & A. ff 128.) Other Illinois cases are found recognizing the same principle resting the decision on that section. Whether in case of -loss to a devisee, occasioned by the election of the widow, other beneficiaries under the will should be treated as in case of devise of land that the testator did not own, and the disappointed devisee left without other remedy than compensation from the property, if any, which the owner of the land might be given by the will and compelled to relinquish; or whether a failure of the devise, because of the election of the widow to take her interest in the land devised instead of the provision in her favor in the will, should be treated as a disarrangement of the entire plan of the testator in distributing his property, and all the assets should be marshalled by a court of equity on the plan of equalization of legacies and bequests adopted by our legislature, is not so far as we can learn determined in this State.- Whether the five defendant legatees, who we are inclined to hold under the language of the gifts to them, have specific legacies, should in the event of the application of such a rule be required to contribute to the exoneration of the disappointed devisees, or to contribute pro rata to the loss, is not clear on any authority we have found. We are of the opinion that the complainant devisees have no right of contribution from the defendant legatees; that they can claim no such right under the statute, or under any decision of our Supreme Court; that other cases so far as cited by counsel or found by us, while not in entire harmony, do not warrant such equalization of devises and legacies, in the absence of a statute authorizing it, and therefore the trial court did not err in holding, as appellants counsel say he did, that the personal property of defendant legatees could not be compelled to pay or contribute to the loss of real estate by disappointed devisees.

There is left no ground for relief in the bill. The real estate relinquished by the widow has been disposed of in the case of Dunshee v. Dunshee before referred to. If there has been any improper disposition of personal property relinquished by her it is not shown by the bill.

The decree of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    Vera Scott, Appellant, v. Emma Sieck et al., Appellees.
    Gen. No. 5,776.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Stephenson county; the Hon. Richaed S. Fabeand, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Bill filed by Emma Siecke against Yera Scott and others to compel defendants to surrender a certificate of bank stock belonging to complainant and held by defendants as collateral security for a debt of complainant’s husband. From a decree for complainant granting the relief prayed, Yera Scott, one of the defendants, appeals.

      Abstract of the Decision.
    Pledges, § 44

      —when evidence sufficient to show agreement to surrender collateral security. On bill filed to compel defendant to surrender a certificate of bank stock belonging to complainant and held by defendant as collateral security for a debt of complainant’s husband, evidence held, sufficient to show a previous agreement by defendant to return the certificate and to sustain a decree granting the relief prayed.
    Pattison & Shaw, for appellant.
    R. J. Carnahan, for appellees.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    Ida Gourley, Appellant, v. Carrie Pierce et al., Appellees.
    Gen. No. 5,779.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Bill by Ida Gourley and others against Carrie Pierce and others to contest a will alleging mental incapacity of the testator and undue influence by the beneficiary defendants. From a decree in favor of defendants, Ida Gourley, one of the complainants, appeals.
    Geo. W. Huston and Arthur H. Shay, for appellant.
    Henman B. Smith and Charles F. Hanson, for appellees.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and ebbob, § 1213 —errors of which appellant cannot complain. Appellant cannot complain of errors not affecting him.

2. Appeal and ebbob, § 370*—when objection that minor was not represented by guardian ad litém, not preserved. Objection for failure of trial court to appoint a guardian ad litem for minor appellees cannot be first raised in a court of review.

3. Appeal and ebbob, § 1213*—when failure of court to appoint guardian ad litem cannot be complained of. Objection for failure of court to appoint a guardian ad litem cannot be considered when record does not show that appellant was injured thereby.

4. Appeal and ebbob, § 1207*—when appellant cannot assign error that appellees were not represented by guardian ad litem. Rule that adult parties cannot invoke the infancy of another party not represented by guardian ad litem to set aside a decree as to them- . selves applies where the appellant participated in the hearing and there was no evidence introduced to support his case.

5. Appeal and ebbob, § 1016*—when objection to manner of giving instructions, not presented. Objection that court instructed the jury orally, not presented for review when the abstract does not furnish any information with reference thereto.

6. Appeal and ebbob, § 1316*—presumption as to instructions. Instructions will be presumed to have been given in proper form and manner.

7. Appeal and ebbob, § 365*—when objection for laeh of proper issues, not preserved. Objection for lack of proper issues on bill to contest a will cannot be first urged on appeal.

8. Appeal and ebbob, § 711*—when error in forcing case to trial, not shown by the record. Error of court in forcing case to trial in the absence of leading counsel is not shown when the record shows that solicitor of record was present at the trial and no request was made for postponement of trial.

9. Appeal and ebbob, § 1437*—when ruling denying application for change of venue, harmless. Ruling of court denying an application for change of venue held harmless when following a ruling denying leave to withdraw the application.

10. Venue, § 12*—when consent of coparties necessary for change of. An application by one complainant for a change of venue is properly denied when not joined in or consented to by the other complainants.


text:
    Gustav Baseleon, Appellee, v. M. M. Baker & Company, Appellant.
    Gen. No. 5,793.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Automobiles and garages, § 4

      —when evidence shows breach of warranty. In an action for breach of a warranty of contract for the sale of an automobile, evidence held sufficient to sustain finding of jury that the machine was purchased of defendant and that the car was defective and not as warranted.
    2. Sales, § 55*—when separate instruments constitute contract. A written order for the sale of an automobile signed by the' seller and a written instrument concerning the equipages signed by the buyer, held to constitute the contract.
    3. Contracts, § 50*—separate instruments. Two instruments may be executed as a part of the same transaction and agreement and must be read and construed as one instrument.
    4. Contracts, § 50*—separate instruments. When a contract makes another contract or writing a part of it, the two are to be construed together.
    Appeal from the County Court of Peoria county; the Hon. Arthur M. Ottman, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action by Gustav Baseleon against M. M. Baker & Company, a corporation, to recover for a breach of warranty in a contract for the sale of an automobile. From a judgment in favor of plaintiff for four hundred dollars, defendant appeals.
    Stevens, Miller & Elliott, for appellant.
    Nathan H. Weiss, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, Appellee, v. Edgar Slaughter, Appellant.
    Gen. No. 5,801.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 1699

      —when error in refusing direction of verdict is waived. Error in refusing a motion to direct a verdict is waived where a defendant proceeds to trial and introduces his defense on the merits.
    2. Appeal and ebbob, § 1506*—when error in admission of evidence is harmless. Admission of evidence in rebuttal that might better have been introduced in chief, held, not prejudicial error, and such admission was not an abuse of the trial court’s discretion.
    3. Bastabds, § 21*—what evidence is admissible. In a bastardy proceeding where the general character of the prosecutrix for chastity and her conduct with other men is not involved in the issues tried, evidence on such questions is not competent unless it shows, or tends to show, that the child was begotten by some other man.
    Appeal from the County Court of Lake county; the Hon. Pebby L. Pebsons, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Rehearing denied October 9, 1913.
    Statement of the Case.
    Bastardy proceeding by The People of the State of Illinois, on complaint of Rebecca Carpenter, against Edgar Slaughter. From a judgment for plaintiff, defendant appeals.
    E. V. Orvis, for appellant.
    Ralph J. Dady, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.


author: Mr. Justice Dibell

text:
    David A. Biggs, Appellee, v. Peoria & Pekin Union Railway Company, Appellant.
    Gen. No. 5,671.
    1. Evidence, § 437

      —when hypothetical question is improper. Where a hypothetical question as to the speed of a railway train assumed that the front wheel of a tender left the rail at a certain point where a mark was found on the rail, such hypothesis was not warranted by the evidence, since it appeared that the wheel ran for some distance on top of the rail and on the ties before the engineer realized that the tender was derailed.
    2. Railroads, § 587*—what is question of fact. . Where tracks of a railroad were being raised several feet and the railroad company issued an order limiting the speed of trains thereon to eight miles an hour, and the evidence as to the speed of a certain engine was conflicting, held, that it was for the jury to decide whether the engine was run at a speed which violated the order.
    3. Railroads, § 578*—what may be considered in determining speed of train. In determining the speed of an engine which was run over tracks in the process of being raised several feet, the jury may consider whether the instincts of self preservation would lead an engineer to run rapidly over such tracks when his employer had notified him not to run over eight miles an hour.
    4. Master and servant, § 518*—what constitutes contributory negligence. Where it was the duty of a foreman to ride on the front end of a tender in order to perform his work, the jury were warranted in finding that such act was not contributory negligence.
    5. Railroads, § 582*—when negligence is shown. Where an engine and tender were derailed while running over tracks which had been raised, there being no excessive speed or obstacle upon the track, the fact of derailment was proof that the track was not in a reasonably safe condition at that place, and that the ballasting had not been properly done, thus causing derailment.
    6. Railroads, § 572*—how cause of injury must be shown. In an action by a foreman who was injured by the derailment of a tender, while riding on such tender, it was not necessary to have a witness swear that in his opinion the derailment was caused by a certain condition, the facts being for the jury.
    7. Master and servant, § 786*—when instruction does not ignore defense. An instruction not only requiring proof of negligence of a defendant and of due care by plaintiff and of his injury but also directing the evidence to be “considered under the instructions of the court as to the law” is not erroneous as omitting the defense of assumption of risk, when other instructions submit such defense.

      8. Master and servant, § 337

      —what risks are not assumed by a servant. Where a railroad company raises tracks, creating extraordinary and dangerous conditions; and issues an order whereby its servants are given to understand that a speed not exceeding eight miles an hour over such tracks is safe, a servant riding on an engine at such rate of speed assumes no risk that the track or ballast is so defective that such speed is dangerous.
    9. Appeal and error, § 864*—what must appear in abstract. A court of review will not search the record to find reasons for reversal not shown by the abstract.
    10. Appeal and error, § 1498*—when exclusion of evidence is harmless. The exclusion of evidence is harmless error where the facts are shown by other evidence.
    11. Damages, § 125*—when not excessive. Allowance of fourteen thousand two hundred and sixty dollars, where a plaintiff lost one leg and was forever incapacitated from performing the duties of foreman of a switching crew, held, not to warrant reversal, it appearing that such plaintiff was earning one hundred and ten dollars, per month and was forty-eight years old when injured, and afterwards was able to obtain employment only at irregular intervals as flagman at a railroad crossing at nine dollars per week.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbatjgh, Judge, presiding. Heard in this court at the April term, 1913. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed August 2, 1913.
    Stevens, Miller & Elliott, for appellant.
    Weil & Bartley, for appellee; Frank J. Quinn, of counsel.

      See Illinios Notes Digest, Yols. XI to XIV, same topic and section number.

      See Illinios Nptes Digest, Veis. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

Appellant operates a railway across the Illinois River at Peoria and thence southeasterly for a number of miles. It is a double track road after it leaves the bridge. Appellant built a new bridge eight feet higher than the old one. It became necessary, in order to get upon the new bridge, to raise the tracks for a long distance. This railway was used by various other railways besides appellant, and one hundred trains per day passed over these tracks. The tracks were raised without stopping the operation of the railroad. The method pursued was as follows: A quantity of material would be placed between the two tracks. One track would be raised by jackscrews a few inches for a distance of one hundred feet or more, and the material would be shoveled in underneath the ties and tamped in with shovels. Earth and gravel were used as the material until the desired height had been nearly reached and then cinders were used for the rest. The accident, which is the subject of this suit, occurred three-quarters of a mile or a mile southeast of the bridge. At that point about five feet had been filled in and about four inches were to be added, and that was to be of cinders, and cinders had been deposited between the tracks to be used in completing the work. The southwesterly was the outbound track. Appellee was foreman of a switching crew which was working with a mogul engine weighing 173 tons. There was a footboard in front of the engine and another behind the tender. The engine was headed towards Peoria but was running backwards on the outbound track. The crew consisted of the foreman, engineer, fireman and two switchmen. On October 21, 1909, appellee, the foreman, was riding on the southeast end of the footboard, which was in front as they were running. The switchmen were on the other end of the same foot-board. Appellee therefore was on the inside next to the cinders which were placed between the two tracks. The tender had eight wheels under it. At the point in question all the wheels of the tender and either one or two drive wheels of the engine left the track. The footboard and the tender were driven into the cinders. The engineer reversed his engine and put on brakes and stopped as quickly as he could after he discovered that they were off the track. Appellee was found imbedded in cinders up to his neck, one of his legs was broken and it was otherwise so seriously injured that upon his removal to a hospital it was found necessary to amputate the leg, which was done. He was laid up for a long time and suffered much pain. He brought this suit to recover damages for said injuries. The first count of the declaration charged that appellent negligently failed to provide a reasonably safe and secure roadbed and to keep the same in a reasonably safe condition, but allowed the same to be unballasted and out of repair and the tracks rough, uneven and out of alignment and misplaced, so that an engine traveling thereon was liable to be derailed, and that by reason of that negligence the engine was derailed and appellee was injured. As to the second count, a verdict for appellant was directed. The third count was similar to the first and also charged that appellant negligently permitted the board and tracks and engine and wheels to become worn, defective and out of repair. Each count charged that appellee was exercising due care, and also that these defects were known to appellant, or in- the exercise of due care might have been known to appellant, and that appellee did not know thereof and, though in the exercise of due care in that behalf, had not equal means of knowledge with appellant of the same. Appellant filed a plea of not guilty and there was a jury trial. The record, certified to be complete, does not seem to contain that verdict, but a new trial was granted on motion of appellant. There was another verdict for appellee and a judgment thereon for $14,260, from which defendant below prosecutes this appeal.

Appellant prior to this accident had issued an order restricting the speed of engines and trains over the tracks so being raised to ten miles per hour and still-another restricting the speed to eight miles per hour. Appellant contends that appellee as foreman had charge of the speed of this engine and that at the time of the accident it was running at twenty-five to thirty miles per hour, in violation of such order, and that it wás derailed because of that excessive speed. The evidence as to the speed of the engine was conflicting. The evidence of appellee and of the engineer and of the fireman placed the speed between five and seven miles per hour and two of them at not exceeding six miles per hour. One of the switchmen placed the speed at ten or fifteen miles per hour. He had been working on the railroad but a few months and stated that his judgment as to the speed of the engine was not very good. The other switchman was not a witness. This was all the testimony as to speed by those who had any personal knowledge of the speed of that engine at that time. Appellant called experts and put to them supposed states of fact, and they testified that this engine must have been running twenty-five of thirty miles per hour. We are of the opinion that the supposed hypothesis was not warranted by the preponderance of the evidence. After the accident a mark was found on the top of the east rail one hundred and four feet hack from the place where the front wheel of the tender stopped, and the question assumed that that mark was where that wheel mounted the rail, and that at the instant that that wheel mounted the rail the engineer used all his power to stop the engine. The evidence however is that the wheel that made that mark ran some distance on top of the rail and after it went down on the outside it ran over the ties some little distance before the engineer realized that the tender was derailed and began trying to stop, and the distance which he ran, after he began using appliances to stop, was much less than the question assumed. Upon this conflicting evidence it was for the jury to decide whether the engine was run at a speed which violated the order. In determining that question they also had a right to consider whether the instincts of self preservation would lead an engineer to run rapidly over tracks in the process of being raised to such great height, when his employer had notified him not to run over eight miles per hour. The verdict is equivalent to a decision by the jury that the speed did not exceed eight miles per hour, and that conclusion was clearly warranted by the evidence.

Appellant suggests that appellee was negligent in riding upon the footboard in front as they were running. It is obvious that if he had been upon the foot-board at the other end or had been upon the engine he would not have been injured. It is clear from the evidence that it was the duty of the foreman and his switchmen to ride upon the front end as they were running, and that such was the custom and the rule upon appellant’s road. They were going to certain yards at Wesley for the purpose of running in upon a switch, coupling the engine to freight cars there and taking those cars to Peoria. The work was to be at that end and it was only from that end that the foreman could properly give the necessary signals to the engineer when he reached the place of work. The jury were warranted in finding that appellee was not guilty of contributory negligence in riding where he did.

By cross-examination of appellee’s witnesses, and by its own witnesses, appellant introduced proof tending to show that the surface of the ground and the tracks were level at that place prior to the accident, and that the conditions appeared as usual and that the work of raising the tracks had been done in the customary manner, and it contends that if the engine was not run at an excessive speed then the cause of the derailing is not shown and the negligence charged in the declaration is not proved, and this is its main contention. The order by appellant not to exceed in speed eight miles per hour in going over these tracks is itself proof that the track was not safe to pass over, and that that fact was known to appellant. If it had been as safe as now contended, appellant would have been running engines and trains over it without any limit of speed. The fact that the wheels of the tender and one or two driving wheels were derailed is proof that it was unsafe to pass over this track at a speed of six or seven miles per hour. If the earth underneath is solid and the ties are in place and the rails are properly spiked to them and are level, and the alignment is reasonably perfect, then the flanges of the wheels will keep the wheels upon the track, and it is impossible that they should leave the track at the speed here shown, unless some obstacle on the ground throws the wheels off, and no such obstacle was present in this case. There was proof by at least one witness for appellant that the earth underneath this track was soft. When inspected after the accident the ties had been shoved along and spikes were out. It may be that in fact the rails were not sufficiently spiked to the ties or there may have been a defect in the ties which caused them to give way. It is quite consistent with the evidence to suppose that the soil had not been equally tamped in all places and therefore gave way more at one place than another under the weight of trains passing over it. There being no excessive speed which might cause the comparatively light tender to jump the track and no obstacle upon the track to throw the tender off, we must regard the fact of the derailment as proof that the track was not in reasonably safe condition at that place and that the ballasting had not been properly done and that this caused the derailment. As the inside or easterly rail was the one over which the flanges of the wheels ran, it is reasonable to suppose that the earth under that side was not as well tamped as under the west end of the ties, and that the easterly end of the ties and the rail upon them sank down on that account and the pressing of the flange against the higher rail forced the lower wheel on the east side to the top of the rail and over the rail. We do not regard it as necessary for appellee, in order to prove his case, to have a witness swear that in his opinion the result was caused by a 'certain particular condition. All the known facts were shown and the jury were entitled to draw their conclusions from the facts. It is also to be remembered that appellee had no duty or opportunity to inspect these ties or rails or to know how thoroughly the work of tamping the earth under the ties had been done.

Appellant argues that the first instruction, given at the request of appellee, ignored the defense of assumed risk and was therefore erroneous. It was to the effect that if the jury believes from the evidence, considered under the instructions of the court as to the law, that appellant was guilty of the negligence charged in some count of the declaration and thereby plaintiff was injured, and that at and before the time of the injury he exercised that care for his personal safety that a reasonably careful person would have exercised, under the existing circumstances, then they should find appellant guilty and assess the damages, etc. Each count of the declaration contained averments which negative assumed risk, and if this instruction had said that if appellee proved his case as alleged in any count of the declaration he could recover, it would have been strictly correct, under James S. Kirk & Co. v. Jajko, 224 Ill. 338; Springfield Boiler Co. v. Parks, 222 Ill. 355, and other like cases. This instruction not only required proof of the negligence of appellant and of due care by plaintiff and of his injury, to make a case, but it also directed the evidence to be “considered under the instructions of the court as to the law.” Instructions were given at the request of appellant which not only stated and applied and submitted the matter of the assumption of risk by appellee, but it stated it much more strongly in favor of appellant than the law is. The question of the negligence of fellow-servants was also covered by an instruction given at the request of appellant. Moreover, if the speed did not exceed eight miles per hour as the jury have found under the instructions, then this injury was not due to any risk assumed by appellee and there was no further question of assumed risk to be submitted to the jury. No doubt, if appellee had been riding over an ordinary roadbed, he would assume the ordinary risks of his position and employment, but appellant had created extraordinary and dangerous conditions and it had by its order authorized appellee to understand that it was safe to run over this track at a speed not exceeding eight miles per hour and appellee had a right to rely upon it, and the proof warranted the conclusion that at this particular point it was not safe to go over the track at that speed, and under such circumstances appellee assumed no risk that the track or ballast was so defective that he could not safely go over it with that speed; Moreover, said instruction No. 1; given at the request of appellee, required appellee to exercise such care for his personal safety as a reasonably prudent person would have exercised under all the existing circumstances, and if the jury had found that he was directing or permitting the speed of this engine in excess of that authorized by the order, they must have found that he was not in the exercise of due care under this instruction. When they found under this instruction that he was in the exercise of due care they must have found that which caused his injury was not the result of anything of which he had assumed the risk. We think instructions Nos. 1 and 2, requested by appellant, and refused, were sufficiently embodied in the given instructions.

Appellant contends that the court erred in not admitting in evidence a "certain application by appellee to appellant, which appellant offered. The document is in fact lengthy and much of it is in fine print, and but a little of it is set out in the abstract. We must go to the record and examine the whole document before we can determine whether it was proper evidence in the case, and courts of review do not search the record to find reasons for reversal not shown by the abstract. Phillips v. Benfield, 249 Ill. 139. It seems that the paper provided that in ease of accident to appellee, appellant should be notified within a certain time. No plea was interposed of any violation of that or of any other provision of the paper, and there was no proof that appellant was not notified, and we.fail to see that the abstract shows that there is anything in this paper which would have benefited appellant if admitted in evidence. It stated that appellee knew that his employment was dangerous, but it is evident that he had that knowledge. Criticism is made upon the rulings of the court upon certain other matters of evidence. We conclude that that which was kept out by these rulings appears elsewhere in the proof and that, the whole record considered, no serious error in that respect is found.

It is argued that the damages are excessive. Appellee was forty-eight years old when injured and was earning about $110 per month. He lost one leg and is forever incapacitated from performing the duties of foreman of a switching crew. He has been able to obtain employment at irregular intervals as flagman at a railroad crossing at $9 per week. This is a difference of over $70 per month and, if he should live to the allotted span of life, the loss of wages would cover much of the verdict. He was also entitled to be reimbursed for his pain and suffering. We would have been better satisfied if the judgment had been somewhat less, but we do not feel warranted in reversing it because of the amount of the damages.

The judgment is therefore affirmed.

Affirmed.


text:
    Alfred M. Swengel, Administrator, Appellee, v. La Salle County Carbon Coal Company, Appellant.
    Gen. No. 5,725.
    1. Death, § 66

      —calculation of damages to mother. Jury in calculating the damages with reference to the loss sustained by the mother of the deceased may take into consideration a reasonable expectation of pecuniary benefit from the continuance of his life, as of grace or favor, if not of right.
    2. Death, § 45*—when evidence that other men were hilled admissible. Evidence that the falling of pipes which killed deceased killed other men at the same instant and that the body of one of the men had to be cut to remove the pipe, held, admissible as part of the res gestae and because it served to show the weight and force with which the pipes struck deceased.
    3. Master and servant, § 378*—when servant does not assume the rish. Servant lowered on an open platform in the shaft of a mine to remove iron pipes, held, not to assume the risk of being injured by them falling upon him when he did not know how the pipes were to be removed before being lowered.
    4. Master and servant, § 626*—evidence admissible to show master was warned of unsafe method of worh. Testimony of a witness that he told the foreman who had charge of the work that his plan was unsafe, held, competent to show that the master was warned of the danger before the work began.
    5. Master and servant, § 627*—when opinions as to manner of doing worh inadmissible. Foreman of defendant cannot testify to his opinion whether the manner of doing the work was a safe and proper way when it is not shown that he had previous experience in doing such work.
    6. Judgments, § 445*—when suit under Mines and Miners’ Act no bar for wrongful death. Judgment in favor of defendant in an action by the mother of the deceased under Mines and Miners’ Act, no bar to an action by administrator for wrongful death under K. S. ch. 70, J. & A. jf 6185.
    7. Appeal and error, § 1514*—when improper remark of counsel not reversible error. Improper remark of counsel in argument to the jury, interrupted before completed, held, not reversible error where objection was sustained and counsel withdrew the remark.
    Appeal from the Circuit Court of La Salle county; the Hon. S. C. Stough, Judge, presiding. Heard in this court at the April term, 1913. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed August 2, 1913.

      McDougall, Chapman & Bayne, for appellant.
    Browne & Wiley and J. L. Murphy, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Hakan Behgston, son of Bengst Hakanson and Bina, his wife, was killed while in the employ of the La Salle County Carbon Coal Company, by the falling of certain iron pipe upon Mm in its shaft. TMs suit was brought to recover for injury to the means of support of his next of kin, and in the original declaration Ms mother was stated to be his only next of kin. The general issue and a special plea were filed. The declaration was afterwards amended by changing the name of the administrator and by charging that the next of kin, injured in their means of support by his death, were his mother and a brother and two sisters. The general issue and special pleas were filed to the amended declaration. The second plea was the statute of limitations and issue was joined upon that and upon the general issue. A demurrer was sustained to the third plea and appellant elected to abide by that plea. The action was brought under chapter 70 of the Revised Statutes (J. & A. 6185), authorizing compensation for causing death by wrongful act, neglect or default, and it is sufficient to say of the declaration that in various counts it charged appellant with negligence in various respects, and is sufficient to sustain the judgment. Plaintiff had a verdict for forty-five hundred dollars, remitted fifteen hundred dollars and had judgment for three thousand dollars, and defendant below appealed therefrom, and we affirmed the judgment, and afterwards granted a rehearing.

Appellant had sunk a shaft over five hundred feet, and had made openings into the coal. The shaft was divided by a partition or bunting across the center of the shaft. Water accumulated in the sump at the bottom of the shaft, and to remove this water a pnmp had been installed at the bottom, and a line of iron pipe about four hundred and fifty feet long had been erected, extending from the pump to the surface of the ground on top. The pipe was four inches in diameter and in sections of from eighteen to twenty-two feet in length. These lengths of pipe were screwed together, and there was a shoulder on one end of each section of pipe. This line of pipe rested on a plank foundation at the bottom of the shaft and was runup on the side of the bunting. The upper one hundred and twenty-five feet and the lower one hundred feet were single strength, while three hundred and fifteen feet in the center was double strength pipe. • The mine had not yet been opened for work, and the ordinary cage of a mine could not be operated on that side of the shaft while the pipe was in that position, and it was necessary to move this pipe into one comer of the shaft. The double strength pipe had been fastened to the side of the bunting by at least four- clamps and the line of pipe was fastened at the top and rested on a plank at the bottom as before stated. The boss, in charge of the work of removing this pipe, fastened chains around the shoulder of the top length of the double strength pipe and attached these chains to the woodwork of the bunting, and then unfastened and took out of the mine the single strength pipe at the top and at the bottom, leaving the double strength pipe in the center with nothing to support it except the chains and the clamps. The boss intended to detach this double strength pipe from the bunting to which it hung, and swing it around into the comer of the shaft. The men who did the work of removing the single strength pipe at the bottom were upon an uncovered platform lowered towards the bottom of the shaft. Bengston was one of these men. Near the bottom of the double strength pipe was a cleat and these men were removing that cleat, under the direction of the boss, when the chain and clamps, the sole support of the double strength pipe, gave way. The several lengths of pipe separated and fell down the shaft and upon this uncovered platform, and a number of men, including Bengston, were killed.

Spowart was the boss in charge of the work. A witness was permitted to testify that Spowart told him how he was going to remove the pipe, and that the witness told Spowart that it was not safe to do it in that way. Spowart represented appellant, and planned and ordered the work, and what was said to Spowart was said to appellant, and this was merely proof that appellant was warned of the danger before the work was begun, and such proof was competent. Appellant was not permitted to have Spowart testify to his opinion whether this was a safe and proper way to remove the pipe. It was not shown that Spowart had ever moved pipe in a shaft before, or that any pipe had ever been moved in that way in a shaft before, and he was not asked if he had ever had any previous experience of that kind, and no foundation was laid for the introduction of expert testimony by Spowart on that subject, and the ruling was correct. The proof showed the killing of other men beside Bengston at that same instant, and that one of these lengths of pipe was driven through the body of another man and into the timbering of the shaft, so that it was necessary to cut the body of that man in two to remove the pipe. This all occurred at the same instant and was a part of the res gestae, and served to show the weight of the pipe and the force with which the pipe struck these men on that platform. We are of the opinion that appellant was not injured by the introduction of this proof, even if the fact that the body of another man had to be cut in two in order to remove the pipe, could have been omitted. We find no reversible error in any other ruling of the court upon the evidence. Appellee’s counsel, in argument to the jury, began a sentence with the statement that American corporations have little regard for human lives. He was interrupted in the midst of the sentence by an objection by appellant, and did not finish the sentence. The court sustained the objection and counsel for appellee withdrew his remark and appellant has no ruling adverse to it on that subject. Appellee’s counsel should have made no reference to other corporations. However, appellant was a corporation and the evidence made it legitimate for appellee’s counsel to argue to the jury that appellant was regardless of human life when it placed Bengston on an uncovered platform below this heavy double strength pipe and then removed the support thereof from underneath. Other remarks by other counsel for appellee were objected to by appellant and the objections were sustained, except in one instance, and we find no warrant for disturbing the verdict in such language of counsel for appellee.

The court gave twenty-three instructions requested by appellant, fully setting forth the law from appellant’s stand point. The thirty-fourth instruction requested by appellant, and refused, was clearly embodied in given instructions. Appellant requested, and the court refused, instruction No. 38, which was framed to tell the jury that Bengston was presumed to have had knowledge of the risks which he took, and the hazards thereof, in that particular employment. There was no evidence that Bengston or the other servants of appellant on the platform, when they were lowered into the bottom of that shaft, knew how the pipe was to be removed, nor that they knew it after they had been' lowered below the double strength pipe, but if they then saw what was being attempted, and the danger, they had no adequate means of escaping. They were in the lower part qf the shaft below the heavy pipe. There is nothing to show that they knew how well or poorly it was supported after the foundation had been removed, and they had no means of leaving the shaft till appellant caused the platform to be lifted. The court properly refused to instruct the jury that Bengston was presumed to have known the risks and the hazards, under those circumstances. The question whether he did know the hazards was submitted to the jury by a given instruction requested by appellant.

It is argued that the damages are excessive. The mother of the deceased lived in Sweden and was quite old. Bengston, her son, was unmarried, and left Sweden when he was about twenty-six years of age. He was accustomed to write to his mother about twice a year and had sent her money several times. The mother testified that before he left Sweden, where she lived, he gave her full power to take what she might need for her support, from his money deposited in a certain savings bank there. Appellant obtained a ruling by the court, striking out this last statement. Having done so, it ought not to complain of a lack of evidence in that regard. The court instructed the jury, at the request of appellant, that no recovery could be had for any pecuniary loss suffered by any brother or sister of deceased, evidently because there was no proof that the brother and sisters named in the amended declaration had in fact received any support from deceased. The mother of deceased might reasonably expect in many ways to derive pecuniary benefit from the continued life of ber son, as of grace and favor, if not of right, at any age of life, and the jury were therefore authorized to calculate the damages with reference to a reasonable expectation of benefit to the mother, as of right or otherwise, from the continuance of his life. City of Chicago v. Keefe, 114 Ill. 222; Ohio & M. Ry. Co. v. Wangelin, 152 Ill. 138; Baltimore & O. S. W. Ry. Co. v. Then, 159 Ill. 535. We are not able to say that the judgment is excessive.

The third plea to the amended declaration alleged that this action was brought to recover for the pecuniary loss suffered by Bina Hakanson, mother of deceased, by reason of Ms death. It averred that she, on July 24, 1908, sued appellant, in the Circuit Court of La Salle county, under the provisions of chapter 93 of the Revised Statutes, relating to “Mines and Miners,” and that on February 10, 1911, on a jury trial, appellant recovered a judgment against her in that action for its costs, which judgment is still in full force; that thereafter she sued out a writ of error to the Appellate Court, where said judgment of the Circuit Court of La Salle county was affirmed, and that thereafter said cause was removed to the Supreme Court upon a certificate of importance and an appeal perfected by said Bina Hakanson, and that said cause is now pending and undetermined in the Supreme Court; that said action was brought to recover damages wMch she had suffered by reason of the death of said Bengston in said mine, which death was, in the declaration in said cause, alleged to have been caused by the wilful violation of said statute relating to mines and miners, and that the death was the same death alleged in the declaration in this cause; and that each of said suits was founded upon the supposed wrong of appellant whereby the death of Bengston was caused, and that each action was to recover damages Bina Hakanson had suffered by the death of said Bengston. Appellant concedes that the demurrer to this plea was properly sustained because it amounts to the general issue. At the trial, the parties stipulated all the facts concerning the former sMt, and appellant offered that stipulation in evidence and the court sustained an objection thereto. The question is thereby presented whether said former suit is a bar to tMs action. The former suit was for a wilful violation by appellant of the statute relating to mines and miners. In that case, the Circuit Court, at the close of all the proof, instructed the jury to find appellant not gmlty, for the reason, as the present record shows, that tMs was not a coal mine, and that the act relating to mines and miners did not apply; and that ruling was affirmed in the Appellate and in the Supreme Courts on the same ground. Our opinion is found in Hakanson v. La Salle County Carbon Coal Co., 168 Ill. App. 147, and since the trial of this cause, our judgment has been affirmed by the Supreme Court under the same title, but at the time of filing this opinion a petition for a rehearing is pending in that cause in that court. The present suit has no reference to that statute, but is brought for the negligence of appellant under the statute relating to personal injuries, being chapter 70 of the Bevised Statutes (J. & A. ¶¶ 6185.) As the other suit was for a wilful violation of a statute and this suit is for common law negligence under another statute, the cause of action is not the same. The mother was plaintiff there, and the administrator is plaintiff here. The administrator could not recover for the cause of action alleged in the first suit, as this death occurred before- the present mining act was adopted, and the mining act then in force gave the cause of action to the widow, etc., in case of death. The mother could not have maintained this suit under chapter 70 in her own name. There is, therefore, no identity of parties. A count for violation of the mining act could not have been maintained in this declaration, because at the time of the death the right of action did not rest in the administrator. A count for common law negligence could not have been added to the declaration in the former suit, because a right of action for common law negligence did not rest in that plaintiff. As there is neither identity of cause of action nor of parties, the former judgment is not a bar. 'The fact that the mother mistook her remedy and brought ■ suit under a statute which was not applicable to the case did not prevent her from afterwards prosecuting, through an administrator, the cause of action which another statute gave to the administrator for. the benefit of the next of kin. We find no reversible error in the record, and the judgment is therefore affirmed.

Affirmed.


text:
    Gus Vogel, Defendant In Error, v. Perry W. Murphy, Executor, Plaintiff in Error.
    Gen. No. 5,747.
    1. Contracts, § 25

      —right to recover for services rendered in the family relation. Where services are rendered, by or to one admitted into the family relation, the law presumes that such services are gratuitous and that the parties do not contemplate payment therefor; hut this presumption may he overcome by proof, either of an express contract or of facts and circumstances which show that both parties, at the time the services were rendered, intended pecuniary recompense.
    2. Executors and administrators, § 214*—when estate liable for board and lodging of deceased. A claim by a husband of a daughter of deceased for hoard and lodging of the deceased, held, established by evidence showing that compensation was intended therefor where accounts had been kept of the time deceased spent with claimant and checks were drawn by deceased in favor of claimant’s wife for hoard.
    3. Executors and administrators, § 269*—when evidence admissible to show an admission of deceased to pay board. Evidence of what claimant’s wife said to deceased concerning payment of hoard, when coupled with his answer, is admissible to show an admission by deceased that he ought to pay board.
    4. Appeal and error, § 460*—when exclusion of evidence not reviewable. Refusal of court to permit a conversation to be introduced in evidence, not reviewable where no offer was made of what was proposed to be proved by it.
    Error to the Circuit Court of McHenry county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    V. S. Lumley, for plaintiff in error.
    David R. Joslyn, for defendant in error; E. H. Waite and Paul J. Donovan, of counsel.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Defendant in error filed a claim against the estate of Andrew W. Murphy, deceased, in the County Court of McHenry county. On a jury trial, the claim was allowed at two hundred and sixty-three dollars. The claimant appealed to the Circuit Court, where, upon a jury trial, the claimant had a judgment for one thousand and thirty-eight dollars, to be paid as a claim of the seventh class. ■ From that judgment the executor prosecutes this writ of error.

The testator died on July 24, 1910, at the age of ninety-three. He was the father of claimant’s wife. From April 4, 1902, until his death, he lived most of the time with claimant, but made occasional visits to other children and spent several months with children in Minnesota. This claim is for his board, lodging and washing, while he was living with claimant’s family. Where services are rendered by or to one admitted into the family as a relative, the presumption of law is that such services are gratuitous and that the parties do not contemplate payment therefor. But this presumption may be overcome by proof, either of an express contract or of facts and circumstances which show that both parties, at the time the services were rendered, intended pecuniary recompense other than that which arises naturally out of the family relation. Heffron v. Brown, 155 Ill. 322. The executor offered in evidence sixteen checks, dated during said period, ranging in amount from one hundred dollars to twelve dollars drawn by the testator in favor of claimant’s wife on the State Bank of Woodstock and paid by said bank on the indorsement of claimant’s wife, upon each of which checks testator had written “for board” or “on board” or “board.” It was also proved that, at the request of claimant, one of claimant’s daughters set down on pieces of paper or in an almanac the date when testator began living in claimant’s family and thereafter kept track in that way of the time which he spent in claimant’s home. The checks, the notations thereon by testator and the keeping of an account of the time testator lived in that family show clearly that the parties intended pecuniary compensation for what the testator there received.

The daughter of claimant, Jennie Vogel, who kept the time on pieces of paper, testified that after her grandfather died she copied these various entries into a book and then threw into the waste basket the pieces of paper and the almanac in which she had originally set down the time. She testified that she had the book in court, that she had not figured it up exactly, but that the time was about fifty-five months; and again that she thought it was fifty-five months all together. The executor argues that this destruction of the original entries rendered incompetent the book into which they were copied. Without regard to the correctness of that position, the book was not offered in evidence nor did the witness say that she had no recollection of the time except from the book. The fair inference from her testimony is that it was her recollection, as refreshed by the book, that the time was about fifty-five months.

Gusta Vogel, another daughter of claimant, testified that testator lived in their house all of the time during the last six or seven years of his life, except a few months he spent in Minnesota; that during that time "she heard two conversations between her father and her grandfather, one while they lived in Woodstock and another at an earlier time when they were on a farm, in each of which her father told her grandfather that he wanted her grandfather to pay his board, and mentioned twenty-five dollars per month, and that her grandfather assented thereto. Jennie Vogel testified that she heard a conversation between her mother and her grandfather, in which her mother told her grandfather that he had to pay board because he was aware that he frequently gave money to his sons, Perry and Asa, and she “saw no reason why he should stay at our home and pay nothing and they get the benefit of that money;” that her mother mentioned twenty-five dollars per month and said she thought that was no more than was right and what he ought to pay, and that he said “all right.” This tended to prove a contract to pay at the rate of twenty-five dollars per month. The dates of these various conversations are not given, hut the conversations would naturally be understood to refer to all the time the testator lived there after he went there to live on April 4, 1902. The checks during the latter part of the time were made out about the middle of each month consecutively and were for twelve dollars each, from which the executor argues that, if there was a contract, it must have been for twelve dollars per month. It may be that such was the fact, or that the testator had changed his mind and concluded to pay-no more per month, or it may be that the testator intended to pay about one-half down and to leave the rest until after his death. The notations on the checks did not say they were in full for board. It was for the jury to consider the amount of these several checks with all the other evidence in determining what the contract was. Asa Murphy and Perry- W. Murphy, the executor, sons of the testator, testified that on the evening after the funeral, at the home of claimant, Asa, who was about to leave for his home in Minnesota, stated that he had no claim against the estate and asked the claimant if he had any claim against the estate and the latter answered “Ñot a cent,” and then asked Perry if he had any claim and he said he had not. Claimant, a competent witness to what occurred after testator’s death, testified that no such questions were asked and that he made no such reply. His two daughters testified that they were present and heard no such conversation and no conversation on the subject of claims against the estate. In this • conflict of testimony on this subject, the verdict of the jury, approved by the trial judge, must stand.

' The executor argues that it was error to permit proof of what claimant’s wife said to the testator and liis reply, unless she was acting as the agent of her husband and making a contract for him at that time. This is a misapprehension of the purpose of the testimony. She could not make any declarations binding upon her husband, but the material thing was not what she said but the answer by the testator. His answer, coupled with her previous declaration, was equivalent to an admission by him that he ought to pay his board and that twenty-five dollars per month would be reasonable. An admission by a party against his interest in a matter material to the controversy is always competent evidence against him, no matter to whom the admission was made. Robbins v. Butler, 24 Ill. 387; Chicago & N. W. Ry. Co. v. Board Sup’rs Boone Co., 44 Ill. 240; Brown v. Calumet River Ry. Co., 125 Ill. 600; Second Borrowers & Investors Bldg. Ass’n v. Cochrane, 103 Ill. App. 29; Jones on Evidence (2d Ed.) sec. 236; 2 Chamberlayne on The Modern Law of Evidence, secs. 1234-1237. As said in the latter authority, the principle is “if a party has chosen to talk about a particular" matter, his statement is evidence against himself.”

The proof showed not only that the testator had ordinary board and lodging and washing in claimant’s home, but also that he was feeble and needed a great deal of care concerning his bed and clothing, because he had bowel trouble, arid his extreme old age was also a matter to be considered. No witness testified as an expert what such services were worth, and it is contended, not only that the evidence of a contract is insufficient, but also that there is no evidence upon which there could be a recovery under a quantum meruit. We are of the opinion that the assent of the testator to the proposition that he ought to pay twenty-five dollars per month for his board was evidence from which the jury might reasonably conclude that what he received in that home was reasonably worth twenty five dollars per month.

The executor testified that he had two conversations with the claimant’s wife in regard to her father living "with her. An objection by claimant to said conversation was sustained. It is argued that this was error. It is obvious that Mrs. Vogel could .make no statement binding upon her husband, unless she was his agent, and the executor strenuously insists that there is no evidence of her agency; but if it were otherwise, no error appears. The executor must make it appear that he was injured by the refusal to permit the conversation to be introduced. He should have made an offer of what he proposed to prove. Not having done so, we cannot know that the testimony proposed would have been material. Anthony Ittner Brick Co. v. Ashby, 198 Ill. 562; Gorza v. Peoria Ry. Co., in Ill. App. 117.

We find no material error in the giving of the instruction complained of. The judgment is affirmed.

Affirmed.


text:
    Adam Rabi Haj, Defendant in Error, v. The American Bottle Company, Plaintiff in Error.
    Gen. No. 5,756.
    1. Attorney and client, § 13

      —method of serving notice to establish attorney’s lien. Notice required to be. given by statute, to enable an attorney to acquire a lien on his client’s cause of action, may be served by mail.
    2. Attorney and client, § 113*—when employment contract by minor, valid. A contract by a minor or by his next friend employing an attorney to prosecute a suit for the minor and to pay him a reasonable compensation fee is valid.
    Error to the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.

      Boys, Osborn & Griggs, for plaintiff in error.
    Maurice T. Moloney, Henry M. Kelly and James J. Conway, pro se, for defendant in error.

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

   Mr. Justice Dibell

delivered the opinion of the court.

The Act of July 1, 1909 (J. & A. If 611) gives attorneys at law a lien upon all causes of action, including claims for unliquidated damages, placed in their hands by their clients for suit or collection, for the amount of any fee agreed upon between such attorneys and their clients, or in the absence of such agreement, for a reasonable fee for the services rendered or to be rendered on account of such causes of action, provided the attorneys shall serve notice in writing on the party against whom their clients have such causes of action, claiming such lien, stating therein the interest they have in such causes of action; and such lien shall attach to any judgment entered, and to any money recovered on account of such causes of action, from the time of service of such notice; and on petition by such attorneys or their clients, any court of competent jurisdiction, on not less than five days ’ notice to the adverse party, shall adjudicate the rights of the parties and enforce the lien. Adam Babi Haj, a minor, and son of Sam Haj, was seriously injured while in the employ of the American Bottle Company at Streator, in La Salle county, and lost his right foot, and it was claimed in his behalf that the injury was due to the negligence of his employer. He and his father, as his next friend, by a written contract, employed James J. Conway, an attorney at Ottawa, to prosecute a claim against his employer for damages for said injury, and after correspondence with said employer looking to a settlement, Conway brought suit in favor of Adam Babi Haj, by Sam Haj his next friend, against the American Bottle Company to recover such damages, and filed a declaration and had service of summons on defendant. Plaintiff was then discharged by his employer, and his father and he removed to Detroit, and thereafter the father had correspondence with Conway. Thereafter the father and afterwards plaintiff returned to Streator, and they arranged a settlement with defendant, without the knowledge of Conway, and went to Ottawa with defendant’s attorney, on a day when they knew a jury would be in attendance. Conway was sent for, but he was absent from the State. A jury was impanelled, defendant caused some proof to be heard, and a verdict for plaintiff for one thousand dollars was rendered and there was judgment thereon, and the same was paid to plaintiff or his father. Thereafter, Conway returned to Ottawa, and had an interview at Streator with his clients and with an officer of defendant Company, concerning Conway’s fees, but no settlement thereof was reached. ■ Conway then filed in said cause a petition to have his lien for attorney’s fees enforced, and alleged therein a contract in writing with his clients and that he had notified defendants thereof and of his lien by a letter, duly mailed and addressed, postage prepaid, to the American Bottle Company at Streator, Illinois, on March 19, 1912, which was the day before the suit was begun. Defendant answered, denying that the alleged contract was binding and denying that defendant received notice thereof by mail. Thereafter the petition was heard by the court, and an order was entered, finding that such written contract was entered into between the plaintiff and his father and Conway, in which it was agreed that Conway’s fees should be one-third of the amount of any judgment recovered or settlement obtained ; and that Conway served notice in writing upon the defendant immediately after the execution of the contract, in which he informed defendant of the substance of the said contract, and that he claimed a lien upon any judgment that might be obtained or settlement that might be had. The court further found that Conway was entitled to a lien on said judgment of one thousand dollars, in the sum of three hundred and thirty-three dollars and thirty-three cents, and entered judgment in his favor against the American Bottle Company therefor. From that order the defendant prosecutes this writ of error, and contends that the contract between Conway and his clients was void, and that service of notice in writing was not given pursuant to the statute.

The minor and his next friend could each make a valid contract for necessaries and could agree to pay what the same were reasonably worth. The general rule as to what are and what are not necessaries for a minor, and when a minor may or may not bind himself therefor, and the jurisdictions in which attorney’s fees for a minor are or are not held to be necessaries, and whether a next friend may bind the minor therefor, are set forth in 22 Cyc. 590-595, and notes thereto. In a well considered opinion in Munson v. Wasliband, 31 Conn. 303, it was held that where the services of an attorney are needed for the personal relief, protection and support of an infant, he may lawfully contract therefor and bind himself to pay for them; and that it would be a reproach to the law to deny him the power to make necessary contracts for the commencement and prosecution of suits, where, under extraordinary circumstances, a suit is the only means by which he can have necessary relief. We are of opinion that, under the special circumstances here disclosed, this suit comes within the purview of necessaries for the minor, and that the minor could make a valid contract, and so could his next friend, whereby to hire an attorney to prosecute the suit and agree to pay him a reasonable compensation, and if a compensation was named in the contract which did not strike the conscience of a court called upon to enforce it as unconscionable, it would be enforceable as to amount unless it appeared from the proof that it was an unreasonable amount. Therefore, we hold that this contract by the minor and by his next friend, by which he employed Conway to prosecute this suit, was valid. By the contract, Conway agreed to institute and prosecute the suit in the Circuit Court, and in case plaintiff recovered judgment, and the defendant should appeal to the Appellate Court, and to the Supreme Court, he agreed to attend to the cause in those courts also. The contract plainly meant that if plaintiff was defeated, Conway would receive nothing, and we do not consider it unconscionable or unreasonable, under such circumstances, that he should have one-third of what might be recovered upon a judgment or by a settlement. The minor is not resisting the enforcement of that contract, nor is he here claiming it is unreasonable. It is true that his father told defendant that Conway had not earned such an amount, but he was absent in Detroit, and did not know how much Conway had done in searching for testimony, examining the law and preparing for trial, and it is obvious that he did not take into account the fact Conway was liable to have to prosecute the suit in three courts and then receive nothing. But let us suppose that the minor and his next friend could not make a valid contract as to the amount Conway should receive for his services. If defendant received the written notice then its officers are presumed to know the law, and they therefore knew that the facts stated in the notice would give Conway a lien for whatever his services were reasonably worth, including the value of his contract to defend in the Appellate and Supreme Courts a favorable judgment in the Circuit Court. We are of opinion the defendant’s officers could not ignore the written notice, if they received it, merely because the law would only enforce the contract for what the services were reasonably worth rather than for the specific share named therein. Neither could said officers assume that the share specified in the contract was unreasonable or would be so held by the courts. We are of opinion that the contract was enforceable against plaintiff for the amount provided therein, in the absence of some testimony tending to reduce the amount to which Conway was entitled.

The service of the written notice, if any, was by mail. It is argued that this is not a proper method of serving a notice in writing, under this statute. In Carney v. Tully, 74 Ill. 375, a suit to enforce a mechanic’s lien, it was held that notice by mail was not sufficient. No reason was given therefor, and the case seems never to have been again referred to by the Supreme Court, but it has been followed in mechanic’s lien cases in Peck v. Hinds, 68 Ill. App. 319, and in Sykes Steel Roofing Co. v. Bernstein, 156 Ill. App. 500. But the principle of those cases has not been extended beyond suits to enforce mechanic’s liens, which are under a statute which is strictly construed. In Meyer v. Krohn, 114 Ill. 574, it is held that proof of mailing notices, properly addressed, is prima facie evidence of their having been received by the party addressed, but that this is a mere presumption of fact which may be rebutted. In Young v. Clapp, 147 Ill. 176, it was held that proof of the mailing of an instrument to certain parties was prima facie evidence that they received it. To the same effect is Bickerdike v. Allen, 157 Ill. 95; Ashley Wire Co. v. Illinois Steel Co., 164 Ill. 149; Clark v. People, 224 Ill. 554. We so held in National Masonic Acc. Ass’n v. Seed, 95 Ill. App. 43, and in Kewanee Nat. Bank v. Ladd, 175 Ill. App. 151. Clearly, if a party required by law to serve a written notice should prove that he prepared a written notice, inclosed it in an envelope, properly addressed it to the party to be notified, placed a proper postage stamp thereon, and put the letter in a mail box of the United States, and should produce proof by a carrier that he took up that particular letter and. placed it in the post office, and by a postal clerk that he placed that particular letter in a mail bag for the post office addressed, and should prove by another postal clerk at the office addressed that he took that particular letter out of the mail bag and delivered it personally to the person to be notified, that would certainly be proof to show that the written document was delivered to the party to be notified, and was therefore served upon him. It is a fact that letters properly addressed, stamped and mailed in the United States to be delivered at another post office in the United States, where the party addressed lives, usually reach their destination. It is conformable to the ordinary practice of the business world to assume, as the law does, prima facie, that a letter so addressed, stamped and mailed has reached the person to whom it is addressed. It is true that by other means, also furnished by the United States, a. receipt for the document could be obtained. If proof is made that a notice was mailed, it is usually impossible for the opposite party to furnish any direct proof that it was not mailed, and the method here followed may therefore not be a desirable method of giving notice; but under the above authorities, we feel bound to hold that it is a lawful method of doing so. It is subject to be rebutted by evidence that the notice was not in fact received, but it is held that the positive denial of its receipt by the person addressed does not necessarily nullify the presumption, but leaves the question for the determination of the court or jury trying the question, with such weight given to the presumption as it may be entitled to, but with the burden of proving receipt of the notice remaining upon the party who asserts it. 16 Cyc. 1070. The alleged notice was sufficient in form, and Conway proved, by himself and two others, its preparation and inclosure in an envelope, addressed to the defendant at Streator, Illinois, the placing of the proper postage thereon, and the placing of the envelope in a box, which was stipulated to be under the exclusive control of the United States. Some of this evidence is criticised as unreasonable and as containing earmarks of having been prepared after-wards, but the trial judge believed the petitioner’s witnesses, and there is no basis upon which we can reject that conclusion. Defendant proved that there were only three men at its office at Streator who had any authority to open mail addressed to defendant, or who ever did in fact open such mail, and that during the month of March, 1912, these three men were on duty, and each of them testified that he received no such notice. It however appeared, from the evidence of one of such officers, that during the arrangement for the settlement with plaintiff he was well aware of the fact that there was a written contract between Gonway and his client, by which Conway was to have one-third of whatever might be recovered by judgment or settlement. This officer testified that he obtained that information from the plaintiff’s father. If the court had held upon this evidence that the presumption that this notice had been received was overcome and that therefore petitioner was not entitled to a lien, we are of opinion that that conclusion from the evidence could not have been disturbed in this court. But the court below found from the evidence that this notice in writing was served upon defendant, in other words, that it was received through the mail. The trial judge saw the witnesses and he may have seen that in.their manner of testifying which convinced him that the knowledge which this officer had of the details of the contract at the time of the settlement with petitioner was in fact obtained by receipt of the written notice. The trial judge possessed opportunities which we do not have to determine the weight and credibility to be attached to the testimony of these officers of defendant that no written notice had been received by them. We are unable to see that we can demonstrate from the evidence that the court should have found the other way. For these reasons, the order of the court below must be affirmed.

Order affirmed.