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    H. G. Kidd v. Frank White.
    1. Instruction—when refusal of, upon right of recovery erroneous. It is error to refuse to instruct the jury that if the plaintiff has proved his case, as alleged in the declaration, by a preponderance of the evidence, he is entitled to recover.
    2. Instruction—when places upon plaintiff excessive burden of proof. An instruction which tells the jury that the plaintiff, to recover, must “prove every material allegation of the case,” is erroneous, in substantially requiring the plaintiff to prove not only the allegations of his declaration, but to disprove the contentions interposed by way of defense.
    Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded.
    Opinion filed December 7, 1907.
    Keeslar & Gunn, for appellant.
    Buckingham & Troup, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an. action in assumpsit by appellant Kidd against appellee White, by which he seeks to recover commissions alleged to be due him for services in effecting the sale of White’s farm. The jury returned a verdict in favor of the defendant and the court rendered judgment upon the same. An appeal from such judgment is prosecuted by Kidd. The declaration charges and the evidence discloses that on December 13, 1905, White and Kidd entered into a written contract under which White employed Kidd to sell the farm, his compensation to be a commission of two per cent, of the selling price. The contract by its terms was to be irrevocable for the period of two months from the date of its execution, and was thereafter to remain in force until revoked in writing. No selling price was specified in the contract but it was understood that all offers were to be submitted to White for his acceptance or otherwise. The evidence shows that after the making of the contract Kidd succeeded in securing an offer from one Nesbitt to pay $100 an acre for the property, which offer was submitted to White and by him refused. On or about February 15, 1906, some further negotiations were had between White and Kidd as the result of which White claims the contract was cancelled and abandoned by mutual consent. Kidd, on the contrary, testified that no such agreement was made. On February 20, 1906, White sold the farm to Nesbitt for $105 per acre, whereupon Kidd instituted the present suit. Whether or not the contract was cancelled by mutual consent was the only controverted question of fact involved in the case. Upon this issue the burden of proof was manifestly upon White. The testimony of the parties was in direct conflict/and that of neither was materially corroborated. In this state of the proof it was imperative that the jury should have been correctly advised as to the rules of evidence applicable. The trial court refused to give the fourth instruction offered by appellant which in effect told the jury that if the plaintiff had proved his case as alleged in the declaration, by a preponderance of the evidence, he was entitled to a verdict. This instruction correctly stated the law and should have been given. Its refusal was rendered especially prejudicial by the giving of the second instruction offered by appellee, which told the jury that the burden was upon the plaintiff “to prove every material allegation in the case.” By the latter instruction the jury may have been led to believe that the plaintiff was bound to prove by the greater weight of the evidence not only the averments of the declaration but also that the contract had not been cancelled and abandoned prior to the sale. While other given instructions correctly stated the law, in view of the closeness of the evidence upon the issue, we are not satisfied that the jury were not misled to the prejudice of appellant.

For the errors indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Mary Kelley.

      Instruction—when, upon question of negligence, erroneous. Held, that • an instruction is erroneous which qualified the terms “care” and “negligence” by the use of the adjectives “slight” and “ordinary.”
    Action in case for personal' injuries. Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded.
    Opinion filed December 7, 1907.
    George B. Gillespie, for appellant; L. H. Hackney, Hamlin & Gillespie and R. L. McKinlay, of counsel.
    H. S. Tanner, F. R. Dundas and J. E. Dyas, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by appellee against appellant for the recovery of damages occasioned by injuries alleged to have been sustained by her through the negligence of certain servants of the appellant company in the operation of one of its trains while approaching a street crossing in the city of Paris, Illinois-; and the further failure to ring the signal bells and lower the gates maintained by it at such crossing. A trial by jury resulted in a verdict and judgment against the defendant for $1,000, to reverse which this appeal is prosecuted. There is evidence in the record tending to show that appellant’s servants were guilty of the negligence charged in the declaration. Whether or not appellee was in the exercise of due care for her own safety at the time she was injured, was the vital and controlling issue involved, and the evidence pertaining thereto was close and conflicting. It was therefore unusually imperative that the jury should have been fully, clearly and accurately instructed as to the exact degree of care required by law on the part of the plaintiff to entitle her to recover. The fifth instruction given at the request of the pláintiff reads as follows :

“The court instructs the jury that while the plaintiff must show by a weight of the evidence that she was in the use of due care at and before the time of the accident, that due care in this instance does not mean the highest degree of care; that due care means the absence of ordinary negligence, that the plaintiff may have heen using due care and at the same time have been guilty of slight negligence.”

This instruction was palpably inaccurate and misleading. The degree of care required by law of the plaintiff was that which a reasonably prudent person would have exercised under like or similar circumstances. "When actionable negligence on the part of the defendant had been established, the only question remaining was whether the plaintiff was at the time she was injured exercising the full degree of care above stated, and, if not, whether such want of care contributed in any degree to her injury. In other words, to warrant a recovery, the injury must have been attributable to the negligence of the defendant, and to that alone. The qualification of the terms “care” and “negligence” by the use of the adjectives “slight” and “ordinary,” could only have tended to confuse and mislead the jury. In C., R. I. & P. Ry. Co. v. Hamler, 215 Ill. 525, the following language from the chapter on Negligence in 21 Am. & Eng. Ency. Law, 459, is quoted with approval:

“While not infrequent references are still found in judicial discussions of the classification of negligence into degrees, the tendency of modem authorities and the weight of th'e best considered cases are now opposed to this view, holding that in every case negligence, however described, is merely a failure to bestow the care and caution which the situation demands, and hence it is more accurate to call it simply negligence. Some decisions even go further, and declare that the classification of negligence into degrees is a matter of pure speculation and of no practical consequence; that it is useless and tends to confusion, and that, in fact, it is unsafe to base any legal decision on distinctions in the degrees of negligence.”

The court then says: ‘ ‘ One of the reasons given by the courts for disregarding supposed distinctions in degrees of negligence is the inability to give the terms ‘ slight, ’ ‘ordinary’ and ‘gross’ any definite meaning and tne impracticability of applying any rule based on the supposed distinction. It is clear that negligence cannot be divided into slight, ordinary and gross by definite lines so that a jury may understand the limits of each and assign each to its own department.”

We regard the giving of this instruction as so clearly prejudicial as to render a reversal of the present judgment and the remandment of the cause necessary. We will therefore refrain from discussing the other defects in the instruction, or the remaining errors assigned on the record.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


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    T. P. Bates v. Samuel R. White.
    1. Contract—when, for conveyance of land, in contravention of statute. A contract to sell and convey a homestead, if not joined in by the wife of the householder, is in contravention of statute.
    2. Damages—when liquidated, cannot he recovered. Liquidated damages cannot be recovered for the breach of a contract in contravention of statutory law.
    Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed.
    Opinion filed December 7, 1907.
    S. P. Robinson and D. D. Donahue, for appellant.
    Barry & Morrissey, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by appellee against appellant for the recovery of liquidated damages claimed by appellee to have accrued to him by reason of the breach by appellant of a certain contract, by the terms of which appellee agreed to sell and appellant to purchase certain real estate described in said contract as follows, to wit: “Lot twenty-two in White Place, now the residence of S. R. White and E. J. Lewis. Also lot one hundred two in said White place, the same being the brick barn property of said S. R. White and E. J. Lewis, together with the appurtenances and easements connected with said properties, situated in the County of McLean in the state of Illinois, for the sum of twelve thousand dollars.” The declaration sets out the contract in Jiaec verba; alleges full performance thereof by the plaintiff and a failure by the defendant on his part. A general demurrer to the declaration was interposed and overruled, whereupon the défendant filed the plea of general issue. A trial was had before the court, without a jury, and resulted in a finding of the issues for the plaintiff and a judgment in his favor for $1,000. To reverse such judgment this appeal is prosecuted by the defendant. The contract further provides, inter alia, that appellee should convey the premises therein described by a good and sufficient warranty deed to be executed by appellee and his wife, which deed was to be delivered to appellant, upon certain specified payments being made, on or before July 21, 1906. It was still further provided that time was the essence of the contract and that if either party should fail or refuse to comply- with its provisions, he should forfeit and pay to the other as liquidated damages the sum of $1,000. The contract was executed by appellee and appellant only. A number of grounds are assigned and urged for reversal, but one of which we deem it necessary to consider. Construing the allegations of the declarations most strongly against the pleader it is obvious that lot 22 in White place was, at the time of the execution of the contract, occupied by appellee as a residence.

It is equally apparent from the requirement of the contract that appellee should furnish a deed to the premises executed by himself and wife, and the further fact that such a deed was afterward tendered to appellant, that he was at the time married. In the absence of evidence to the contrary, the legal presumption will be indulged that his wife then and there resided with him. Kennedy v. Kennedy, 87 Ill. 252; Cooper v. Beers, 143 Ill. 32.

■ Section 1 of the statute upon exemptions in part provides “that every householder having a family, shall be entitled to an estate of homestead to the extent in value of $1,000 in the farm or lot of land and buildings thereon, owned or rightfully possessed by lease or otherwise, and occupied by him or her as a residence,” etc. Rev. Stat., 1905, 1043. Section 4 of the same statute in part provides that “no release, waiver, or conveyance of the estate so exempted, shall be valid, unless the same is in writing, subscribed by said householder and his or her wife or husband, if he or she have one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged, or possession is abandoned or given pursuant to the conveyance,” etc. Ibid, 1044. It does not appear that possession of the premises was abandoned or given pursuant to the contract.

The question is thus presented as to whether or not a contract by a householder who is married, for the sale and conveyance of the homestead is, under the statute of this state, legal and binding, when his wife does not concur and join in such contract.

In Strickel v. Crane, 189 Ill. 220, in discussing the effect of a conveyance of the homestead where both husband and wife did not join in the conveyance the court said: “Such a deed being absolutely void as to the homestead law can it be said its covenants are binding upon the parties with respect to the land included within the homestead? The same contentions were made in Anderson v. Smith, 159 Ill. 93, but without avail. There is not a failure of title in the grantor as is usually understood when there is a breach of such a contract, but there is a failure because there is an attempt to do an act which the law will not permit to be done.”

In Watson v. Doyle, 130 Ill. 415, it is held that a contract for the sale of land occupied by the vendor as a homestead exceeding in value $1,000 is not wholly void and incapable of enforcement, but that a deed made without the wife joining therein is operative to pass the title to all of the property over the value of $1,000.

In the light of the foregoing authorities, we regard the contract in question in so far as the homestead estate was concerned, as clearly in contravention of the statute and therefore void. The consideration for the agreement of the parties to pay the stipulated damages mentioned was the full performance by the respective parties of all the provisions of the contract. The agreement on the part of appellee being in part void and full performance of the same unenforceable, it is obvious that no recovery can be had of the stipulated damages claimed.

The judgment of the Circuit Court will therefore be reversed.

Reversed.


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    Citizens Insurance Company v. Oscar Helbig.
    1. Insurance—effect of verified plea denying execution of policy. The interposition of a verified plea of the general issue casts upon the plaintiff the burden of proving the execution, delivery and acceptance of the policy sued on and that the same was in force at the time of the loss in question.
    2. Insurance—effect of effort to cancel. An effort to cancel a policy of insurance is an implied recognition of the existence and enforeibility of the policy.
    3. Evidence—effect of legal presumptions. Legal presumptions do not, strictly speaking, shift the burden of proof. The only effect of legal presumptions is to create the necessity of evidence to meet the prima facie case thereby created, and which would otherwise prevail.

      Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 23, 1907.
    Barry & Morrissey, for appellant.
    Peirce & Peirce, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit based upon an insurance policy purporting to have been issued by the appellant company to appellee for the sum of $1,500 and covering certain furniture and fixtures located in the Phoenix Hotel at Bloomington which was destroyed by fire on June 19,1900. The declaration sets out the policy in haec verba. The cause is before this court for the third time. Upon the first appeal a judgment in favor of appellant was reversed. Helbig v. Citizens Ins. Co., 108 Ill. App. 624. The cause was again tried and a judgment rendered in favor of appellant, which judgment also was reversed. Helbig v. Citizens Ins. Co., 120 Ill. App. 58. On the last trial the jury returned a verdict in favor of appellee for the sum of $1,959.58, upon which judgment was rendered.

In the opinion of this court rendered upon the second appeal it was held that the only issue involved under the pleadings was whether the policy ever became an executed binding contract between the parties; in other words whether or not appellant delivered and appellee accepted the policy. It was further held that this issue could only be raised by a verified plea. Prior to the last trial the defendant verified its plea of the general issue theretofore filed. One of the grounds urged by appellant for reversal is that the verdict is-manifestly against the weight of the evidence. The views hereinafter expressed render it unnecessary to consider the remaining errors assigned.

The interposition of the verified plea of the general issue cast upon appellee the burden of proving the execution, delivery and acceptance of the policy and that the same was in force at the time of the fire. The evidence established the issue and delivery. Upon the question of acceptance the evidence is substantially as follows:

Appellee testified that the policy in question was the last of four, written for him by the same agent in the appellant company. That the first was issued about the middle of the year 1898, on the same property, and for the same amount, rate and time as the last and expired by its own limitation. That the second was for $2,500, on the hotel building, issued about the first of the year 1899, for three years; that appellee was unible to find this second policy after the fire, and did not know what became of it, but that it was paid by appellant, through its agent Mantle. That the third policy was issued at the expiration of the first, insuring the same furniture and fixtures for the same amount, rate and time, but that appellant refused to accept the risk at one per cent, rate, because of a board partition in one of the walls of the building, and cancelled it a few days after it was issued, by written notice served on appellee; that the cancelled policy was surrendered to the agent, who read appellee a letter from the company offering to accept the risk at an increased rate of 1 % per cent.; and that thereafter appellee ordered the policy in question, which the agent wrote and brought and gave to appellee at his store; and that appellee took the policy and put it in his safe in the store, and then and there paid the agent the premium of $15 in cash. In this appellee was corroborated by his daughter, who testified that she was present and saw the agent deliver the policy to appellee, and saw appellee take money from the till and pay it to the agent; and also by the agent’s account for the month of August, 1899 (Exhibit B—3,), returned to the company October 4, 1899, and wherein the agent charges himself with receipt of the premium. The policy is countersigned by A. Mantle, agent, and recites that “The Citizens Insurance Company of Missouri, in consideration of the stipulations herein named and of Fifteen Dollars,.does insure Oscar Helbig,” etc., was then offered in evidence. Appellee further testified the policy remained in his safe until after the fire; that the building was destroyed and the safe fell into the basement and was not taken from the debris until six or seven days after the fire, and appellee did not succeed in getting it open until the thirteenth day after the fire, and that before the safe was opened, he went to see the agent about the condition of his insurance.

The evidence offered by appellant tends to establish the following facts: That on the morning of the fire appellee went to the home of appellant’s agent, Mantle, who was confined to his room by illness, and sought to have said agent do some “fixing” so that appellee might be able to collect the policy; that the agent replied that it had been cancelled for non-payment of premiums and exhibited to appellee the policy register which showed that such was the fact. That appellee then said that Mantle could fix it if he wanted to, to which Mantle replied that he would not do it for the amount of the policy. That shortly thereafter appellee told' one August Boeker that the company would not recognize the • policy in question, that he was not on good terms with the agent, and requested Boeker to take the policy to the agent, and see if he could make a settlement. That Boeker returned after seeing the agent and told appellee that the agent had said that the premiums on the policy had never been paid, and that the policy had been cancelled. That appellee replied that Mantle owed him more than the premium amounted to, that he owed him for a stove, rent and other things, but never claimed that he had paid the premium. That afterwards the agent went to appellee and asked him what he was going to do about the policy in question, to which he replied that he did not want it as he had no use for it. That at another time, the agent’s son called on appellee and asked for the policy, that appellee stated that he, appellee, was going away but that he would get the policy out of the safe some other time and leave it so that the witness could get it, and that appellee told another witness after the fire, that he had no insurance except $2,500 on the building. Mantle, the agent, died some six months after the fire, and some five months before the present suit was instituted.

By appellee’s first given instruction the jury were told that if appellee was in possession of the policy when the suit was commenced, then the law would presume that the policy was accepted by him, and that evidence would be required to overcome that presumption and before they could find that the policy was not accepted by him, they must find that this presumption had been overcome by the evidence; by the second, that if they believed from the evidence that the defendant’s agent made and delivered the policy to the plaintiff, then the law would presume that the premium was paid and before they could find that it was not paid, they must find that the presumption was overcome by appellant; and by the fifth, that if they believed that the defendant’s agent executed and delivered the policy to the plaintiff, then the law would presume that it was accepted by him, and that they must find it was so accepted unless the presumption has been overcome.

It is insisted that the court- erred in giving the foregoing instructions for the reason that even if payment and acceptance could be presumed from the delivery of the policy, the burden was not thereby shifted to appellant, but that the obligation to establish the truth of the claim rested throughout the trial upon appellee. Such is undoubtedly the law. Traction Co. v. Mee, 218 Ill. 9; Compher v. Browning, 219 Ill. 449. Legal presumptions do not, strictly speaking, shift the burden of proof. The only effect of the same is to create the necessity of evidence to meet the prima facie case thereby created, and which would otherwise prevail. We do not think, however, that the instructions referred to are in conflict with the rule invoked by counsel.

The jury were not told, as contended, that the burden of proof at any time shifted to the defendant. In our former opinion we held that upon the instruction of the policy and proofs of loss, the plaintiff made out a prima facie case, and that, in the absence of proof to the contrary, the presumption was that the insured accepted the policy delivered to him as a binding contract of indemnity but that such presumption was liable to be overcome by proof to the contrary. The verification did not remove such presumption. The only effect of the verification was to permit appellant to introduce evidence to overcome the presumption which it would not have been allowed to do in the absence of a verified plea.

It is further insisted that the verification of the plea of the general issue destroyed all presumption which might be indulged in the absence of such verification. Such is not the law in cases of the present character. The effect of the verification was not to remove all presumptions but to permit appellant to introduce evidence to overcome the same, which it would not have been allowed to do in the absence of a verified plea.

At common law, in cases involving policies of insurance, possession of the policy by the insured establishes a prima facie case of the delivery of the same as a valid and subsisting contract. Elliott on Evidence, sec. 2296; Berliner v. Ins. Co., 121 Calif. 451; Amos v. Ins. Co., 152 Fed. Rep. 192; Coffin v. Ins. Co., 127 Fed. Rep. 555; Rey v. Assurance Society, 44 N. Y. Sup. 745; Quinby v. Ins. Co., 71 Hun, 104; Westerfield v. Ins. Co., 129 Calif. 68.

The receipt and retention of the policy are circumstances tending to show an acceptance of the same and in the absence of explanation will be received as establishing it. N. Y. Life Ins. Co. v. Easton, 69 Ill. App. 479.

The language of the present policy in connection with proof of the delivery of the same, must be held to be an acknowledgment of the receipt of the premium, and under the public policy of the state, in the absence of fraud, the company was estopped to prove, for the purpose of avoiding the policy, that the premium was not in fact paid, but as the plea of general issue had been verified, it was competent, as tending tó show that appellee refused to accept the policy. Helbig v. Ins. Co., 120 Ill. App. 58.

We are therefore of opinion that the instructions complained of correctly stated the presumption arising in favor of appellee under the evidence, notwithstanding the verified plea of general issue was interposed and that the court did not err in giving the same to the jury. ■

We do not think the foregoing views are in conflict with those expressed in Walsh v. Marvel, 130 HI. App. 305, cited by counsel for appellant.

It is finally urged that the judgment should be reversed for the reason that the verdict is manifestly against the weight of the evidence. The testimony of Helbig and his daughter shows that he not only accepted the policy as an executed binding contract, but that he paid the premium in cash. The fact that he retained possession of the policy and that attempts were made by the company to cancel the same, seems to corroborate the claim that it was regarded by both parties as accepted. In canceling, or in any attempt to cancel the policy, the company may be said to have thereby recognized that it was or had been in force, for, as was said in Ins. Co. v. Maguire, 51 Ill. 342: “If there was no policy in existence, how could it be canceled? The very fact of an attempt at cancellation is an admission there was a policy capable of being canceled.” On the other hand, the evidence adduced by the company tends to show that Helbig not only did not pay the premium, but that he never intended to and never did accept the policy, and that he had, prior to the fire, promised to surrender it to the agent of the company. It will be seen that the evidence as to these issues was in serious and irreconcilable conflict. It is not within the province of a court of review to set aside the finding of a jury upon a controverted question of fact, merely because, from the printed record, it appears that the evidence would better have supported'a contrary conclusion. Such duty is imposed only where it clearly and manifestly appears from the record that the finding is contrary to the evidence. Although there is evidence in the case at bar which would have well warranted a contrary conclusion, we do not feel that, under the rule stated, we would be justified in disturbing the finding of the jury, which has been approved by the trial judge.

. We find no errors in the rulings of the court upon the evidence or instructions which could have operated to prejudice appellant, and the judgment will be affirmed.

Affirmed.


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    Litchfield Mining & Power Company v. Margaret J. Beanblossom.
    1. Mines and Miners Act—when owner liable for acts of receiver. The owner of a mine is liable for the acts of a receiver for such mine and also for the acts of the servants of such receiver operating such mine to the same extent as it is liable for its own acts, had it been conducting such mine under the control of a manager appointed by the directors.
    2. Verdict—when not responsive to issues. A verdict is not responsive to the issues in a case where the declaration contained four counts and two of the original plaintiffs were by amendment eliminated therefrom as to but two of such counts.
    Action in case. Error to the Circuit Court of Montgomery county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the May term, 1906.
    Reversed and remanded.
    Opinion filed December 7, 1907.
    Jett & Kinder, for plaintiff in error.
    Harry C. Stuttle and Lane & Cooper, for defendant in error.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case and was originally brought by Margaret J. Beanblossom, Jesse E. Beanblossom and Leota M. Beanblossom against the Litchfield Mining & Power Company, a corporation, for the recovery of damages resulting to them from the death of Pearl Beanblossom, a minor, and the son of Margaret Bean-blossom, and a brother of Jesse E. and Leota M. Bean-blossom, who was killed while in the employ of the defendant company, through the alleged wilful failure of said company to observe the provisions of sections 19 and 21 of the statute relating to mines and miners. Rev. Stat. 1905, pp. 1388-90. A trial by jury resulted in a verdict in favor of the plaintiffs for the sum of $4,000. Pending a motion for a new trial by the defendant, the plaintiffs were permitted to amend the praecipe summons and the first and additional counts of the declaration by striking out the names of Jesse E. and Leota M. Beanblossom as parties plaintiff. The motion for a new trial was overruled and judgment rendered upon the verdict in favor of Margaret J. Beanblossom only. To reverse said judgment this writ is prosecuted by the defendant.

In each count of the declaration as finally amended it is averred that the defendant on March 26, 1897, was engaged in operating a coal mine and that on that day one Kleinbeck was appointed by the United States Circuit Court for-the Southern District of Illinois as receiver of said defendant; that such receivership continued until July 16, 1904, when the bill under which the receiver was appointed was dismissed, the receiver discharged, and the assets turned over to defendant; that during the time of such receivership the receiver had entire management and control of the business of defendant, collected money due it and applied the receipts to the running expenses and the improvement and betterment of the property; that the property was turned back to defendant without reservation at the end of the receivership; that on June 14,1904, the deceased, who was a son of Margaret Beanblossom and a brother of Leota M. and Jesse E. Beanblossom, was employed by said receiver as a trapper in the mine operated by him; that his duties were to open and close a certain door when trips of cars were passing to and from the workings. The first count further avers the duty and wilful failure of the defendant to provide a place of shelter at such doorway to protect the deceased from being injured by the cars while attending to his duties; and that while the deceased was attending to his duties as such trapper, a driver started from the east down the track passing through said doorway with three cars of coal; that the front car jumped the track and the deceased was caught between a bar and some props and, there being no shelter or other means of escape, was pressed against the rib and thereby killed. The second count further avers the duty and wilful failure' of defendant to provide places of refuge, etc., and that, by reason of such wilful failure, there being then and there no place of refuge and not sufficient space between the car and the rib where, he could escape from said car, the deceased was caught between a bar and a prop by a car which jumped the track, while he was in the act of opening the door, and that he died as the result of injuries then received. The third count further avers the duty and wilful failure of the defendant to keep all places of refuge clear of obstructions and to allow no material to be stored or accumulate therein; that the defendant allowed bars, rocks, props and other material to be stored and accumulate therein; that by means thereof the deceased, while in the act of opening a door for the passage of a car of coal, was thrown against the rib of a car which jumped the track and struck said obstructions and was killed thereby.

The additional count charges that the defendant wilfully failed to provide a place of shelter, in consequence of which a car-jumped the track along which it was moving and struck the gob or obstruction in an old entry, or the mouth thereof, so that deceased was caught between a bar and some props and was pressed or mashed against another prop or props. At the close of the plaintiff’s evidence, and also at the close of all the evidence, motions were made to instruct the jury to find the defendant not guilty, which were severally denied. A motion was also entered at the close of the plaintiff’s evidence to exclude the evidence on the ground of a variance between the evidence and the declaration, in that the declaration charged the duty and failure of the defendant to provide a place of shelter on June 14, 1904, while the evidence showed that defendant was not the operator of the mine at that time, but that it was being operated by a receiver, and that the statute only imposes the duty to provide such place of shelter upon the operator. This motion was denied. Motions were likewise made to instruct the jury to find the defendant not guilty under each of the several counts, all of which were denied. A reversal is asked upon the ground that the court erred in denying said motions and in its rulings upon the evidence and instructions. It is also insisted that the verdict is contrary to the evidence and that no recovery can be had against the defendant under the declaration and the evidence in this case; that the damages are excessive, and that the judgment should have been arrested on account of there being one plaintiff in two counts of the declaration and three plaintiffs in the remaining counts.

Plaintiff in error is charged with' a wilful violation of subdivision (f) of section 19 of the Miners Act which is in the following language:

“Trappers, (f) At all principal doorways through which cars are hauled an attendant shall be employed for the purpose of opening and closing said doors when trips of cars are passing to and from the workings. Places of shelter shall be provided at such doorways to protect the attendants from being injured by the cars, while attending to their duties.”

It is also charged with a wilful violation of subdivision (b) of said act, which provides as follows:

“Mule road, (b) On all hauling roads or gangways on which hauling is done by draft animals, or gangways whereon men have to pass to and from their work, places of refuge must be cut in the side wall at least 2y2 feet deep, and not more than twenty yards apart; but such places shall not be required in entries from which rooms are driven at regular intervals not exceeding twenty yards, and wherever there is a clear space of two and one-half feet between the car and the rib, such space shall be deemed sufficient for the safe' passage of men. All places of refuge must be kept clear of obstructions and no material shall be stored nor be allowed to accumulate therein. ’ ’

The evidence shows that one Kleinbeck was appointed receiver of defendant company by the Federal Court March 26, 1897; that he .resigned June 21, 1899; that J. D. Crabb was appointed receiver in his stead and continued to act until July 16, 1904, when he was discharged and the assets of the defendant company turned over to it by him without reservation] that the deceased met his death while the mine was being operated by said Crabb as receiver; that during the existence of said receivership there was expended by said receiver in the improvement and betterment of the property $8,028.23, and other large sums in paying the indebtedness of said company.

In support of the contention that a variance existed between the allegations of the declaration and the evidence adduced to support the same, counsel for appellant argues that inasmuch as the mine was under the exclusive control and management of the receiver at the time of the alleged negligent acts or omissions, and appellant was not only not operating the same, but could not have done so without violating the orders of the court, even if it had so desired, it cannot be held to have been guilty of a wilful failure to comply with the duties imposed by the statute. That the evidence shows that the deceased was a servant of the receiver, that the receiver violated the statute, and that even if it be conceded that a recovery can be had in a case of this character, it was necessary, in order to avoid a variance, that the declaration should have averred a violation of the statute by the receiver and not by appellant. In Bartlett v. Cicero Light Co., 177 Ill. 74, it is held that while a receiver holds the property in his possession as an officer of the court, his appointment does not dissolve the corporation, which still remains in existence and is still clothed with its franchises; that the appointment of the receiver merely gives him the temporary management of the corporation under the direction of the court, instead of leaving it under the direction of the manager appointed by the directors of the corporation; that the corporation’s capacity of being sued is not affected; that the receiver is legally the agent of the company, although under the directions of the court; and that the title to the property is not diverted by his appointment.

It is there further held, that damages for injuries to persons and property during the receivership caused by the torts of the receiver’s agents and employes are classed as a part of the operating expenses of the corporation and thereby paid out of the net income, if that is sufficient, but in the event of a deficiency they will be paid out of the corpus; and that where the net income derived from the business during the receivership is derived from the payment of such operating expenses and applied to the permanent improvement of the property of the corporation and the receiver is afterwards discharged and the property, together with such improvements, is again turned over to. the corporation, in such case the corporation is liable for torts during the receivership to the extent of the net income so applied. This being the law, the appellant corporation was liable for the acts of the receiver to the same degree and extent as it would have been had the mine been under the control of a manager appointed by the directors. To hold otherwise would be to render nugatory the provisions of the statute, in all cases where the servant is injured while in the employ of a receiver and seeks to recover damages therefor after the discharge of such receiver, and to this extent defeat the beneficent' purposes of the statute. It is well settled that a receiver is not personally liable for claims of the present origin and character. If the corporation could not be held responsible, it would follow that the injured servant would be relegated to his remedy at common law, and thus deprived of the benefits of a statute enacted for the especial benefit of miners to promote their safety and well-being." The acts of the receiver were therefore properly and sufficiently averred as those of the corporation, and no variance existed between the allegations and the proofs, as contended.

The evidence shows that Pearl Beanhlossom was killed in the mine of plaintiff in error on June 14, 1904. He left surviving him defendant in error, his mother, and Leota M. Beanblossom and Jesse Beanhlossom, his sister and brother. He lived with his mother and assisted in her support. At the time of his death he was seventeen years of age, in good health and earning $1.14 per day. Prior thereto he had for several months been employed by plaintiff in error as a trapper in its mine, and was stationed at a principal doorway in the east entry of the mine, about 500 feet from the bottom of the shaft. In the doorway was a door some six feet square, which was hung at the side of the entry on a prop. The entry at this point was twelve feet in width and in it was laid a track two feet and six inches wide. The cars used upon such track were four feet wide. In the performance of his duties as trapper, the deceased usually stood on the south side of and close to the end of the door. "When cars approached, he took hold of it on the south side, opened it to the north and then stood a short distance back of the door on the north side, in order to allow the cars to pass. There is evidence tending to show that at the latter point was the mouth of an old entry which had been filled up with dirt, held in place by props six to eight inches in diameter, several of which stood upright and others were placed horizontally back of them. To one of the upright props the door, when opened, was secured by means of an iron hook. Some two feet east of such prop was another and between these props the deceased stood when holding the door open. On the day in question a driver having a train of three cars hauled by a mule and containing about 9,000 pounds of coal arrived at the top of the incline. The deceased went about sixty feet up the track from the door, gave the driver the signal to proceed and then returned to his station. The train then came down the grade at a high rate of speed and struck against one of the props in the mouth of the old entry with such force as to drive the prop against the body of the deceased and crush him so that he died shortly thereafter.

The evidence upon the issue as to whether or not there existed at the doorway a sufficient place of refuge under the statute is in sharp conflict. The evidence adduced by defendant tends to show that there was a space of three by four feet between the rail of the track and the rib of the coal; that the state and county inspectors had visited and inspected the mine several times and had made no complaint of the absence of proper places of refuge; while that adduced by plaintiff tends to show that the space between the rail and the rib was about two and one-half feet in width only; that the props and other objects which were allowed to remain in the mouth of the former entry reduced the space between the rail and the props to from twelve to eighteen inches.

Inasmuch as there is evidence in the record tending to show that the plaintiff in error, through its agent, the receiver, had consciously failed to observe the provisions of the statute in question, as charged in the declaration, the court did not err in refusing to direct a verdict for the defendant.

The jury returned a verdict upon all four counts of the declaration. Two of the original plaintiffs were, by amendment after verdict, eliminated from the cause as to but two of such counts. The verdict and judgment were therefore not responsive to the issues joined.

In such state of the pleadings, the motion in arrest of judgment should have been sustained and the judgment must be reversed and the cause remanded. We shall therefore refrain from further discussion of the evidence.

Reversed and remanded.


author: Mr. Presiding Justice Holdom

text:
    Eagle Brewing Company v. John J. Luckowitz.
    Gen. No. 13,538.
    1. Master and servant—what proof essential to recovery by latter. The rule is that before a servant can recover for injuries caused by defective appliances, he must prove that the appliance was defective, and in what the defect consisted; that the master had, or might have had, in the exercise of ordinary care, notice of such defect, and that the servant neither knew of the defect nor had equal means of knowledge with the master.
    2. Master and servant—when duty of former to furnish reasonably safe place to worlc fulfilled. The duty of the master to furnish a reasonably safe place for a servant to work is fulfilled when he has used ordinary care in furnishing appropriate appliances which are ordinarily safe when properly used. The fact that machinery may be dangerous when improperly used, or that an accident happens to the servant in its use, is not a test of liability.
    3. Res ipsa loquitur—when doctrine of, does not apply. The doctrine res ipsa loquitur does not apply as between master and servant.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Richard W. Weight, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed.
    Opinion filed December 23, 1907.
    Statement by the Court. This is an action on the case for personal injuries. Appellant, as its name indicates, is a brewer of beer, and appellee was chief engineer in its employ at the time of sustaining the injuries for which he seeks compensation in this suit. Stanley S. 'Sisnowski was brew master in charge of the brewery. John Maslowski was assistant engineer and worked at night, while appellee worked during the day. Appellee testified that his duties were to care for all of the machinery and keep it in repair. That in the brew-house there was an engine and an ice machine and also an engine that was kept running all the time. In the engine house there was a pump and a small upright engine which drove the barrel-washers. In another brew house there was a brine pump and a beer pump and an air compressor. There was also a beer pump on the second floor.
    For several weeks before the accident the vats in the cellar were being varnished on the inside. The varnish had to be thoroughly dried. To do this drying a small gas stove placed inside the vat was used. This gas stove had a nipple over which was placed a rubber hose, wrapped with wire, tightly squeezed into the hose with tweezers. This hose ran from the stove to a gas pipe in the cellar outside of the vat. The outside connection was made with a brass coupler.
    On the night preceding the accident the gas burners were burning. Maslowski, the night engineer, was in charge during the night. He died before the trial. The proof failed to show who turned off the gas, but that it was turned off and not burning on the day of the accident until appellee lighted it, is not seriously disputed.
    Appellee’s presence at the scene of the accident came about through the brew master, Sosnowski, requesting him to light the burners at five o’clock Sunday evenning. Appellee’s witness, G-eriseweski, testified that “Sosnowski went into the cellar and I stayed with Luckowitz. Sosnowski was gone probably ten minutes. When he came back we had a glass of beer, and Sosnowski said to Luckowitz, ‘John, will you do me a favor?’ Mr. Luckowitz said ‘Tes, what is it?’ He said, ‘I want you to go into the. cellar and light that gas along about five o’clock; it won’t take you long, about a minute. ’ ’ ’ Before the brew master left he said to appellee, “You won’t forget that, will you?” (R. pp. 93-94.) True to his promise, appellee went to the vat about five o ’clock to light the burners in the stove. He first turned the gas cock in the wall, then put his head and shoulders into the vat, opened the valves in the stove and applied a match to each burner, resulting in the stove being put into condition to dry the varnish. After blowing out the match and throwing it down in the cellar outside of the vat, he again put his head and shoulders into the vat to see whether the lights were still burning, when, without premonition from the odor of the gas, or other warning signal, a violent explosion occurred, injuring appellee severely. The temperature of the vat was maintained at one-half a degree above the freezing point. It appears that seven per cent, of illuminating gas, when mixed with ninety-three per cent, of pure air at the temperature of the vat, is sufficient to cause an explosion. It is conceded appellee was a gas-fitter with a good deal of experience with illuminating gas and in handling gas stoves, gas jets and gas stop cocks.
    The declaration contains four counts, to which the general issue was interposed. The first count avers that appellant negligently failed “to keep, maintain and provide a reasonably safe place for the plaintiff to work, but on the other hand, ordered and directed plaintiff to work about, within, near and by the said vat and gas stove, or appliances therein contained, which were at the time in an unsafe, dangerous and defective condition.” The second count, after averring the duty of appellant to keep and maintain a gas stove with its appliances in a reasonably safe condition, etc., charges that appellant regardless of such duty, carelessly and negligently failed to provide, keep and maintain the said gas stove or appliances in a reasonably safe condition, but on the other hand, carelessly allowed and permitted said gas stove or appliances to be and become and remain in an unsafe and unsuitable condition, so that by reason thereof gas was caused to and did escape and leak from and out of and through said gas stove or appliances, and by reason thereof gas was allowed to and did accumulate in said vat.” The third count is drawn upon the theory that the negligence of appellant rested in failing to warn appellee of the dangers of.lighting the stove. The fourth count charges that through appellant’s negligence gas accumulated in the vat, and that thereby it had violated its duty in not furnishing appellee a reasonably safe place in which to work.
    A trial before the Superior Court with a jury resulted in a verdict and judgment for. $10,000. At the conclusion of appellee’s case and at the conclusion of all the evidence, motions to instruct a verdict and for a new trial were made by appellant and overruled, to which action of the court exceptions were duly preserved.
    O. W. Dynes, for appellant.
    Darrow, Masters & Wilson, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Fifteen assignments of error appear upon the record, but those urged in argument, and a consideration of which we deem sufficient to a disposition of this appeal, are embraced within the contention that the negligence charged is not sustained by the proof, and that the doctrine of res ipsa loquitur has no application under the averments of the declaration or under the proof.

It will be seen from the averments of the declaration that liability is grounded upon certain specific acts of negligence and upon the further contention that the master failed in his duty to furnish the servant with a reasonably safe place in which to do the work he was engaged in doing at the time of the accident. In its' ultimate analysis, in the conditions environing the place of the accident, the negligence charged is that gas was in the vat in sufficient quantity to cause an explosion; so that the liability, if any, arises either from negligence in allowing gas to leak into the vat in sufficient quantity to cause an explosion, or from negligence imputable to appellant from the fact of the presence of gas resulting in an explosion, and reasoning therefrom that the place in which appellee was working was therefore not reasonably safe. In support of these contentions counsel for appellee argue that “whether someone after five o’clock on Saturday put the stove out by stepping on the hose; whether someone tried to turn the gas off but did not tightly close the cock; whether the hose had become torn so that there was a leakage in the vat; whether the couplings were altogether tight, in consequence of which gas leaked into the vat; the fact remains that there was enough gas in the vat to produce an explosion.” In the teeth of the fact that there was an entire absence of proof that any of the appliances specifically mentioned were in any manner defective, improperly constructed, impracticable for use in the service to which they were put, or out of repair to any extent, or leakage of gas into the vat, if such leakage there was, it follows that counsel must rely upon the doctrine of res ipsa loquitur as being sufficient, upon proof of the occurrence of the explosion with resulting injury, to entitle appellee to recover. If such contention is plausible, then the countervailing proof that the gas was not put out by stepping on the hose, because the hose would not collapse and shut off the gas if stepped upon, that the couplings were tight, that the cock was tightly closed, when appellee turned on the gas to light the burners in the stove, would be of no avail to relieve appellant from the liability imputable to it from the fact of the explosion, upon the theory that appellant did not furnish appellee a reasonably safe place in which to work.

The duty of the master to use reasonable care in furnishing a reasonably safe place for his servant to-work in, is too well settled to brook contradiction. It is a fast and firm principle of the law. Difficulties, however, often arise in the application of this legal principle to the particular facts of the case in which it is sought to be invoked. The evidence concededly establishes not only that illuminating gas has a pungent odor, but that there was no odor of gas in the vat either before or at the time of the explosion; nor was there anything else apparent indicating the presence of illuminating gas in the vat. So that it is clear that there was nothing to indicate to any of nature’s senses that the vat was not a reasonably safe place in which to light the burners in the stove; nothing to make known the dangers to either master or servant. The rule is that before a servant can recover for injuries caused by defective appliances he must prove that the appliance was defective and in what the defect consisted; that the master had, or might have had in the exercise of ordinary care, notice of such defect, and that the servant neither knew of the defect nor had not. equal means of knowledge with the master. Cook v. Medaris, 183 Ill. 288.

Appellee, by reason of his practical experience with gas and its appliances, not only had equal means of knowledge of conditions with the master, but means altogether superior, for in these matters he admits that he was well informed.

The duty of the master to furnish a reasonably safe place for the servant to work is fulfilled when he has used reasonable care in furnishing appropriate appliances which are ordinarily safe when properly used. The fact that machinery may be dangerous when improperly used, or that an accident happens to the servant in their use, is not a test of liability. As said in Smith v. Foster, 93 Ill. App. 140: “If the machinery be of ordinary character and snch as can with reasonable care be used without danger to the employe, it is all that can be required from the employer.”

We think the proof establishes that the appliances furnished were reasonably safe when operated with reasonable care. On the other hand, there is nothing in the proof establishing any want of care on the part of the appellant in selecting and maintaining the gas stove, the burners therein or the couplings, cocks, or rubber hose used for conducting gas into the stove, or in either of them, and this exculpates appellant from liability to appellee under the claim that he was not furnished a reasonably safe place in which to work. The crucial question is whether it can be legitimately inferred from the conceded safe condition of the appliances used in conducting gas to the stove in the vat, that the place in question was not a reasonably safe place for appellee to work. The burden of proving that it was not a safe place is upon appellee. He has not done so. Omaha Packing Company v. Murray, 112 Ill. App. 232.

In Texas & Pacific Ry. Co. v. Barrett, 166 U. S. 617, it was held that in an action against a railway company by an injured employe the burden of proof rests on the latter to show that the exploded boiler and engine were improper appliances to be used on the railroad, and that the boiler exploded by reason of the defects charged in the pleading. Huff v. Austin, 46 Ohio St. 386.

The duty imposed upon the master to furnish a safe place in which the servant may work does not mean anything more than an apparently reasonably safe place, providing due care is taken by the servant. The master is not a guarantor of safety. Western Stone Co. v. Muscial, 196 Ill. 382; Consolidated Coal Co. v. Scheller, 42 Ill. App. 619.

Whether the doctrine of res ipsa loquitur can be invoked in an action for personal injury between master and servant is immaterial to our decision of this case. Neither by the averments of the declaration nor the proofs in the record is a case made, regardless of the relation of master and servant existing between the parties, which brings it within the doctrine of res ipsa loquitur.

It may still be regarded as an open question, or at least a doubtful one, whether in any well considered case the maxim res ipsa loquitur, in the restricted sense in which that maxim has received judicial interpretation, has literally been held as applicable to the relation of master and servant. Many expressions are, it is true,, found in certain decisions which would lead, upon cursory examination, to the conclusion that the maxim was successfully invoked; but upon a more careful review, such opinions will disclose that while some of the elements of the maxim are of controlling importance, yet other considerations in an enlargement of and in addition to the rule which the maxim implies, entered as the turning point upon which such decisions are grounded. In other words, there is an essential and clear distinction as to the quantum of proof in passenger and carrier cases and those of master and servant involving claims for personal injuries. In a passenger case proof of the accident itself is all that is sometimes needed in the first instance in order to impose upon the carrier the burden of rebutting the negligence imputed to him by reason of the accident occurring; but in the case of a servant he must go one step farther before negligence is imputable to the master, requiring from him rebutting proof, as in a passenger case. In the case of a servant he cannot wholly rest his case on the assumption of prima facie proof flowing from the fact of the happening of the accident. He must go further and show at least some act of want of care which, with proof of the accident, will be sufficient to impute negligence to the master.

Channel v. Palmer Brick Co., 117 Ga. 106, and same case on second review, reported in 119 Ga. 857, is probably as extreme a case as can be found, extending measurably at least the maxim of res ipsa loquitur to a case of master and servant. But it must be borne in mind in arriving at the exact import of the decisions in this case, that the state of Georgia has a civil code, and that section 2321, the court held, was “a sort of statutory application of the doctrine of res ipsa loquitur, since the statute raises a presumption of negligence from the mere happening of the injury.” Tet the court held; notwithstanding the statute, that there was no absolute presumption of negligence in any case under the code; that in the case of a passenger, more than proof of the accident itself was needed. The court said, in 117 Ga., supra, “Even as to railroads primary proof that the injury was occasioned by the running of the locomotive, cars or other machinery of such company must be submitted before the presumption of negligence arise. * * * In all other instances the plaintiff must establish upon his part all of the facts necessary to show that the defendant is liable, the defendant not being called upon to make any defense until enough testimony has been introduced to show that it owed a duty to the plaintiff, that it negligently failed in its performance, and that in consequence thereof the plaintiff was damaged. Proof of the duty and injury are only parts of the plaintiff’s case. The law raises no presumption whatever as to who was to blame. The burden is on plaintiff to show defendant was negligent. How this negligence is to be proved varies. It may be possible to bring direct evidence as to the cause of the injury and who was responsible therefor; or there may be some direct evidence of some facts, and circumstantial evidence as to others; or purely circumstantial evidence may, by itself, be sufficient to show that defendant was at fault. * * * There is, in neither of these instances, however, any presumption of law, but evidence on which the jury may reason and from which they may draw conclusions as to matters not directly proved. This inference is all of fact and not of law. It is to be reached by the jury and not by the court. "When from these facts an inference from negligence arises, it may be rebutted by the defendant like any other presumption arising from proofs submitted. Kaples v. Orth, 61 Wis. 535.”

Channel procured a reversal of the judgment directed against him at the conclusion of his proof, because there were facts in evidence tending to saddle upon the defendant the negligence charged, such as cracks, bulges and other defects in the arch, rendering it unsafe. Under these circumstances the jury might have found, as they afterwards did, that the master should have discovered these defects in the exercise of ordinary care, while the danger consequent upon their presence might not have been apparent to the servant, who was injured while obeying directions to work under the arch. On the second trial of the Channel case, supra, he recovered a judgment, and while much is said in the court’s opinion about the applicability of the doctrine of res ipsa loquitur in affirming the judgment, still the rules announced in the preceding appeal were adhered to, the court holding that a general charge of negligence was insufficient, but specific acts constituting negligence must be averred and proved. The concluding section of the syllabi in case supra sufficiently indicates the standard of proof which the court required for sustaining the judgment. It is: “In a suit of the character above indicated, evidence of the circumstances attending the transaction which resulted in the injury and constituting the res gestae of the occurrence, may be properly admitted, although such evidence may show other acts of negligence on the part of the defendant than the one alleged. But such evidence will not authorize a recovery unless the specific act of negligence alleged is established to the satisfaction of the jury.”

The sequence of such holding leaves no room permitting the invoking of the maxim res ipsa loquitur as being sufficient to impute negligence and thereby place the burden of rebuttal upon the master in an action for personal injury to his servant. Shearman & Bed-field in discussing this question in their work, on Negligence, vol. 1, sec. 59, say: “It is not that in any case negligence can be assumed from the mere fact of an accident and an injury; but in these cases the surrounding circumstances which are necessarily brought into view by showing how the accident occurred contain, without further proof, sufficient evidence of the defendant’s duty and his neglect to perform it. The fact of the casualty and its attendant circumstances may themselves furnish all the proof of negligence which the injured person is able to offer or that it is necessary to offer.”

This statement of the rule has been approved in many cases. Griffen v. Manice, 166 N. Y. 188.

This court denied, in Omaha Packing Co. v. Murray, 112 Ill. App. 233, that the rule of res ipsa loquitur could be availed of between master and servant. The judgment of the trial court was reversed for failure to give to the jury an instruction requested, by which they were told that before the plaintiff could recover he must establish by proof that the defendant was guilty of the negligence charged, resulting in his injury.

The case at bar is akin to Kranz v. White, 8 Ill. App. 585, which was an explosion case, where the servant sued the master for injuries resulting to him from the effects of the explosion. It was there held that while between the proprietor and a stranger injured in an explosion, proof of the occurrence was sufficient to establish a prima facie case and shift to the proprietor the burden of showing conditions sufficient to exculpate him from the negligence imputable to him because of the fact of the explosion, yet this rule had not been extended so as to apply to a servant operating the machinery. Earle v. Arbogast, 180 Pa. St. 409; Huff v. Austin, supra.

Counsel for appellee contend that this court in MeCormick v. Zakzewski, 121 Ill. App. 26, in terms recognized the rule of res ipsa loquitur as applicable to the case of an employe against his employer for personal injury. We do not so interpret our ruling in that case. That was a case where a lumber pile fell and injured the servant. But so far from the decision resting upon proof of the happening of the accident alone, it was both averred and proved that there was negligence in the improper construction of the lumber pile. We held that the testimony was complete in every particular, proving that the way in which the pile was stacked was dangerous, and consequently in fact negligence of the employer. The usual and ordinary methods were not followed in piling the lumber, but an unsafe method adopted. Diamond Glue Co. v. Wietzychowski, 227 Ill. 338. But as the Supreme Court reversed both these decisions, it is evident that the doctrine of res ipsa loquitur was not applicable.

It is often contended that every accident is the result of negligence attributable to some one. But there are exceptions to this assumption, notwithstanding it is more often true than otherwise. But there are many cases where an injury is a mere accident or casualty, for which, humanly speaking, no one is to blame. Certainly the evidence of appellee is lacking in that probative force sufficient to warrant an assumption that appellant was guilty of any negligent act which caused the explosion. The negligence charged has not been proven. The case of appellee rests upon surmise and conjecture, not only as to what elements caused the explosion, but through what human agency such elements were caused to be present making the explosion possible. As there were no defects in the appliances, it is patent that if the explosion resulted from illuminating gas escaping through the burners of the stove in the vat, it must have been brought about by some one turning on the gas when the stove was not lighted. Whether a fellow employe, or a workman subject to appellee’s orders, or the brew master, who was appellee’s superior as the representative of appellant in the brewery, turned on the gas, the evidence fails to disclose.

Many other questions are argued, but in the view we take of the case they are not important to our decision, and as it would serve no useful purpose to discuss such remaining questions, we refrain from doing so.

It is evident that the‘judgment of the trial court is clearly contrary to the evidence, and equally apparent that the negligence charged is not sustained by the proofs. The judgment of the Superior Court is erroneous, and as we judge appellee submitted all the evidence procurable, which, with all legitimate inferences to be drawn from it, is insufficient to support a verdict and judgment, no benefit will result by remanding the case for another trial. Therefore the judgment of the Superior Court is reversed.

Reversed.


author: Me. Peesidikg Justice Holdom delivered

text:
    Robert E. M. Cowie et al. v. William J. Kinser.
    Gen. No. 13,548.
    1. Verdict—when not disturbed as against the evidence. The probative force of the evidence is primarily for the determination of the jury and where the Appellate Court is unable to say, from the evidence in the record, that the verdict is contrary to its weight, it is not authorized to disturb the same.
    2. Instructions—must not pertain to immaterial issues. Instructions are erroneous and ground for reversal where they call upon the jury to determine matters immaterial to the issues and are calculated to mislead.
    3. Instructions—must be confined to questions of fact. Instructions are erroneous which submit to the jury the determination of questions of law.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed December 23, 1907.

      Zeisler, Farson & Friedman, for appellants.
    J. A. Bloomingston, for appellee.
   Me. Peesidikg Justice Holdom delivered

the opinion of the court.

The action here is assumpsit. The claim is for the purchase price of forty-one shares of stock in the Porter Coinometer Company, which William J. Kinser bought in November, 1902. The money was paid to appellants, who claimed to own the stock. The price of the stock was $1,250. On November 10, 1902, appellee paid $600 and Cowie executed in his own name and that of the other appellants a receipt reading: “Chicago, Ills., November 10, 1902. Received of Mr. William J. Kinser of the city of Chicago, Illinois, the sum of Six hundred dollars * * * being part payment on a total of one thousand two hundred and fifty * * * dollars, the balance of which is to be paid on or before January 10, 1903, in consideration of which we are to turn over to said William J. Kinser forty-one * * * shares of the capital stock of the Porter Coinometer Company, which is capitalized at $25,000. Robert E. M. Cowie for Robert E. M. Cowie, C. H. Bohanon, O. J. Friedman, owners of 167 shares of the P. C. Co.” The remaining $650 was paid in two instalments, $600 January 10, 1903, and $50 February 14, 1903; Mr. Cowie acknowledging the receipt of the $600 check, after reminding Kinser that $50 was still due, wrote: ‘ The stock will be transferred to you as soon as Mr. Bohanon returns from Mexico.”

Appellee frequently demanded delivery of stock to him and wrote several letters to appellants demanding the stock, and at one time threatened suit to recover the purchase price unless delivery was made. Negotiations were also made looking to a settlement, and an offer made by appellee to accept $1,000 in settlement. This offer was not accepted, for the reason assigned by appellants that they were “hard up.” On November 21, 1904, appellee and Ms attorney, Merritt W. Pinckney, since elected a judge of the Circuit Court, made a demand upon Cowie and Bohanon for the forty-one shares of stock, which they promised to deliver the next day to Judge Pinckney at his office. These facts were testified to by appellee and Ms attorney, but Cowie denied the promise to deliver. On the trial the learned judge asked appellants’ counsel if his clients were ready to deliver the stock, and he replied they were not, and would not deliver it. A demand for a return of the money paid was likewise made before suit was commenced. Various pretenses were resorted to by appellants in an attempt to excuse their conduct in failing to deliver the stock, one of which was an agreement by parol contrary to the one set out in the receipt of November 10, 1902. A trial before the court with a jury resulted in a verdict of $1,348.90, upon which judgment was entered.

Appellants urge in argument, as their principal reasons why this court should reverse the judgment of the trial court, that the weight of the evidence is against the contention of appellee, and that the court erred in failing to give the fourth and fifth instructions proffered by appellants.

The probative force of the evidence is primarily for the determination of the jury, and where we are unable to say, from the evidence in the record, that the verdict is contrary to the weight of evidence, we are not authorized to disturb it. The jury saw the witnesses and observed their conduct while upon the witness stand, their manner of testifying, their apparent bias or prejudice, if any was disclosed, their frankness and honesty, or lack of either, if apparent, and were therefore better able to judge than we where credence should be accorded and as to which of the witnesses were most worthy of belief—opportunities not available to a court of review. A careful perusal of the evidence satisfies us that the contentions of appellee find ample support in the proof. He bought the forty-one shares of stock in the Porter Coinometer Company, which appellants in writing represented they owned, and paid to them the agreed price. The stock was represented as their own, and they agreed to assign and deliver certificates representing the forty-one shares. It is not a case of sale of treasury stock, or any other stock, or a subscription to the stock of the corporation, but for stock which appellants claimed to own, and in faith and reliance upon which representation appellee parted with $1,250, which appellants received. In writing and verbally, appellants promised to deliver the stock, and to Judge Pinckney set the day when the promise should be fulfilled.

The arguments and citation of authorities by appellants are pointless as applied to these facts. Appellee was clearly entitled to either one of two things—to have the money paid refunded or the stock bargained and paid for assigned and delivered. Whatever may be the law on the subject of what certificates of stock are evidence of, is beside the question here. Appellee had no dealings with the corporation; there is no privity of contract between them. The corporation is under no obligation whatever to appellee in relation to the forty-one shares of stock. His contract is with appellants, and to appellants only can he look for redress. If the corporation owed appellee the stock, the authorities cited by counsel for appellants would have some application, but in the situation of the parties to this bargain and sale they are not applicable.

There is no harmful error in the rulings of the court, either in the admission or rejection of evidence complained about, prejudicially affecting the rights of appellants.

We think the court properly refused to give the fourth and fifth instructions tendered by appellants. They were both calculated to mislead the jury, by asking them to decide matter immaterial to the issues and not warranted by the evidence. Title.to these forty-one shares owned by appellants could not pass in a way which would bind the corporation, except by appellants indorsing and delivering the certificates representing the stock to appellee. In some aspects these instructions seem to submit questions of law for the decision of the jury. This is contrary to precedent. The law is for the court, and the facts for the jury to decide. Whether title to the stock passed is a question of law, to be determined by the court upon facts found by the jury.

There is no error in this record calling for an interference with the judgment of the Superior Court, and it is therefore affirmed.

Affirmed*


author: Mb. Pbesimiig Justice Holdom

text:
    Staver Carriage Company v. Edith Beaudry.
    Gen. No. 13,557.
    1. Husband and wife—section 8 of Husband and Wife Act; how construed. This statute, being in derogation of the common law, must receive a reasonable construction and cannot be extended by implication to matters not fairly inferable from the words used.
    2. Husband and wife—what not family expense within meaning of section 8 of Husband and Wife Act. A stanhope purchased by a husband primarily for use by him in the discharge of his professional duties as a doctor, notwithstanding the same may occasionally be the subject of use by members of his family, is not a family expense within the meaning of section 8 of the Husband and Wife Act.
    3. Statute of Limitations—what does not toll, in an action under section 8 of the Husband and Wife Act, the running of the Statute of Limitations is not tolled as against the wife by the fact that a judgment had been obtained against her husband.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed December 23, 1907.
    John Gibson Hale, for appellant.
    Theo Proulx, for appellee; Philip E. Fraser, of counsel.
   Mb. Pbesimiig Justice Holdom

delivered the opinion of the court.

From the stipulation of facts under which the cause was tried in the Circuit Court, without a jury, it appears that appellant sold to the husband of appellee, a practicing physician, in the year 1892, a vehicle known as a “stanhope” and a set of harness for $325, taking from Dr. Beaudry an old buggy as part payment to the extent of $50. For the balance due appellant took short term notes from Dr. Beaudry, all of which matured more than ten years before the institution of suit against appellee, no payments being made within that time; that the balance due on said notes was put in judgment against Dr. Beaudry in the court of E. T. Clennon, then a Cook county justice of the peace, September 9,1895. Upon this judgment another judgment was secured before T. D. Hurley, another Cook county justice of the peace, April 16, 1903, for the amount thereof with accrued interest at the statutory rate. Under these facts it was agreed as matter of law, that the present action could not be maintained against appellee at the time of instituting the suit unless by force of the two judgments against Dr. Beau-dry; that if a recovery can be had in this suit it shall be for $104, with five per cent, interest from July 7, 1893. It is also agreed that since commencement of this suit, May 22, 1903, Dr. Beaudry was adjudicated a bankrupt in the District Court of the United States for the Northern District of Illinois, and received from said court a discharge in bankruptcy from all provable debts, of which the claim of appellant against him was one.

From the evidence of one W. N. Beecher it appears that Dr. Beaudry used the stanhope in making professional calls, and that it was likewise at times used by all the family, including appellee.

The circuit judge on this proof entered a finding for appellee and gave judgment for costs against appellant. This appeal is prosecuted upon the theory that the stanhope sold Dr. Beaudry was an expense of the family, to the payment of which, under section 15, chapter 68, B. S., the property of appellee, as the wife of Dr. Beaudry, may be subjected.

The Iowa statute on this subject was tendered as evidence on the contention that the Illinois statute, being virtually a re-enactment of the Iowa statute, the legislature intended that the rule of its construction by the Iowa courts should obtain in Illinois, and that thereby a duty was imposed upon our courts to follow the decisions of the Iowa courts on this subject.

Appellant argues two questions as controlling our decision:

First. Was the stanhope and harness sold to Dr. Beaudry a family expense? and .

Second. Does the statute of limitations run in favor of the wife against the statutory liability so as to constitute a bar as to her while the liability is alive as to the husband?

The record affirmatively shows that the sale was made to the husband of appellee, who was a practitioner of medicine. It further appears that Dr. Beau-dry used the stanhope in the prosecution of his professional calling. The fact that another style of vehicle might be considered better adapted to the use to which it was put, in no manner detracts from the fact that Dr. Beaudry did so use it in making professional calls. But it is said because members of the family were also seen riding in the stanhope, that therefore it was furnished for the family and constituted a family expense. The families of tradesmen and expressmen are at times seen riding in the vehicle used by the legal head of the family in their daily business, yet can it be said that the cost of the equipage, with its motive power and accessories, is a family expense for which the wife, under the statute, may have her property subjected in payment? We think not. To so do would be extending the statute by construction in a manner we hardly think we have the right to assume was intended by the law-making power. If such a construction can be indulged, then the liability of the wife would be extended to include innumerable matters about which she has no voice, and entirely beyond her control. The statute, being in derogation of the common law, must' receive a reasonable construction and cannot Tie extended by implication to matters not fairly inferable from the words used. We are satisfied that the stanhope sold to Dr. Beaudry was primarily intended for use by him in the discharge of his professional duties, and that in the main it was used for that purpose. Appellant evidently did not regard the stanhope as an expense of the family, if we may judge from its actions: It sold the stanhope to Dr. Beaudry, in the first instance ; took its pay in an old buggy, some money and notes from him; sued him in justice court twice, once upon the unpaid notes and again upon the justice judgment, to keep the debt alive as to him. Not until May 22,1903, nearly eleven years after the sale to Dr. Beau-dry, did appellant assert its claim that appellee was liable for the debt. In the light of these actions of appellant and the unexplained, prolonged delay in asserting a claim of liability against appellee, we are compelled to the conclusion that it did not, during this time, regard the sale of the stanhope to Dr. Beaudry to be for the use of the family and consequently a family expense. The purpose of the statute would-seem to have been to make the wife jointly liable with her husband for those family expenses over which she had at least some control; not to extend her liability to the business or professional expenses of her husband. The language of the statute is that “the expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or of either of them, and in relation thereto they may be sued jointly or severally.” Revised Statutes, sec. 15, chap. 68.

The Illinois cases go no farther than to apply the statute as extending to articles used in the family household, regardless of which member of the family appropriated to his or her exclusive use the particular article constituting a family expense. Thus the wife may be held liable for her husband’s personal wardrobe and for family pictures, musical instruments, or other adornments of the household. Hyman v. Harding, 162 Ill. 357. As said in Von Platen v. Krueger, 11 Ill. App. 627: “The only criterion which the statute furnishes is, was the expenditure a family expenditure, was it incurred for, on account of, or to be used by the family?” Apply this criterion of construction to the case at bar, and it follows, from what we have heretofore said, that the stanhope was not bought for the family, but for the use of Dr. Beaudry in his calling as a physician, and is therefore not a family, expense chargeable against appellee jointly with her husband.

In Dodd v. St. John, 22 Ore. 250, the complaint charges that the buggy sued for was sold to St. John for the use of himself and his wife and their minor children; which is wholly contrary to the proof in this record as we construe it. The Oregon case reviews the decisions in that state and in the State of Iowa as to the kind of property supplied which comes within the purview of family expenses, and they on examination prove to be substantially in accord with the Illinois cases. In the case at bar the stanhope was used, at least primarily, in the calling of Dr. Beau-dry, and only incidentally by other members of his family. It was not a family but a professional expense of Dr. Beaudry.

While our view of the case as above expressed makes it unnecessary to decide the other question argued, yet, having examined the same, we will briefly pass upon it.

If the voluntary act of Dr. Beaudry in giving notes for deferred payment had the effect of arresting the running of the Statute of Limitations against appellee until the notes had matured, it still follows that from such maturity the statute again commenced to run as against the liability of appellee. The statute as against appellee could not be arrested by the commencement and prosecution to judgment of a suit against Dr. Beaudry.

In Polly v." Walker, 60 Iowa 86, this precise question arose, and was decided contrary to appellant’s contention. There judgment was obtained against the husband without joining the wife. After the limitation statute had barred the claim against her, it was sought to charge her upon the theory that the judgment against the husband arrested the running of the statute against her, but the court held it did not, saying: “When the- judgment was rendered against the husband for this debt, although it operated to extend the time within which the claim could be collected of him, it was not a contract binding upon the wife, nor in any manner connecting her with it.”

This ruling was followed by the Iowa court in Clark v. Staber, 98 N. W. Rep. 560, and a judgment against the wife refused, she being joined with her husband, against whom a recovery had been obtained in a former suit. Judgment was so denied upon the sole ground that a judgment against the husband did not continue the claim in force against the wife or arrest the running of the Statute of Limitations against her.

Lewis v. Lynch, 61 Ill. App. 476, is an authority to the effect that' either party jointly liable under the statute in question may, by a voluntary act, such as the giving of a note, suspend the operation of the Statute of Limitations against the other, but that no payment of part of the debt by one after the running of the Statute of Limitations would have the effect of reviving the debt as to the other. The rule laid down in Kallenback v. Dickinson, 100 Ill. 427, that one joint debtor could not, by his own agreement, express or implied, extend the time of the running of the Statute of Limitations, or revive a liability already barred by the statute, without the consent of his co-debtor, has never been departed from. The decisions in Iowa not in harmony with this rule were held to be so contrary to the spirit of our laws that they ought not to be adopted. The judgment of the Circuit Court is without error and it is affirmed.

Affirmed.