text:
    First National Bank of Hayward, Wisconsin, Appellee, v. W. E. Gerry and A. R. Krum, Appellants.
    Gen. No. 20,971.
    1. Continuance, § 7

      —when ground alleged insufficient. In an action on a promissory note, the copy of the instrument attached to plaintiff’s pleadings showed an indorsement as stricken out. Defendant’s plea alleged, inter alia, that the indorser in question was the owner of the note and plaintiff was merely the agent and trustee of defendant. The note, when offered in evidence, showed that the indorsement had not been stricken out. Defendant moved for a continuance on the ground of surprise, which motion was overruled. Held, that the denial of the motion was not error.
    2. Pleading, § 253

      —when amendment after verdict properly allowed. In an action on a promissory note, where a copy of the note attached to plaintiff’s pleadings showed an indorsement as having been stricken out, and there was no averment of an indorsement, but the note when offered in evidence showed no indorsement stricken out as shown by such copy, whereupon defendant objected to the admission of the note on the ground of variance, an amendment showing that the note had been indorsed, delivered and protested, held properly allowed after verdict.
    3. Appeal and error, § 550

      —when objection limited to specific grounds. The statement of one or more specific grounds of objection to evidence is a waiver of all other such grounds, for the reason that such an objection is limited to the grounds specified and excludes others not specified.
    4. Appeal and error, § 508

      —when objection to admission of evidence properly overruled. It is not error to overrule an objection to evidence made on several grounds where one of the grounds specified is untenable, for the reason that the court is not bound to separate that part of an objection which is tenable from that which is untenable.
    5. Evidence, § 138

      —when notice to produce notice not essential. The contents of a notice served by one party upon another may be proved without first giving notice to produce the original, especially where the evidence shows that the giving of such notice to produce would be useless.
    6. Bills and notes, § 289

      —when evidence of service of notice of protest by mail sufficient. In an action against an indorser of a promissory note, an objection to evidence of notice of protest sent to defendant held properly overruled, although no demand was first made on defendant to produce the original and although there was evidence that defendant did not receive the notice, where it further appeared that the notice offered in evidence was sent by mail addressed to defendant at a place where he had been in business for ten years prior to the commencement of the action.
    7. Pleading, § 152

      —when affidavit of merits necessary. In an action against the maker and one indorser of-a promissory note where defendants make joint pleas and file a sufficient affidavit of merits therewith, but where such indorser alone files a further plea without filing an affidavit of merits therewith, an order striking such separate plea held not erroneous where the affidavit filed with the joint pleas does not specify the nature of the defense set up by the special plea, as in such ease there is no compliance with the requirement of Hurd’s Rev. St., ch. 110, sec. 55 (J. & A. ¶ 8592), requiring that the affidavit of merits shall specify the nature of the defense.
    8. Appeal and error, § 384

      —when objection to curable defect waived. An objection to an order striking a separate plea filed by a defendant on the ground that plaintiff’s affidavit of claim is defective is unavailable on review, where at the time the order was entered striking such plea the attention of the trial court was not directed to such alleged defect in the affidavit, especially where such defect could have been readily cured if seasonably objected to.
    9. Trial, § 194

      —when direction of verdict proper where different verdict would be set aside. It is not error to refuse a peremptory instruction in favor of both defendants in an action against the maker and one indorser of a promissory note where one defendant has no defense to the action.
    10. Pleading, § 28

      —when competency of evidence not affected by failure to set out in declaration. In an action on a promissory note where plaintiff is indorsee for value, the draft with which plaintiff purchased the note sued on is competent, although not set out in the declaration.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed December 8, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Lyman M. Paine, for appellants.
    Hugh O’Neill, for appellee.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

This is an appeal from a judgment rendered on a promissory note in favor of appellee, hereinafter called the plaintiff, and against appellants, hereinafter called the defendants. The note was for $4,000, dated December 10, 1911, and payable one year after date to the order of the Western Casket & Undertaking Company, at 5 East Eandolph street, Chicago, with interest at six per cent. The defendant Gerry was the maker of the note, and before its delivery to the payee, it was indorsed by the defendant Krum. Following this, it was also indorsed by the payee and by the Western Casket, Company. Plaintiff purchased the note from the Hibernian Banking Association November 1,1911, paying the face value and accrued interest therefor. The declaration consisted of one special count and the common counts. The special count, in the usual form, alleged that after the note was made it was indorsed by the defendant Krum and delivered to the Western Casket & Undertaking Company, and thereafter delivered to the Hibernian Banking Association, and then to the plaintiff. There was no averment that the Casket Company had indorsed the note. Said count further averred that the note, when it became due, was presented to the two defendants at 5 East Randolph street for payment; that payment was refused. Attached to the declaration was a copy of the note, on which the indorsements of the Western Casket & Undertaking Company and the Western Casket Company were stricken out in red ink. There was an affidavit of claim attached to the declaration. Both defendants filed the general issue and three special pleas. The first special plea averred that the plaintiff was not a bona fide holder, having taken the note with notice and knowledge that there was no consideration. The second was substantially the same, but averred in addition that the note was owned by the Western Casket & Undertaking Company, and held by the plaintiff merely as agent and trustee. The third was substantially the same as the first, and in addition averred that the note was only accommodation paper, and. that the Western Casket & Undertaking Company had paid it. The fifth plea, a separate one on behalf of Krum, averred that no notice of dishonor of payment had been given to him, and further that the note had not been presented for payment to him. Attached to these pleas was an affidavit of merits by Gerry, stating that the defendants had a good defense upon the merits to the whole of the demand; that the nature of the defense was that there was no consideration; that the note was an accommodation one; and that the plaintiff was not a bona fide holder, but merely an agent of the payee. This was dated January 13, 1912. Issue was joined on all of the pleas except the special plea of Krum, which, on February 1, 1913, was stricken from the files for failure to file an affidavit of merits, as required by section 55, ch. 110, Rev. St. (J. & A. ¶ 8592), to which order defendant Krum excepted.

On April 13, 1914, the case came on for trial before a judge and a jury. The note was offered in evidence, and it appeared that none of the indorsements had been stricken out, as shown by the copy attached to the declaration. Counsel for the defendants objected on the ground that there was a variance between the said copy and the note offered, and also between the allegations of the declaration and the note. The objection was overruled. The defendants then moved for a continuance on the ground of surprise, which the court overruled. After verdict, the court permitted an amendment to the declaration showing that the note had been indorsed, delivered and protested. The defendants excepted. They now argue that the court committed error in not granting a continuance. In this contention we cannot concur, for it is apparent that under the pleas on file by the defendants, they could not have been surprised by the amendment allowed by the law. Our statutes permitting amendments are very liberal, the purpose being that cases should be decided on their merits. Section 1, ch. 7, (J. & A. ¶ 300) and section 39, ch. 110, Rev. St. (J. & A. ¶ 8576). We hold that the court committed no error in allowing the amendment.

On the trial, the plaintiff offered a notice of protest by a notary public, which stated that the notary, at the request of the Continental & Commercial National Bank, went with the original instrument, a copy of which was attached to the protest, to the office of Gerry, at 5 Bast Randolph street, and demanded payment; that Gerry was not there, and no instructions were left with anyone to pay the note. The protest further recites the mailing of notices to all of the parties, including the defendants Gerry and Krum, Krum’s being mailed in care of the First National Bank. Mr. Rohlf, the president of the plaintiff bank, testified that he had received the protest above mentioned from the Continental & Commercial National Bank of Chicago. When this notice of protest was offered, the defendants objected “because it does not describe the note in controversy, and does not describe the residences of defendants nor their usual places of business. I also object because it is irrelevant, incompetent and immaterial and because it is not set up in the declaration and does not tend to prove any of the issues in the case.”

In this court, counsel argues that the statute making it the duty of notaries to protest negotiable instruments was repealed in 1907; that the law does not authorize a notary to serve a notice of dishonor any differently than if the same were served by any other person; and that the notary’s certificate of protest is not evidence of that fact in relation to inland bills.

It clearly appears from the objections above quoted that none of the objections which he now urges was called to the attention of the trial judge. It is a rule of universal application that an objection is limited to the grounds specified, and does not cover others not specified. Millers’ Nat. Ins. Co. v. Jackson County Milling Co., 60 Ill. App. 224; Hess v. Ferris, 57 Ill. App. 37. The statement of one or more specific grounds of objection to the introduction of evidence is a waiver of all other grounds of objection. Ewen v. Wilbor, 208 Ill. 492; Garrick v. Chamberlain, 97 Ill. 620. In the Ewen case, supra, the court said (p. 502):

“The note had been protested, and when it was offered the plaintiff also offered the notary’s certificate of protest. When this was offered appellant’s counsel said: ‘I object to the protest. The suit is not against Warren Ewen, the maker of the note, but it is against the guarantor, and the protest is not competent evidence.’ The protest was attached to the note and the note was offered in evidence without objection. It is now sought to raise the question that the protest could only be proved by a certified copy of the record required by the statute to be kept by notaries in such matters. That is not the question that was presented to the trial court. The distinction between the objection to evidence because of its competency and because of its sufficiency is well defined. Had the objection now insisted upon been urged at the trial, appellee could doubtless have had the notary make the certificate it is now said was necessary. (Herrick v. Baldwin, 17 Minn. 209), and to allow appellant to urge one objection upon the trial and another in this court would be to place appellee at an unfair advantage. The objection that the certificate of protest related to matter between other parties than those to the suit, and therefore incompetent, which was the one urged, is not within the contention that the certificate was insufficient. Appellant having urged the single and specific objection, thereby waived all other objections. Garrick v. Chamberlain, 97 Ill. 620; Walcott v. Gibbs, id. 118; Newell v. Woolfolk, 91 Hun 211; Lallman v. Hovey, 92 id. 419.”

In the case of Coffen Coal & Copper Co. v. Barry, 56 Ill. App. 587, a general objection was made to the introduction of evidence, the precise point not being called to the attention of the court. Mr. Justice Boggs, in delivering the opinion of the court, said (p: 590):

“Had proper objection been made so that the court and counsel could have known the ground thereof, no doubt such action would have been taken as to have removed all just cause of complaint. It is not permissible to so frame an objection that it will serve to save an exception for the action of a court of review and yet conceal the real complaint from the trial court.”

As has been stated, several objections were urged to the introduction of the document, one being that it did not describe the note. This objection was clearly erroneous, as the note, with all indorsements, was set out in full.

“If an objection is double, and one of the grounds assigned is untenable, error cannot be assigned to the overruling of the objection. No duty rests on the court to separate that part of the objection which is tenable from that which is not.” 38 Cyc. 1390; Campbell v. Hughes, 155 Ala. 591.

If the objections now urged had been made on the trial, they could have been readily obviated by calling the notary. The defendants having specified the grounds of their objection, cannot now be heard to urge other and different grounds.

Similar evidence was held competent in the case of Commonwealth v. King, 150 Mass. 221. That was an indictment against King for running a steamboat without a license. To prove the location of the place in question, a map of the State of Massachusetts was introduced in evidence, over the objection of the defendant. The court said:

“If this was a map of the towns and counties of the Commonwealth published by authority of the Legislature, * * * it was some evidence. * * * The objection taken in argument is that the map .was allowed to prove itself, and that it was not shown to have been published by legislative authority. Whether this was a genuine map * * * as it purported to be, was a preliminary fact, of which, if disputed, some evidence must have been exhibited to the court before the map could be admitted in evidence; but it does not appear that this fact was disputed, or that the objection to the admission of the map was taken on this ground. If such an objection had been taken, the government might, perhaps, have been able to furnish evidence that the map was what it purported to be.” See, also, 2 Jones on Evidence (Horwitz Ed.) sec. 297, and 5 Jones on Evidence (Horwitz Ed.) sec. 893.

Counsel also complains of the admission of a notice sent by the plaintiff to the defendant Krum, advising him that the note had not been paid. The witness testified that he had received through the mail from the Continental & Commercial National Bank, inclosed with the notice of protest above mentioned, three copies of the same, and that he mailed one of them to the defendant Krum, 217 South Western Avenue, Chicago, Illinois. It "was objected that this was not the best evidence. The objection was overruled, and the witness testified that he sent this notice of protest to the defendant Krum. Defendant complains that as no notice had been served on him to produce the original, secondary evidence was not admissible. Defendant Krum testified that he never received the notice, so it is apparent that if the case were reversed on this ground, the serving of the notice would be a useless thing. Furthermore, a party may prove the contents of a notice- served upon the opposite party without first giving notice to produce the original. Brown v. Booth, 66 Ill. 419; Prairie State Loan & Building Ass’n v. Gorrie, 64 Ill. App. 325; Eagle Bank v. Chapin, 3 Pick. (Mass.) 180. In the Chapin case, supra, it was held that the contents of a written notice to an indorser of a promissory note may be proved by parole, without first giving notice to produce such writ-' ing. Defendant Krum further contends that his address is 215 South Western avenue, while the notice was mailed to 217 South Western avenue. A witness testified on behalf of the plaintiff that he had examined the records in the map department of the city hall of Chicago, and that the place of business of Krum was known as 215-217 South Western avenue. The defendant Krum, on cross-examination, testified that he had been in business at 215 South Western avenue for nearly ten years, as president and treasurer of a factory. He described the building and surroundings, and under the facts we have no doubt that the mailing of the notice to the address as stated was sufficient.

Defendant Krum. also contends that the court erred in striking his separate plea from the files: First, because it was in compliance with section 55 of the Practice Act (J. & A. ¶ 8592); and second, no affidavit was required for the reason that the affidavit of plaintiff’s claim purported to be made before a notary public in Wisconsin, and that the court will not presume that such a notary has authority to administer oaths, in the absence of a certificate by said notary, or some showing to that effect. If an affidavit of merits was required, the one filed was not in compliance with section 55, supra. The plea averred that no notice of dishonor by nonpayment of the note was given to him, and that the note was never presented for payment. The affidavit stated that the note was given without consideration, and that the plaintiff was not a bona fide holder. The statute requires that the affidavit shall specify the nature of the defense. This the defendants did, as to all pleas, except the separate plea of Krum. The affidavit was clearly insufficient.

When the defendants filed the affidavit of merits, which was good except as to the last plea, they did so on the theory that the affidavit of plaintiff’s claim was sufficient, and when the court struck the special plea filed by defendant Krum from the record, no point was made that the affidavit attached to plaintiff’s claim was made before a foreign notary. If such complaint had been made, it could have been readily cured. The order striking the plea from the files was made February 1, 1913. The case was not called for trial for more than a year afterwards. At no time was the court’s attention called to any insufficiency in the affidavit attached to plaintiff’s claim. It appears to have been first raised in this court. Where a party takes a position in the trial court, he cannot, after being defeated, shift his position in a court of review. Especially is this true where the defect could have been easily cured. Courts of review are instituted for the purpose of correcting errors committed by the trial courts, and as the point was not called to the court’s attention, it cannot now be made. The defendant Gerry testified that he signed the note, as did likewise the defendant Krum, and it was practically conceded on the oral argument that Gerry had no defense. No testimony was offered to sustain the second, third and fourth pleas, which averred that there was no consideration; that the plaintiff was not a bona fide holder, and that the note had been paid.

Complaint is made as to the giving of certain instructions at the instance of the plaintiff, and also the refusal of the court to give a peremptory instruction for both defendants. Counsel concedes that the record shows no defense as to Gerry. Manifestly, there was no error in refusing the peremptory instruction, as under the evidence no verdict could stand, except one for the plaintiff. It is unnecessary to discuss this contention further.

Counsel objects to the introduction of the draft in evidence, because it was not declared on in the declaration. This suit was on a note. The defendants’ plea averred that no consideration was given. Plaintiff introduced the draft with which he purchased the note. It is elementary that the evidence need not be set out in the declaration.

We have carefully considered all the other reasons assigned as error, and hold them to be without merit.

There being no substantial error in the record, the judgment of the Circuit Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    May C. Delaney, Appellant, v. McNeil & Higgins Company and Charles I. Ross, Trustee, Appellees.
    Gen. No. 20,980.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed December 8, 1915.
    Rehearing denied December 21, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by May C. Delaney, complainant, against McNeil & Higgins Company, a corporation, and Charles I. Boss, trustee, defendants, in the Superior Court of Cook county, praying an accounting. From a decree dismissing the bill for want of equity and granting the prayer of the cross-bill, complainant appeals.
    The facts are these: May C. Delaney, the complainant, on March 3, 1911, acquired a grocery and market from her brother-in-law, Patrick J. Delaney, a brother of her husband. The complainant’s husband, George M. Delaney, had been conducting a store for a number of years prior to March 3, 1911, and purchased supplies from McNeil’& Higgins Company, one of the defendants. He had been in ill health, and in order to convey his property and business to his wife, without going through the Probate Court, he transferred them to his brother, Patrick J. Delaney, and on the same day, March 3, 1911, Patrick J. Delaney transferred, through proper instruments of conveyance, all the property to the complainant. At the time of the transfer, George M. Delaney was indebted to the defendant in the sum of $2,187.39. A few days after the transfer, complainant began to' conduct the business, and on March 9, 1911, began purchasing merchandise from the defendant, and continued so to do regularly until January, 1913. About March 9, 1911, a representative of the defendant called up the complainant on the telephone at her place of business, and inquired if she had taken over her husband’s business. He testified that the person answering the telephone stated that she was Mrs. Delaney, and that she had taken over her husband’s property and business. (Her husband died June 11, 1911.) She then promised to pay the balance due from her husband to the defendant, not all at once, but some every month, and that she would send a check in a short time. Complainant testified that she never talked with the witness over the telephone about this matter. The witness did not recognize the voice, but afterwards, having met the complainant several times, he testified that it was the complainant with whom he talked on the telephone. A few days afterwards, complainant sent defendant a check for $500 on account. At that time she had purchased but $200 worth of merchandise from the defendant. The account was carried on the books of the defendant all the time in the name of complainant’s husband, and every month statements were sent to her showing the balance due, and in each statement was included the balance due from her husband. The defendant had been pressing for payment from time to time, and on January 15, 1913, complainant went to defendant’s place of business, and executed a note for $3,577, due ninety days after date, with interest at seven per cent., and secured the same by a trust deed on the real estate in question. This amount was the balance due at that date for all goods purchased by complainant or her husband from the defendant. At that time there was a balance due on account of the goods purchased by the complainant from the time she conducted the business, in excess of what she had paid, of $1,347.54. Complainant contends that she at no time promised to pay the debt of her husband, and that she did not know she was signing a trust deed and note, but thought it was a schedule of her assets; that the note and trust deed were obtained from her by means of fraud and deceit.

      Abstract of the Decision.
    1. Evidence, § 173

      —when telephone conversations admissible. Telephone conversations held between a witness and one who answers the telephone in another’s place of business are competent although the voice of the person speaking cannot be recognized by the witness, for the reason that one who places himself in connection with the telephone system through an instrument installed in his place of-business invites communication with him through that channel in regard to his business, such conversations being competent on the same ground as interviews between a customer and an unknown clerk in charge of a shop in regard to the business carried on there.
    On October 23, 1913, she filed her bill of. complaint in the Superior Court against the defendant. The bill prayed for an accounting, alleging that she had tendered the balance due defendant, $1,347.54, which was refused, and asking that the note and deed be delivered up and canceled. The defendant answered, denying fraud and deceit, and averring that all matters were fully explained to and understood by the complainant. On January 15, 1913, the defendant filed a cross-bill, asking that the mortgage be foreclosed.
    The original, bill came on for hearing before the chancellor, who found that the charge of fraud and deceit had not been sustained; that the equities were with the defendant, and decreed that unless the amount due the defendant on the note was paid within twenty days, the defendant would be entitled to proceed with the hearing on its cross-bill. The payment not having been made, evidence was heard in open court on the cross-bill and answer.
    George V. McIntyre, for appellant.
    Mather & Hutson, for appellees; William A. Sheehan, of counsel.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

2. Frauds, statute of, § 2 —when Statute of Frauds not applicable to instrument in writing. Where the instrument sought to be enforced is in writing the Statute of Frauds has no application, though such instrument may have been given in pursuance of an oral agreement to pay the debt of another.

3. Fraud, § 115 —when evidence insufficient to establish fraud. In a bill seeking relief against a note and trust deed on the ground of fraud, a finding that there was no fraud held sustained by the evidence.

4. Appeal and error, § 1395 —when findings of chancellor will not be disturbed. Where a bill seeks relief against a note and trust deed on the ground of fraud and the evidence as to fraud is conflicting, the finding of the chancellor, after seeing and hearing the witnesses, that the allegation of fraud was not sustained by the evidence will not be set aside by a court of review unless manifestly against the weight of the evidence.

5. Fraud, § 112 —sufficiency of evidence to establish fraud. Where fraud is relied on it must be proved by clear and convincing evidence.

6. Fraud, § 87 —not presumed. Fraud is never presumed.

7. Cancellation of instruments, § 37 —when trust deed will not be canceled, but enforced on cross-bill. Where a bill sought cancellation of a note and trust deed and where a cross-bill prayed the enforcement of the trust deed, a decree that unless complainant within twenty days paid the amount of the note secured by the trust deed sought to be enforced defendant might go to hearing on its cross-bill, held not inequitable although the debt for which such note was given was in part the debt of another, it appearing that complainant had received a gift of such other person’s business, which she thereafter carried on for her own benefit, and it also appearing that in consideration of executing the note complainant had been given further time in which to make payment, and that further credit had also been extended to her in consideration thereof.


text:
    William K. Pattison, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,017.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed December 8, 1915.
    Rehearing denied December 21, 1915.

      Certiorari denied by Supreme Court (making opinion final).

      Statement of the Case.
    Action by William K. Pattison, as administrator of the estate of Andrew Ziehler, deceased, plaintiff, against the Chicago City Bailway Company, defendant, in the Superior Court of Cook county, to recover for the death of plaintiff’s intestate. From a judgment for plaintiff for $6,000, defendant appeals.
    The facts are as follows: On December 9,1908, the defendant owned and operated street cars on State street, Chicago. State street extends north and .south, and is intersected at right angles by 13th and 14th streets. The distance between these two last mentioned streets is about six hundred feet. On the east side of State street, and about the middle of the distance, was a large barn of the Dixon Transfer Company. There were two entrances to the barn from State street. The company was engaged in the teaming business, and had about two hundred wagons and teams. In front of the entrance to the barn on the east side of the street was an electric arc light. This entrance was about three hundred feet from 13th street and the same distance from 14th street. There was a similar light almost immediately west on the west side of State street. It was the custom of the Dixon Company to have a watchman or flagman, in the evening, in front of the barn entrance and near the street car tracks, to signal the motormen and the drivers of the teams, so as to prevent collisions. The flagman usually had a lighted lantern in his hand, but there was some evidence that the signals were sometimes given by the flagman waving his hand only. This custom was known to the drivers of the teams and to the street car men operating cars on State street, and had been in effect for a considerable period of time. During that season of the year, shortly before the holidays,, teams would come into the barn from the day’s work until after ten o’clock at night. On the day in question, plaintiff’s intestate, Ziehler, together with two other teamsters of the Dixon Company, were hauling for Butler Brothers, located near Canal and Randolph streets. Each of the three had a team and wa‘gon.' Two of the wagons were loaded at Butler Brothers, and the three started, about nine o’clock, for the barn, driving south on State street. As they reached about 13th street, plaintiff’s intestate was in the lead, but at this point one of the other drivers, who did not have any load, drove ahead of him. They were all on the west side of the street. When the driver without a load was about opposite the barn, he was signaled by the flagman to drive to the barn, which he did. Plaintiff’s intestate and the other driver waited on the west side of the street for their signal. The first team had gone into the barn, when the flagman signaled plaintiff’s intestate to come to the barn, and at the same time signaled the motorman, who was coming north on the east track, to stop the car. The night was bright and a street car or team could be seen for about two blocks. As plaintiff’s intestate drove east across the tracks, the car struck the rear wheel, throwing the wagon around to the north, and the plaintiff’s intestate was thrown off on the pavement. The car ran some distance beyond the wagon and came to a stop. The injured man was placed on the platform of another car coming from the south and was taken to a hospital, where he died ten days later as a result of the injury.
    There was considerable dispute as to the location of the car and the wagon at the time the signal was given by the flagman, some stating the car was near 14th street, which would be about three hundred feet south of where the flagman stood, and others placing it at a distance further north. There was also some conflict as to whether the flagman had a lantern in his hand, but there is no dispute that if he. did have such a lantern, it was not lighted, it having accidentally gone out, and that the signal was either given by his hand or by swinging the unlighted lantern. The motorman testified that he saw the signal, but thought it was someone who wanted to board the ear as a passenger, and he paid no attention to the signal. The flagman had to jump off the track to escape being struck with the car, as he testified no effort was made to stop it. The motorman testified that the team driven by plaintiff’s intestate came from behind a southbound car on the west track, and that he did not see the team until it was too late. Other witnesses testified that there was no. other ear in the vicinity, but that a car had proceeded south some time before. The deceased was a man thirty-seven years of age, weighed about 225 pounds, and was- strong and healthy.
    The court refused an instruction requested by defendant which told the jury that the defendant had a superior right of way over persons and wagons in the portion of the street occupied by its tracks, except at street intersections, having due regard to the rights and safety of persons in the street; that it was the duty of persons driving teams to recognize this right, “and when crossing the tracks, to do so in a manner not to obstruct or delay the same,” and that if the jury believed from the evidence that the deceased, at the time in question, failed to recognize such superior right of way, “but, on the contrary, negligently attempted to cross the tracks, in front of the street car, without due regard to its superior right of way, and thereby caused or proximately contributed to cause the collision, then the plaintiff cannot recover in this case.”
    Frank L. Kriete and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Pattison & Shaw and Gorman, Pollock, Sullivan & Livingston, for appellee.

      Abstract j)f the Decision.
    1. Negligence, § 191

      —whether contributory negligence question for jury or court. Although as a general proposition the question of contributory negligence is one of fact for the jury, yet where the inference of negligence necessarily results from the evidence the question becomes one of law for the court.
    2. Street railroads, § 135

      —when contributory negligence question for jury. In an action to recover for the death of plaintiff’s intestate as a result of a collision between the team driven by deceased and an electric car alleged to have been negligently operated by defendant’s motorman, the question whether deceased was guilty of contributory negligence held properly submitted to the jury under the evidence.
    3. Street railroads, § 141

      —when instruction on negligence properly refused as too broad. In an action to recover for the death of plaintiff’s intestate as a result of a collision between the wagon deceased was driving and an electric car alleged to have been negligently operated by defendant’s motorman, held not error to refuse an instruction which, in effect, told the jury that the car had the superior right of way; and deceased’s failure to recognize such right of way by crossing in front of the car would preclude recovery if such failure caused or proximately contributed to the injury, for the reason that as framed the instruction was too broad, implying that such conduct of deceased was to be deemed negligence, whereas such instruction should have been so framed as to tell the jury that in case deceased failed to use due care not to obstruct or delay the car, plaintiff could not recover.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    George Schmidt, Appellee, v. Paul W. Cooper (Impleaded), Appellant. In the Matter of the Appeal of Paul W. Cooper.
    Gen. No. 21,749.
    1. Depositions, § 2

      —when master taking proof acts as examiner. A person holding the office of master in chancery who is appointed by order of a court to take evidence in a proceeding, acts under such order merely as a commissioner or examiner under Hurd’s Rev. St., ch. 51, sec. 24 (J. & A. ¶ 5541), providing for taking depositions in a chancery suit, and does not act thereunder as a master in chancery under Hurd’s Rev. St., ch. 90 (J. & A., If1(7364-7376), for which reason it is immaterial that at the time such order was entered issues had not been joined, nor any order of reference made.
    2. Depositions, § 2

      —when order of court not necessary. Under Hurd’s Rev. St., ch. 51, sec. 24 (J. & A. ¶ 5541), the complainant in a bill is authorized to take depositions to substantiate its averments before issues are joined, and without an order of court adjudging a necessity for so doing, and depositions so taken are in the nature of depositions de bene esse.

    3. Witnesses, § 200

      —when witness compelled to testify before commissioner. A complainant may, on filing his bill, compel a witness to testify before a commissioner appointed by the court under Hurd’s Rev. St., ch. 51, sec. 24 (J. & A. ¶ 5541), without an order of necessity or any showing of necessity other than that contained in the averments of the bill.
    4. Depositions, § 9

      —when scope of examination confined to averments of bill. In taking the deposition of a witness in a chancery cause under an order of court entered in pursuance of Hurd’s Rev. St., ch. 51, sec. 24 (J. & A. ¶ 5541), the examination of the witness must be confined to the averments of the bill, where such deposition is taken before issues are joined.
    5. Witnesses, § 202

      —when court of chancery has power to punish. A court of chancery has inherent power to punish as for contempt any witness who refuses to obey an order of court.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 8, 1915.
    Rehearing denied December 21, 1915.
    Drundage, Landon & Holt, for appellant; Robert N. Holt, of counsel.
    Helmer, Moulton, Whitman & Whitman, for appellee; Lloyd C. Whitman and Roland D. Whitman, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

This is an appeal by Paul W. Cooper from an order entered April 30, 1915, adjudging him guilty of contempt of court for failing to be sworn and give testimony before a master in chancery, acting as a commissioner in taking depositions, as provided in section 24, ch. 51, Rev. St. (J. & A. ¶ 5541), and committing him to the county jail until he should comply with the order of the court.

The facts are these: March 27, 1915, George Schmidt, appellee, filed a bill of complaint against Paul W. Cooper, et al., touching the question of the ownership of fifty shares of the capital stock of the Riverview Park Company, a corporation, and praying, in substance, that the defendants be restrained pendente lite from selling, transferring or incumbering twenty-five of such shares, and that the pretended sale and assignment of said fifty shares, in so far as it affected twenty-five shares of such stock, be held to be null and void, and that upon a final hearing, the injunction be made perpetual, and for general relief. Upon the filing of the bill, summons was issued returnable to the May term of the Circuit Court. Cooper was served March 29, 1915. March 31, 1915, Schmidt caused written notice to be served on all of the defendants that on April 7, 1915, he would proceed before Roswell B. Mason, a master in chancery of the Circuit Court, to take the depositions of said Cooper and other witnesses. Proof of the service of said notice was made to the master on the same date, and he thereupon issued a subpoena in the usual form to said Cooper, commanding him to appear before the master at ten o’clock a. m. on April 7, 1915. At the-, time mentioned, Schmidt and his counsel appeared before the master. Cooper did not appear, whereupon, at the request of Schmidt, the master certified the facts to the court together with all documents. The parties appeared before the court and Schmidt presented the record of the proceedings before the master, and asked for an order requiring Cooper to appear before the master and give testimony, and that clerk of the court issue a subpoena on Cooper. After delays and after argument of counsel, representing both parties, the court, on April 21, 1915, entered an order finding the facts as shown by the record made by the master, and ordered that Cooper appear before the master on April 26,1915, at ten o’clock a. m., and that he be sworn and testify on behalf of the complainant; that the clerk of the court issue a subpoena commanding Cooper to so appear. A certified copy of this order and the subpoena of the clerk were served personally on Cooper the same day.

April 26, 1915, the matter came on for hearing before the master. Cooper did not appear, but was represented by his solicitor, who stated Cooper’s position to be that the summons in the case was returnable to the May term; that some of the defendants had entered their appearance and filed demurrers which were undisposed of, although the defendants were willing to proceed with the argument before the court; that the proceeding then before the master was brought under the statute which provides that a party may, when necessary, take certain depositions before the issues are formed in a case; that there was no power under the statute, as he construed it, which authorized the court to compel a witness to appear and give testimony, but that the same could be done only by consent,-and not by compulsion; that the case, as yet, had not been referred to the master, and under the law this could not be done until the issues were formed; that no evidence could be taken until issues were formed; that the only way Cooper could test his rights in the premises was to refuse to obey the order of court, and refuse to appear and testify; that Cooper had the greatest respect for the master and for the court, but for the reasons above mentioned, he would not appear. The master certified the proceedings to the court, showing, among other things, Cooper’s position as stated by his counsel.

On April 27, 1915, the matter came on for hearing before the court, and an order was entered, finding, among other things, the proceedings which had taken place before the master, and it was ordered that Cooper show cause, by April 30th, why he should not be attached for contempt of court for failure to appear before the master on April 26,1915, as ordered by the court.

Cooper filed an answer which was supported by an affidavit of his counsel. They both set up Cooper’s position, which was substantially the same as that taken by bim before the master, as above set forth, and an additional objection was made that as the issues were not formed, it could not be known what evidence would be competent, and therefore he could not make proper objections so as to prevent a prying into his personal affairs, which would thereby be disclosed to persons who were extremely hostile to him, and that he could not be compelled to testify, as there was no law, statutory or common, which authorized such procedure.

Cooper also personally appeared in court at the time of the filing of his answer. Thereupon the court heard the matter and entered an order on the same date, and found all of the facts that had theretofore taken place before the court and the master, adjudged Cooper guilty of contempt of court, and ordered that he be committed. From this order, the present appeal is taken.

It is conceded that if the court had the power to enter the order in question, that all the proceedings taken before the master and the court were regular. No point is made that the bill does not state a cause of action. The question, therefore, that is squarely presented, is, can the court, under the facts of this case, compel Cooper to testify before a commissioner on behalf of the complainant?

The contention of appellee is that the authority for the order finding appellant in contempt is based upon section 24, ch. 51, Rev. St. (J. & A. ¶ 5541), and the inherent power of a court of chancery to enforce the attendance of witnesses thereunder.

Appellee’s position is that where a bill is filed which prima facie states a cause of action, the complainant has the right to have depositions taken to support the allegations of the bill, without any order of court, upon giving the notice required in section 24, supra, without issue.being joined, and against the objection of the witness.

On the other hand, appellant contends that as section 36, ch. 51, Rev. St. (J. & A. ¶ 5553) has been declared unconstitutional, no deposition can be taken before issue joined without the consent of the witness. He further contends that the matter was not properly before the master, the cause not .having been referred; that it could not be referred, as it was riot at issue.

The general mode of examining witnesses in equity, formerly, was by interrogatories in writing, conducted before an examiner. The witness did not testify viva voce in open court as at law. 1 Daniell’s Chancery Pl. & Pr. (5th Am. Ed.) *920; 3 Greenl. Ev., sec. 312; White v. Toledo, St. L. & K. C. R. R. Co., 79 Fed. 133; McClay v. Norris, 9 Ill. 370. The common-law courts had no power to procure testimony by deposition. Una v. Dodd, 38 N. J. Eq. 460; Amory v. Fellowes, 5 Mass. 219. Before a deposition de bene esse could be taken under the early practice of the court of chancery in England, it was necessary, in every instance, to apply to the court and support the same by petition or affidavit, showing that the witness whose deposition was sought was above the age of seventy years, dangerously ill, about to go abroad, or in other cases which come within the same principle. If the court was satisfied with the showing, an order was entered granting leave. This might be done even before appearance of the defendant. The examination was only a provisional measure to guard against the loss of important evidence before the cause was ripe for a regular examination, and the deposition, when so taken, could not be used without an order of court. 1 Daniell’s Chancery Pl. & Pr. (5th Am. Ed.) *934-*940. This procedure has been greatly modified by the statutes of the several States. It is not necessary, in this State, to obtain leave of court to take the deposition of a witness in a chancery proceeding. Section 24, ch. 51, Rev. St. (J. & A. ¶ 5541); Doyle v. Wiley, 15 Ill. 576; Sproule v. Samuel, 5 Ill. 136. And it is now permissible to introduce oral testimony. Section 38, ch. 51, Rev. St. (J. & A. ¶ 5555).

Section 24 (J. & A. ¶ 5541), supra, enacted in 1845, is as follows:

“When the testimony of any witness, residing or being within this State, shall be necessary in any suit in chancery in this State, the party wishing to use the same may cause the deposition of such witness to be taken before any judge, justice of the peace, clerk of a court, master in chancery or notary public, without a commission or filing interrogations for such purpose, on giving to the adverse party or his attorney ten days’ notice of the time and place of taking the same, and one day in addition thereto (Sundays inclusive) for every fifty miles’ travel from the place of holding the court to the place where such deposition is to be taken. If the party entitled to notice and his attorney resides in the county where the deposition is to be taken, five days’ notice shall be sufficient.”

Section 36, ch. 51 (J. & A. ¶ 5553) provides that any commissioner taking a deposition where a witness who has been subpoenaed refuses to respond, may make a report of the same to the clerk of the Circuit Court, ‘ ‘ and thereupon, attachment shall issue, out of said court against such offending witness, returnable forthwith,.before the Circuit Court of such county * * * who shall hear and determine the matter in a summary way;” and if the court finds that the refusal of the witness was wilful and without excuse, the witness may be punished accordingly. Our Supreme Court, in passing on this section, in the case of McIntyre v. People, 227 Ill. 26, said (p. 28):

“So much of it as authorized the circuit court or circuit judge to punish in a summary manner, by fine or imprisonment, a person who refuses to obey the subpoena of a notary public to appear and have his deposition taken or subscribe his name to his deposition in a case pending before a court in another State (Kansas) was unconstitutional, as contrary to section 9 of article 2 of our constitution.” Citing Puterbaugh v. Smith, 131 Ill. 199.

Appellant’s contention is that the court has no power, except by consent of the parties, to make an order of reference of a cause until the same is at issue, and that as the case at bar was not at issue, no order of reference could be entered; that, therefore, the matter was not properly before the master, and the proceedings were void. This contention is not applicable to the facts in the case. There is no contention that the case was referred to Mason as a master. In this case, Mason is not exercising the power of a master in chancery, as authorized in chapter 90, Rev. St. (J. & A. ¶¶ 7364-7376), but is acting simply as a commissioner or examiner under said section 24, just as a justice of the peace or notary public would act under the same section.

Appellant’s position in the lower court was as above stated. In this court, he now urges an additional ground, viz., that appellee made no showing of necessity, as required by said section 24. This is urged for the first time in this court, and under a long line of decisions of the Supreme Court of this State, the point was waived. In view, however, of the fact that the point has been argued by both sides in the printed briefs and on the oral argument, we will consider it.

In the case of Doyle v. Wiley, 15 Ill. 576, the court was considering the admissibility of depositions taken in a suit in chancery where, after they were taken, the bill was dismissed and a supplemental bill filed, the parties and issues being the same. The court there said (p. 577):

"The argument is, that at the time the depositions were taken, there was no issue to which they could apply. That as there was nothing yet to prove, the depositions were entirely irrelevant. That as the testimony was not relevant to any issue in the suit, perjury could not be assigned upon it, and hence it lacks one of the important safeguards against perjury, to which the party was entitled.
There was certainly no issue formed at the time the depositions were taken, but it does not follow that the depositions were necessarily irrelevant, or that perjury could not be assigned upon them. Depositions taken before an issue is formed are called de bene esse depositions, and have been always known to the courts of chancery in England and it was never heard that they should be treated as irrelevant, or that perjury could not be assigned upon them, because no issue was yet formed in the suit. It is true such depositions could not be taken without a special order of the court for that purpose. Nor, indeed, could any depositions be taken in a chancery suit, according to the English practice, without an order of the court for that purpose. Our statute, however, has changed the practice on this subject, and allows the party to take his depositions without any leave or order of the court. And the doubt with us has been, whether the statute dispenses with the order for taking depositions in all cases, or whether the order is still required for taking depositions de bene esse for there can be no doubt that the legislature never designed to prohibit the taking of such depositions altogether.”

The court then quotes from section 24, supra, and also from section 34, ch. 51 (J. & A. ¶ 5551), which provides that depositions taken are competent evidence, and may be read the same as if the witness had been present in open court, and continuing, said (p. 578):

“The first section quoted (section 24, supra) was certainly designed to supersede the necessity for getting an order of the court for the taking of depositions, and there can be no good reason for saying that it was the intention of the legislature to dispense with such order in one case and not in another. Whenever the testimony of a witness shall be necessary in any suit in chancery, the statute says his deposition may be taken. The argument is, that no testimony is necessary till the' answer is filed and an issue formed, so that it is certain that the complainant is obliged to prove some part of his case, and that it is only in case of such necessity that the statute authorizes any deposition to be taken; and that any deposition which is taken without such necessity is not sanctioned by law, and that the witness could not be convicted of perjury upon such deposition. This, we think, would be carrying the rule further than was designed by the legislature. We are inclined to hold that, when a party files a bill, the statute authorizes him to take depositions to substantiate its averments, and at least, until they shall have been admitted by the defendant, such testimony is necessary for the complainant; and that he may proceed to take his depositions de bene esse, if he chooses, without an order.”

The Doyle case, supra, was approved by our Supreme Court in the case of Harding v. American Glucose Co., 182 Ill. 551, where the court said (p. 590): “Complainants had the right, even before issue joined, to take depositions to substantiate the averments of their bill. (Doyle v. Wiley, 15 Ill. 576.)”

Appellant seeks to distinguish the Doyle case, supra, from the case at bar, in that there the depositions may have been taken by consent, and that what the court said on the question of necessity was obiter dicta. In our opinion, the argument is untenable, and under the doctrine in the Doyle case, supra, we are constrained to hold that complainant, upon filing his bill, may compel the defendant to testify before the commissioner, without any order of court and without any showing of necessity other than as may appear from the bill. The wisdom or unwisdom of this law is a question for the Legislature and not for the court.

The answer to appellant’s objection that if he is compelled to testify before issue formed, his private affairs may be illegally gone into, is that the examination should be confined to the allegations of the bill.

The remaining question to be disposed of is, Is there any law, either statutory or common, whereby the appellant may be punished for refusal to testify? That part of section 36, ch. 51 (J. & A. ¶ 5553) which provides that a witness may be punished for refusing to obey the subpoena of a notary public, as we have already said, is unconstitutional.

It is elementary that a court of chancery has inherent power to punish as for contempt any witness who refuses to obey an order of court. Clark v. People, 1 Ill. (Breese) 340; People v. Wilson, 64 Ill. 195. People v. Cohen, 163 Ill. App. 115. The power of courts to punish contempts is as incontestable as the fact that the court exists. Una v. Dodd, supra.

In the McIntyre case, supra, the facts were these: There was a chancery suit pending. A notice was given that the deposition of McIntyre would be taken before a notary public, the time and place being mentioned. A subpoena was served on McIntyre, and his fees paid. He refused to appear. The notary filed a report in the Superior Court of the facts. The court, after examination, found McIntyre guilty of contempt for such refusal, ordered an attachment issued and McIntyre brought before the court, which was done. Afterwards, an answer was filed, setting up that said section 36 was unconstitutional and void. After hearing, the court adjudged McIntyre guilty of contempt and he was fined fifty dollars. In default of payment he was to be confined in the county jail. The court, after discussing the Puterbaugh case, supra, said (p. 29): “No order of any kind had been entered by the Superior Court as to the taking of this deposition, previous to the subpoena being issued by the notary public.” The court then refers to the case of Interstate Commerce Commission v. Brimson, 154 U. S. 447, and in discussing the power of the court to impose a fine or to imprison to compel performance of legal duties, held that such power could only be exercised by a competent judicial tribunal having jurisdiction, and continuing, said (p. 30): “That such power cannot be committed to a subordinate or executive tribunal for final determination. In the case at bar the Superior Court adjudged appellant guilty of contempt, not for any act he had done in contravention of the judicial authority of that court, but for disobeying the subpoena of a notary public.” The judgment was reversed and the cause remanded. In that case, the court clearly pointed out the difference between a refusal of a witness to obey the subpoena of a notary public and a refusal to obey an order of a court having power to enter the same. It will be noted that the punishment there was imposed for failure to obey the subpoena of a notary public. In the case at bar, appellant was punished not for failure to obey the subpoena of Mason, but for a failure to obey an order of the Circuit Court.

We therefore hold that appellant, in disobeying the order of the Circuit Court, was guilty of contempt, and that the court had the inherent power to punish him for said contempt. The order of the Circuit Court of Cook county will be affirmed.

Affirmed.


author: Mr. Justice Pam

text:
    James A. Jennings, Appellant, v. Baltimore & Ohio Railroad Company et al., Appellees.
    Gen. No. 19,867.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed December 8, 1915.
    Rehearing denied December 21, 1915.
    Statement of the Case.
    Action by James A. Jennings, plaintiff, against the Baltimore & Ohio Railroad Company, and the Baltimore and Ohio Terminal Railroad Company, defendants, in the Circuit Court of Cook county, to recover for injuries sustained by plaintiff in a collision between plaintiff’s automobile and defendants’ train. From a judgment for defendant, plaintiff appeals.
    The collision occurred in the City of Chicago, May 4, 1911, when plaintiff’s automobile, while proceeding north on a throughfare known as Independence boulevard, was struck' by the rear end of an east-bound passenger train.
    The declaration contained four counts, wherein it was alleged that defendants owned and operated a certain railroad in the City of Chicago, which railroad crossed a certain public highway known as Independence boulevard; that, while plaintiff, in the exercise of due care and diligence for his own safety, was riding in an automobile over the crossing, made by the intersection of said railroad with Independence boulevard, he was struck by the rear end of a train of cars, which train of cars was owned and operated by said 'defendants and was under the control of the servants of the defendants. Said counts charged defendants with negligence (1) in the operation of said train, (2) in the failure to ring a bell or sound a whistle, as provided by our statutes, and (3) in the conduct of the crossing flagman—a servant of said defendants—in recklessly, wilfully and negligently beckoning plaintiff to enter upon the crossing while, said train was approaching.
    Both defendants pleaded the general issue. The defendant, the Baltimore &, Ohio Railroad Company, however, in addition, included in said plea a statement which it maintains was a notice in writing, under the statute, of a special defense to be relied upon at the trial, which statement was as follows:
    “Said defendant, the Baltimore & Ohio Railroad Company, further says that it was not the owner of or in control of or in possession of the certain locomotive engine and the certain train of ears thereto attached, or of the railroad or railroad tracks upon which the same were driven, as alleged in said declaration, and the several counts thereof, and that said locomotive engine and train of cars referred to in said declaration and the several counts thereof, was not at the times in said declaration mentioned, or any of them, under the care and management of any servants of this defendant.”
    Upon the trial below plaintiff introduced evidence tending to prove the allegation of the declaration. Plaintiff also introduced in evidence certain facts which he claims, in themselves, or by the reasonable inferences that flow therefrom tended to show, that the defendant, the Baltimore & Ohio Railroad Company, owned controlled and operated the train of cars which collided with plaintiff’s automobile, and that the said engine and train of cars and crossing were under the care and management of servants of the said Baltimore & Ohio Railroad Company.
    At the close of plaintiff’s case, the Baltimore & Ohio Railroad Company, after asking the court to instruct the jury for the defendant and submitting a written instruction to that effect, rested. The defendant, the Baltimore & Ohio Chicago Terminal, after submitting a similar motion and instruction, proceeded with its defense under its plea of general issue. At the close of all the evidence, both defendants again renewed their motions for an instructed verdict, which motions were denied, whereupon the cause was submitted to the jury and the verdict returned upon which the judgment herein complained of was entered.
    Abstract of the Decision.
    1. Railroads, § 763

      —when instruction as to admission of ownership, management and control of train properly refused. In an action to recover for injuries sustained by the alleged negligent operation of a railroad train, a request by plaintiff that the jury be instructed as matter of law that one of the defendants in the action admitted its ownership, management and control of the train in question by pleading the general issue in the action, held properly refused where such point was raised for the first time by plaintiff at the close of all the evidence, after having offered evidence as to such question as part of his case, such conduct being inconsistent, and where it also appeared that defendant filed with its plea a notice of special defenses which was sufficient under Hurd’s Rev. St., ch. 110, see. 48 (J. & A. f 8593), providing for the filing with such a plea of written notice of special defenses relied on.
    2. Instructions, § 137

      —when defendant may request instruction on plaintiff’s evidence. A defendant which has rested without offering any evidence in defense may at the close of plaintiff’s evidence request that the jury be instructed, as to it, only on plaintiff’s evidence, and further, that the jury be instructed not to consider, as to it, the evidence offered in defense by a codefendant.
    3. Instructions, § 137

      —when right to instruction on plaintiff’s evidence waived. A defendant who rests without offering evidence in defense and cross-examines the witnesses offered by a codefendant waives his right to request that the jury be instructed, as to it, solely on plaintiff’s evidence, and also to request that the jury be instructed not to consider, as to it, any evidence offered in defense by a codefendant.
    Charles R. Whitman, for appellant; Lloyd C. Whitman, of counsel.
    Calhoun, Lyford & Sheean, for appellee; Charles D. Clark, of counsel.

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

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

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

   Mr. Justice Pam

delivered the opinion of the court.

4. Instructions, § 135 —token right to instruction on plaintiff’s evidence waived. A defendant who has rested without offering evidence in defense submits to the jury, as to it, all the evidence in the case where, at the close of all the evidence, it requests a peremptory instruction in its favor as well as instructions on the facts and on the law in the case, without confining such requests to plaintiff’s evidence, for which reason if the jury find a verdict of guilty, such defendant will be precluded from asserting that the jury were not warranted in considering, as to it, all the evidence in the case.

5. Railroads, § 770 —when instructions conform to issues. In an action to recover for injuries sustained by the alleged negligent operation of a train, instructions requested by plaintiff examined and held to submit to the jury the question of the ownership, management and operation of the train by a particular defendant.

6. Railroads, § 733 —sufficiency of evidence as to negligent operation. In an action to recover for injuries sustained by the alleged negligent operation of a railroad train, where the action was against two defendants, one of whom made no denial of the ownership and control of the agencies involved, a verdict of not guilty against one defendant which offers no evidence in defense will be sustained by the evidence where the jury are warranted in considering, as against such defendant, the evidence offered in defense by its codefendant, if a similar verdict as to such codefendant, found on such evidence, would be sustained thereby.

7. Railroads, § 770 —when instruction as to warning signal by locomotive applicable to evidence. In an action to recover for injuries sustained through the alleged negligent operation of a railroad train, held that an instruction as to the effect of sounding the locomotive’s bell or blowing its whistle was based on sufficient evidence in the record, where such record showed that such bell was sounded by an electric ringer from the time the train reached the city limits until it came to a stop after the accident.

8. Railroads, §766 —when instruction on doctrine of last clear chance properly refused as misleading. In an action to recover for injuries sustained by the alleged negligent operation of a railroad train, a requested instruction presenting the doctrine of “last clear chance” held properly refused, where the instruction was involved and misleading and did not correctly present such doctrine to the jury.

9. Instructions, § 46 —necessity that instruction not invade province of jury. An instruction which clearly invades the province of the jury is properly refused.

10. Trial, § 155 —province of fury to consider conflicting testimony. An issue presented by conflicting testimony is a question of fact for the jury.

11. Appeal and error, § 1410 —when verdict will not be disturbed as against weight of evidence. Where the evidence is conflicting, the verdict of a jury will not be disturbed on review unless clearly and manifestly against the weight of the evidence.

12. Railroads, § 733 —sufficiency of evidence as to negligent operation. In an action to recover for injuries sustained by the alleged negligent operation of a railroad train, judgment for defendants held sustained by the evidence.

13. Damages, § 183 —when evidence as to having family inadmissible. In an action to recover for injuries sustained by the alleged negligent operation of a railroad train, evidence that before the injury plaintiff was married and had children, held properly excluded.

14. Judgment, § 199 —when error as to one party as affecting other party immaterial. In an action against codefendants, the question as to the vitiation of the judgment as to both defendants by its invalidity as to one, held immaterial in view of the decision of the court on other questions presented by the record.


author: Mr. Justice Holdom

text:
    Edwin C. Day, Trustee, Appellant, v. Michael Zimmer et al., Appellees.
    Gen. No. 21,863.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the October term, 1915.
    Appeal dismissed.
    Opinion filed December 13, 1915.
    Statement of the Case.
    Action by Edwin C. Day, trustee, etc., plaintiff, against Michael Zimmer et al., defendants, in the Circuit Court of Cook county. From a judgment for plaintiff, defendant appeals.
    The decree appealed from was entered April 30, 1915. In this decree the time limit of thirty days was fixed within which the appeal bond must be filed, and sixty days were allowed for the filing of a certificate of evidence.
    Abstract of the Decision.
    1. Appeal and error, § 627

      —when right of appeal from Circuit Court lost. If the time allowed in the order in the Circuit Court granting an appeal for filing an appeal bond expires before the appeal bond is filed, without an extension within the time allowed in the order, the right of appeal is lost.
    2. Appeal and error, § 861

      —when time for filing certificate of evidence improperly extended. An order of the Circuit Court extending the time for filing a certificate of evidence entered at a term subsequent to that at which the appeal was taken is without force, the court having no jurisdiction to enter such order at such time.
    The appeal bond was filed and approved June 1, 1915. The certificate of evidence was signed by Judge Baldwin (Judge Windes being the trial judge), September 21,1915, nunc pro tunc as of July 20,1915, and order filed as of the last-named date.
    On July 1,1915, an order was entered extending the time within which to file the certificate of evidence thirty days from the 29th of June, 1915. The decree appealed' from was entered at the April term of the court and no extension of time within which to file the bond was asked or allowed at that term, and the bond was filed and approved after the lapse of the time allowed by the court and at the succeeding May term. On July 1, 1915, more than sixty days after the entering of the decree and after the term at which the appeal was allowed, an order was entered enlarging the time in which to file the certificate of evidence thirty days from June 29, 1915.
    Thomas J. Johnson, for appellant.
    Bither & Goff, for appellees.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

3. Appeal and error, § 858 —when certificate of evidence signed by judge not sitting in case a nullity. A certificate of evidence signed by a judge who did not sit in the case or enter the decree appealed from is a nullity where no reason is shown by the record for his so doing.

4. Appeal and error, § 858 —when failure to file certificate of evidence in time fatal. Where a certificate of evidence is not seasonably filed, a motion of appellee to strike will be allowed by the Appellate Court


author: Mr. Presiding Justice Gridley

text:
    Sidney S. David, Defendant in Error, v. Mark May et al., Plaintiffs in Error.
    Gen. No. 20,504.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed December 21, 1915.
    Statement of the Case.
    Action by Sidney S. David, plaintiff, against Mark May, Walter E. Hart and Thomas W. Thompson, defendants, in the Municipal Court of Chicago to recover for the conversion of money alleged to have been procured from plaintiff on false representations. To reverse a judgment for plaintiff for $250, defendants prosecute this writ of error.
    In plaintiff’s amended statement of claim it is alleged that:
    “Plaintiff’s claim is to recover from the defendants, jointly and severally, the sum of $250, with interest thereon from April 19, 1913, due and owing to the plaintiff by the defendants and converted by them and each of them to their own use; that defendants procured from the plaintiff the sum of $250 upon the representation and condition that they were forming a bank to be known as the Public Trust & Savings Bank, and that said defendants have failed to and have not organized said bank and have abandoned said project ; that plaintiff has demanded from the defendants the return of said $250 * * * and that they and each of them have failed, neglected and refuse to return said money; that defendants fraudulently and falsely represented to plaintiff that the organization of said bank would be completed not later than July 1, 1913, and would issue stock therein to the plaintiff, which they have failed, neglected and refuse to do.”
    The defendant May was defaulted for failure to file an affidavit of merits. The other defendants, Hart and Thompson, filed separate affidavits of merits denying the allegations of plaintiff’s statement of claim and denying joint liability.
    Upon the trial plaintiff testified that on April 19, 1913, he received a call from the defendant Mark May; that May stated that he, in connection with Hart and Thompson, was organizing a bank to be called the Public Trust & Savings Bank and to be located in the Hearst Building, Chicago; that it was to be organized and ready for business by July 1, 1913, and that he desired plaintiff to buy certain shares of stock in the bank; that he (plaintiff) thereupon purchased twenty shares of said stock and signed and delivered to May his check for $250, the same being a ten per cent, payment on said shares, and that he at the same time received from May a written receipt. The check and receipt were admitted in evidence. The check, dated April 19, 1913, was drawn on the Northwest State Bank and made payable to the “Public Trust,& Savings Bank,” was indorsed “Public Trust & Savings Bank Organization, Mark May, Thomas W. Thompson, W. E. Hart,” and also “Lincoln State Bank,” and was paid by said Northwest State Bank and returned, canceled, to plaintiff. It does not appear from the evidence that the indorsements thereon of the defendants, Thompson and Hart, were in their handwriting. The said receipt was also dated April 19, 1913, was signed by the defendant May “Mark May, W. E. Hart, Thomas W. Thompson, Commissioners, by Mark May,” and was as follows: “Received of Sidney S. David $250, being partial payment for 20 shares of the capital stock of Public Trust & Savings Bank. Certificate of stock will be issued to the legal holder hereof when the Capital is fully paid in, upon surrender of this interim receipt to the Commissioners named hereon. ’ ’ Plaintiff further testified that he never received any shares of stock in the Public Trust & Savings Bank, that no shares were ever tendered to him by any one and that the money, so paid out, was never returned to him; that about July 18, 1913, he telephoned the defendant May inquiring why the bank had not been organized and why he had not received the shares of stock for which he had subscribed, that May answered that he had had trouble in raising the necessary capital and had been delayed, and that plaintiff replied that if the organization was not completed by August 1,1913, his money must be returned to him; that he (plaintiff) never had any conversation or business transactions with either Thompson or Hart, and that no representations of any kind were ever made to him by either Thompson or Hart. R. J. Roepke, chief clerk of the Lincoln State Bank and a witness for plaintiff, testified that said bank had an account with the “Public Trust & Savings Bank, Mark May, Walter E. Hart and Thomas W. Thompson”; that he (Roepke) knew Mark May only; that moneys had been deposited by said May to the credit of said account; that the* account was still open; that certain moneys had been withdrawn from said account by means of checks signed by the defendants, as commissioners, and that there was in said account the sum of $62.50 to the credit of said defendants. Two checks were identified by the witness as having been drawn on said account and paid, and were admitted in evidence. One check was for $625, dated June 27, 1913, and the other check was for $25, dated July 3, 1913. They were signed “Public Trust & Savings Bank, Commissioners, Mark May, Walter E. Hart, Thomas W. Thompson.”
    The defendant May did not testify. The defendants Hart and Thompson testified that they, together with the defendant May, acted as commissioners in the organization of the Public Trust & Savings Bank, which organization had not yet been completed; that no stock had been issued to any one; that they (Hart and Thompson) joined with May at his request in signing the checks above mentioned and other checks, but that they could not tell definitely for what specific purposes certain of the funds so deposited in said Lincoln State Bank had been disbursed, as they depended largely on May to attend to the disbursements; and that they never received or used for their own benefit any of the moneys so deposited or collected on plaintiff’s subscription to said stock.
    The defendants Hart and Thompson sought to introduce in evidence a document signed by the plaintiff at the time he delivered to May his check for $250, but the court refused to admit the same in evidence and an exception was taken. The document is as follows:
    “In the Organization of the Public Trust & Savings Bank of Chicago.
    “I desire to become a stockholder in the Public Trust and Savings Bank of Chicago to be organized under an Act of the State of Illinois ‘concerning Corporations with Banking powers’ with a capital stock of Three Hundred Thousand Dollars ($300,000) and a surplus fund of Sixty Thousand Dollars ($60,000).
    “I hereby subscribe for Twenty (20) shares of the Capital Stock of the said Public Trust and Savings Bank of Chicago, at One Hundred and Twenty-five Dollars each and agree to pay for same as follows: (10%) to accompany this subscription and the balance on or before demand is made by the Directors to be elected by the subscribers.
    Abstract of the Decision.
    1. Trover and conversion, § 38

      —when agreement subscribing for stock erroneously excluded as evidence. In an action to recover for conversion of money alleged to have been procured from plaintiff by false representations, where it appeared that the money alleged to have been converted was a part payment on a subscription for stock in a bank which was never organized, evidence of the written agreement wherein plaintiff subscribed for such stock, held erroneously excluded, it appearing that such agreement contained a clause authorizing defendants to use for organization purposes a proportion of
      the amount alleged to have been converted, such agreement being competent as tending to show, in connection with other evidence, that defendants were-not liable to plaintiff in any form of action for the full amount of such part payment.

      “It is understood and agreed that the sum, of ($5.00) a share of the above number of shares herein subscribed for is to be used to defray organisation fees and expenses.

    “Chicago, April 19, 1913.
    “(Signed) Sidney A. David.”
    The defendants Hart and Thompson also sought to introduce in evidence an agreement made by the defendant May for a lease of certain premises, to be used by the bank when finally organized, and to show the expenditure of certain moneys in order to secure said lease, but the court would not allow said agreement to be introduced or said expenditures to be shown, and defendants excepted. The court also declined to permit defendants to show for what purpose the checks for $625 and $25, previously referred to, were drawn, and defendants excepted.
    Pringle, Reid & Terwilliger, for plaintiffs in error.
    William Friedman and William F. Ader, for defendant in error.

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

2. Trover and conversion, § 38 —when evidence as to disbursement of money erroneously excluded. In an action to recover for conversion of money alleged to have been procured from plaintiff by false representations, where it appeared that the money alleged to have been converted was a part payment on a subscription for stock in a bank which was never organized, and where the subscription agreement contained a provision that a proportion of such amount might be used for organization purposes, evidence that money had been disbursed for organization purposes by defendants held erroneously excluded.

3. Assumpsit, § 50 —when action for money had and received lies upon failure of consideration. A person who pays money for shares in a company which never comes into existence pays it on a consideration which fails, and may recover such amount in an'action of money had and received unless it be shown that he has consented to or acquiesced in the application made of such money by those into whose hands it comes.


text:
    J. A. Svenson, Defendant in Error, v. George C. Stamm et al., Plaintiffs in Error.
    Gen. No. 20,798.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 21, 1915.
    Statement of the Case.
    Action by J. A. Svenson, plaintiff, against George C. Stamm, Henry Stafford and Nils A. Sundholm, defendants, in the Municipal Court of Chicago, to enforce a mechanic’s lien on a contract for building stairs in a building. To reverse a judgment for plaintiff for $550 against defendants jointly, defendants prosecute this writ of error.
    In his statement of claim plaintiff alleged that his claim was for $550, and was “for balance owing on fifteen (15) flights of main stairs placed in building at No. 912-932 Airdrie Place, Chicago.” An authorized agent of the four original defendants filed an affidavit of merits in their behalf in which it was denied that any balance on said stairs was due to plaintiff from them or any one of them. On May 27,1914, on motion of plaintiff, the court ordered that all records, papers and proceedings be amended by making “Carl A. Bydquist and Nils A. Sundholm, doing business as Bydquist & Sundholm, co-defendants herein.” ' Subsequently both Bydquist and Sundholm were duly served with process and each entered a separate appearance. Bydquist filed an affidavit of merits in which he denied owing any sum of money to plaintiff, and alleged that he had never purchased any stairs from plaintiff; that he had not been a partner with Sundholm since some time in May, 1913, and that plaintiff had had notice that he was not a partner with Sundholm when he (plaintiff) sold the stairs in question to Sundholm. On June 15, 1914, Sundholm was defaulted for failure to file an affidavit of merits. At the commencement of the trial, July 1,1914, which was before the court without a jury, plaintiff voluntarily dismissed the suit as to defendant Bydquist; and during the trial the court dismissed the suit as to the defendants Edith M. Stamm and May Stafford.
    At the conclusion of all the evidence, the defendants George C. Stamm and Henry Stafford moved that the court dismiss the suit as to them, which motion the court overruled and said defendants excepted.
    The evidence disclosed, in substance, the following facts: The premises and building at Nos. 912-932 Airdrie Place, Chicago, were in May, 1913, owned by the four defendants, George C. Stamm and Henry Stafford and their respective wives, and they continued to be the owners up to the time of the trial. The defendants George C. Stamm and Henry Stafford were partners, and they entered into a contract for the erection of a building upon said premises with the Rydquist & Sundholm Company, which was then a partnership, composed of Carl A. Rydquist and Nils A. Sundholm. On May 16,1913, after the making of the original contract, plaintiff, who was in the business of manufacturing stairs, entered into a subcontract in writing with said Rydquist & Sundholm Company, wherein he agreed to furnish and set up in said building fifteen flights of main stairs, according to certain plans and specifications, for the sum of $1,150. A few days after the signing of said subcontract, plaintiff informed Henry Stafford that he had made such contract, that he did not think said company was financially responsible and that he was not satisfied to go ahead with the contract. According to plaintiff’s testimony Stafford replied: “I am going to superintend the job myself. You go ahead and do the work. I will take care of you. I will see that your money is paid.” About June 1, 1913, according to the testimony of two sons of plaintiff, after the stairs were ready for delivery, Stafford called at plaintiff’s place of business to inspect the stairs, and upon one of the sons expressing doubt as to the financial responsibility of said Rydquist & Sundholm Company, Stafford said: “Your money will be taken care of. I will hold out your money, and see that it is paid to you.” Stafford denied that he ever told plaintiff or any of his representatives that he would personally guaranty plaintiff’s account for the stairs or would ‘ ‘ hold out ’ ’ any money therefor. About July 24, 1913, after the stairs had been delivered at the building, one of plaintiff’s sons called on Stafford and asked for a payment on account. According to the son’s testimony, Stafford said that he should “get an order from the Rydquist & Sundholm Company,” and that the most he (Stafford) could pay at that time was $600. The witness procured such an order and the same was introduced in evidence. It is dated July 24, 1913, and is signed “Bydquist & Sundholm Co., W. A. Sundholm,” and is addressed to “Stafford & Stamm.” In the body of the order are the words: “Please pay to the order of Jos. Svenson the sum of $600 and charge to my account.” Below the signature are the words: “Paid $600. J. A. Svenson, by Brick Svenson.” After the work of setting up the stairs in the building had been fully completed, one of the sons of plaintiff again called on Stafford and asked for the balance due, $550, on plaintiff’s work, and Stafford said that the work was satisfactory and suggested that said son call upon Stamm relative to Stamm and Stafford and their respective wives giving to plaintiff a note for said balance. Said son thereupon called upon Stamm and presented him with an order for $550 from Bydquist & Sundholm Company, and asked for payment. Some conversation was had regarding Stamm and Stafford and their wives giving plaintiff a note for said balance, and Stamm finally said that he would later advise plaintiff as to what they would do. No note was ever given plaintiff. Subsequently plaintiff served subcontractor’s notices of a mechanic’s lien, dated October 20, 1913, on Henry and May Stafford (whether served on the Stamms does not appear), claiming a lien on said premises and building for the material and labor for constructing said stairs, and that there was due plaintiff “on the 23rd day of August, 1913,” the sum of $550 therefor. A certified copy of the records and proceedings in a certain garnishment suit in said Municipal Court, case No. 280,299, was introduced in evidence. It therein appeared that on April 20, 1914 (after the present suit was commenced), the Columbia Cabinet Company, an Illinois corporation, recovered a judgment in said court for $1,007 against “Nils A. Sundholm and Carl A. Bydquist, doing business as Rydquist-Sundholm Company”; that a garnishee summons was issued for said Henry Stafford and George C. Stamm, and others; that on May 14, 1914, said Stafford and Stamm, as garnishees, filed a joint answer, verified by affidavit, in which they admitted having in their possession money, to the amount of $356.30, due and owing said Rydquist-Sundholm Company, for balance under a certain contract for the erection of a certain building, which amount was subject to the order of the court, and alleged that said money was claimed by “J. A. Svenson,” and others (naming them), and asked that said adverse claimants appear, etc.; that subsequently plaintiff entered his appearance in said garnishment suit; and that on May 27, 1914 (before the judgment in the present suit was entered), the court adjudged that “judgment be entered on the finding as to the claim of the Columbia Cabinet Company, to the fund in the hands of the garnishees, and that the right thereto is in the Columbia Cabinet Company.”
    Abstract of the Decision.
    1. Mechanics’ liens, § 196—when evidence insufficient to establish joint liability. In an action to enforce a mechanic's lien for constructing stairs in a building, where the judgment was against three defendants jointly, evidence examined and held insufficient to prove a joint liability.
    2. Municipal Court of Chicago, § 13

      —when statement of claim does not warrant joint judgment. In an action by a subcontractor to enforce a mechanic’s lien, where plaintiff’s statement of claim does not show that he is seeking a judgment against the owners of the building and the original contractor jointly, such a judgment is erroneous under section 28 of the Mechanics’ Liens Act (J. & A. ¶ 7166), providing that all suits and actions by subcontractors shall be brought against both contractor and owner jointly and no decree or judgment shall be entered until both are brought before the court by process.

      Adams, Crews, Bobb & Wescott, for plaintiff in error.
    M. M. Jacobs, for defendant in error.

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

3. Mechanics’ mens, § 202 —when judgment for subcontractor erroneous. In an action under Mechanics’ Liens Act, section 28 (J. & A. If 7166), by a subcontractor to enforce a mechanic’s lien for building stairs in a building, a judgment not against all the owners and all the contractors is erroneous.


text:
    Thomas MacLagan, Appellee, v. Chicago Telephone Company, Appellant.
    Gen. No. 20,958.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed December 21, 1915.
    Statement of the Case.
    Action by Thomas MacLagan, plaintiff, against the Chicago Telephone Company, defendant, in the Circuit Court of Cook county, to recover for personal injuries sustained by reason of a fall from a telephone pole. From a judgment for plaintiff for $7,000, defendant appeals.
    Holt, Cutting & Sidley, for appellant.
    Francis X. Busch, Frank A. Rockhold and David G. Robertson, for appellee.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 685 —sufficiency of evidence to sustain verdict for injuries due to defective appliances. In'order to recover in an action for personal injuries sustained by a servant as a result of defects in the appliances of the Business, plaintiff must prove (1) that the appliance was defective; (2) that the master had or should have had notice or knowledge of such defect; (3) that the servant did not know of the defect, and that his means of knowledge were not equal to those possessed by the master.

2. Master and servant, § 120 —what constitutes an appliance. A telephone pole is an appliance for the support of the telephone wires, and, when used by a lineman as a means of reaching the wires, serves the same purpose as a ladder or scaffolding.

3. Master and servant, § 698 —sufficiency of evidence as to knowledge of defective telephone pole by employee. In an action by a servant against a master to recover for personal injuries sustained by a fall from a telephone pole, due to the breaking of an alleged defective brace supporting a cross-arm on such pole, evidence held sufficient to prove that plaintiff’s means of knowing the condition of such brace and arm were equal to those of defendant, it appearing that plaintiff was an experienced repairman who for four years prior to the accident had been working on similar poles and cross-arms.

4. Master and servant, § 699 —when servant repairing telephone lime guilty of contributory negligence. In an action by a servant against a master to recover for injuries sustained as a result of falling from a telephone pole on account of a defective brace, a recovery held barred by contributory negligence.

5. Master and servant, § 698 —sufficiency of evidence as to assumption of risk by telephone lineman. In an action by a servant against a master to recover for injuries sustained as a result of a fall from a telephone pole on account of a defective brace upon which plaintiff rested his weight, held that under the evidence plaintiff assumed the risk, it appearing that plaintiff was an experienced repair man, who for four years prior to the accident had been working on similar poles.

6. Master and servant, § 322 —when servant repairing telephone line assumes risk. An experienced employee who is required to climb poles frequently in the course of his duties, and is fully acquainted with the dangers incident to such work, assumes the risk of dangers discoverable by reasonable inspection, the duty of making which was imposed upon the employee, in the absence of a separate system of inspection by the master, on which the employee has a right to rely and does rely.

7. Master and servant, § 307—when duty of telephone lineman to malee inspection. In an action by a servant against a master to recover for personal injuries due to a fall from a telephone pole as the result of the breaking of an alleged defective brace supporting a cross-arm on said pole, where plaintiff was an experienced lineman accustomed to working on such poles, evidence held to show that the duty of inspection was imposed on plaintiff, and not on defendant.