text:
    C. E. McGilton et al., Appellants, v. St. Louis National Stock Yards, Appellee.

      Animáis—when recovery cannot Be had for injury to. If a person employed to disinfect animals makes an honest effort so to do and to comply strictly with the government regulations, no recovery can be had for an injury resulting from the effort so to disinfect the animals in the absence of a showing that ordinary care was not exercised.
    Action in case. Appeal from the Circuit Court of St. Clair county; the Hon. Geobge A. Cbow, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed November 11, 1911.
    Statement by the Court. This action is in case and was brought by appellants against appellee for negligently killing seventy-seven young horses of appellants, and for damages to thirteen others that had been shipped to East St. Louis from Texas. Judgment was entered in favor of appellee against appellants upon a verdict of not guilty by a jury, in pursuance of a peremptory instruction by the court at the conclusion of all the evidence. McGrilton and Horn, who were partners, have appealed to this court.
    The uncontroverted evidence in the record shows the following facts: That appellants were engaged in buying horses that came into the yards for sale to local customers; that appellee was engaged in doing a general stock yards business and was possessed of yards, pens, sheds, barns and other equipments necessary for doing a general stock yards business near East St. Louis; that it handled cattle and horses from the quarantine districts of the South and West, some of which were infested with the southern cattle tick, called margaropus cmnulatus, which is supposed to disseminate Texas or splenetic fever; that it provided a dipping vat in which cattle and horses from the quarantine districts, which were infested with the tick, might be dipped; that this dipping vat consisted of a pit about forty feet long, three feet wide and ten feet deep, and filled with crude oil to the depth of six feet; that at the entrance to the vat there was a small pen with a chute leading to the vat, and at the end of the chute over the vat was a heavy plank balanced on a pivot from which the animals were thrown into the vat of oil when tilted by their weight; that this vat was built by appellee in 1908, in accordance with plans given it by the Government inspector located at East St. Louis, and was kept filled with crude oil purchased from the oil fields at Chanute, Kansas, on the recommendation of said inspector, and for the purpose of dipping tick infested cattle and horses; that appellee had frequently dipped cattle in this oil without injury to them, prior to the dipping of appellant’s horses, and two horses had been dipped prior thereto without injury; that on June 28, 1909, appellants bought said horses in good health and flesh at the stock yards of Campbell-Keid & Western Sale Stables Company; that they were quarantined at the time they were bought and the announcement was made in hearing of appellants that they were “tick horses,” and that the government required that they be dipped, if purchased, and- appellants knew the horses would have to be dipped before the government would allow them moved; that after the purchase Mr. McGilton, one of the appellants, tried several times to get the horses released without being dipped, but Dr. Clancy, the government inspector, refused to release them without being dipped; that appellants then arranged with appellee to dip the horses at fifty cents per head, and on July .3, 1909, they were dipped and again locked up in appellee’s sheds to await the results and ascertain if the ticks were killed, the killing of the ticks being the purpose of the dipping; that they were dipped under the supervision of the government’s inspectors, the requirements being that every horse be completely submerged in the oil, and that oil be poured on the uncovered spots of those that were not completely submerged; that within a few days the hair on all the horses came off, their hides began to dry and became sore and cracked open, and within a month or so all but thirteen of them had sickened and died and the remaining thirteen were seriously damaged.
    The declaration charges that the U. S. Cfovernment inspector, acting for the Bureau of Animal Industry of the U. S. Department of Agriculture, found said horses to be affected with a kind of tick that might cause them to communicate disease to other horses, and that under the rules of the U. S. Department of Agriculture controlling the Bureau of Animal Industry, appellants were required by appellee to cause said horses to be dipped in some solution that would destroy said tick; avers that appellants employed appellee to dip said horses, and that appellee negligently dipped them in a vat containing some solution unknown to appellants, and of such a character as to eat and destroy the hair and hides of said horses and to kill them.
    W. E. Knowles and D. J. Sullivan, for appellants.
    M. W. Borders and Dan McGlynn, for appellee.
   Per Curiam.

Some questions relative to the admissibility of evidence are argued by appellants in their brief; but the only question necessary for us to consider, in our view of the ease, is, does the evidence in this record fairly tend to prove that appellee was negligent in using the Chanute crude oil for the dipping of appellants’ horses? The evidence does not sustain appellants’ contention that ’appellee required of them that they have the horses dipped in the crude oil, or otherwise dipped. The exact situation was that the government inspector would not suffer the horses to he moved from the quarantine pens or stables until they were freed from the dangerous tick with which they were infested, because it would endanger other horses with which they might come in contact. The appellee could not afford to release the horses to appellants in violation of the quarantine regulations, and would not do so without consent of the government inspector. Appellee was entirely justified in this position. In fact it could not legally do otherwise. To do otherwise it would have assumed the responsibility, and would have incurred the penalties of violating the quarantine regulations of the government. Appellants had horses infested with the dangerous tick. They were quarantined for that reason. It was up to appellants to rid the horses of this pest and kill the ticks. The vats of appellee were there and had been successfully used on cattle and two other horses prior to that time. The inspector was willing to permit them to be dipped, and to personally inspect the dipping to see that it was thoroughly done. Appellants not being able to get them released without dipping, or without removing and destroying the ticks in some other way, employed the appellee to dip them, and the inspector was present at the dipping, and saw that it was thoroughly done. They were then again put into the sheds and locked up to await results; and when it was determined that the horses were free from the ticks some ten or more days thereafter, they were released and by appellants taken to a pasture, those that were not dead. ■ Appellee alleges that under the rules and regulations promulgated by James Wilson, Secretary of Agriculture, effective April 1, 1909, in pursuance of an Act of Congress, it was not permitted to load out said horses for shipment until after they had been dipped in a manner approved by the Secretary of Agriculture, under the supervision of an inspector of the Bureau of Animal Industry. The following parts of said regulations were introduced in evidence, to wit:

“Regulation 17. At any time of the year cattle of the quarantined area or other cattle exposed to or infested with ticks (Margaropus annulatus), which have been properly dipped in Beaumont crude petroleum or otherwise treated in a manner approved by the Secretary of Agriculture, under the supervision of an inspector of the Bureau of Animal Industry, and which have been examined and certified by the said inspector to be free of infection, may be shipped interstate, subject only to such restrictions as may be imposed by State, Territorial or District officers at points of destination. Provided, that when cattle are to be dipped, as specified herein, they shall, within six hours immediately prior to dipping, be given an opportunity to drink sufficient water to quench their thirst. Shipments of cattle that have been dipped or treated as herein provided shall be forwarded in clean, disinfected cars, shall be accompanied by the certificates of dipping or treatment issued by the inspector supervising the same, and shall not be driven through the quarantined area or be unloaded therein, except as to such points as may be designated in the rules of the Secretary of Agriculture.
“The interstate movement of horses and mules infested with ticks (Margaropus annulatus) may be made only in accordance with the regulations and rule governing the interstate movement of tick-infested cattle.”
CRUDE OIL FOE DIPPING CATTLE.
“Inspectors having charge of official dipping of cattle may, upon request of the owner, permit the use of crude petroleum which does not strictly conform to the specifications of the department with respect to boiling point, gravity and sulphur content. In such cases it must be explained to the owner that the department, as in all other cases, assumes no responsibility for the effect of such oils upon the cattle or upon the disease. If such dippings are carried out, the cattle should not be passed by the inspector until he has assured himself that the treatment is efficacious. In addition the inspector should forward a quart of the oil used to the Biochemic Division, Bureau of Animal Industry, U. S. Department of Agriculture, Washington, D. 0., together with a report showing the effect of the oil on the cattle and on the ticks or scab mites, as the case may be.”

It is urged by appellants that the government did not recommend Chanute crude oil for the dipping of horses, and that appellee was in no wise warranted by the government regulations in the use of the oil in question, and that therefore it was negligent in using such oil without gaining a knowledge of its effects upon horses. The regulations, however, do approve of the use of “Beaumont crude petroleum,” and “crude petroleum which does not strictly conform to the specifications of the department,” upon request of the owner. As has been set forth in the statement, it is also true that appellee consulted the government inspector, and bought and used the very crude oil recommended by the inspector. In other words, the appellee used all reasonable means- at its hands to ascertain and build the proper vat for dipping and bought what was recommended to it as the proper crude oil to put in the vat. The source of information was from the very man supposed to know what oil was proper, the man appointed by the government for the purpose of inspecting horses and superintending the dipping of them when it was done. The evidence does not show that there was any other source of knowledge at hand, or that was obtainable at that time elsewhere. The business of dipping horses in crude oil or in other solutions for the purpose of destroying the tick, so far as this evidence shows, was entirely new. The appellee was not shown to have any knowledge of any bad effects of this oil on horses. It had been recommended by the inspector for horses and cattle. It had proven to be a success on cattle, and without bad or dangerous results. So it had been used with no bad results on two horses prior thereto. In other words, the evidence fails to show negligence of this appellee in the use of this particular oil; and it cannot be presumed from the mere fact that the horses were injured by the use of the oil. It is very unfortunate that appellants must lose the $2,512.50 paid for these horses, and the heavy expenses they were out in feeding and caring for them while sick. On the other hand it was the duty of appellee in the handling of horses, cattle or other animals to comply with the requirements of the Bureau of Animal Industry, or suffer the penalty as a consequence of such failure. Hurd’s Bev. Statutes, chap. 8, secs. 62-3-4-5. The evidence merely discloses an honest effort on the part of appellee to comply strictly with the regulations prescribed by the government. It used reasonable efforts to find out the proper oil to use, and the mistake, if it was a mistake, is not attributable to its negligence. It was only required to use the same degree of care and diligence which an ordinarily careful and prudent person would exercise under the same or similar circumstances. When measured by this standard, we think all reasonable minds must agree that the appellee is not guilty of the negligence charged. As the facts bearing upon this question are not controverted, and de not fairly tend to prove negligence on the part of the appellee, the court properly instructed the jury to find a verdict of not guilty. Libby, McNeill & Libby v. Cook, 222 Ill. 209.

The judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Village of Upper Alton, Appellant, v. Alton Gas & Electric Company, Appellee.

      Mandamus—when does not He to compel laying of gas mains. Mandamus will not be awarded to compel the laying of gas mains if the right to lay gas mains as conferred by an ordinance is permissive and enabling and not imperative and obligatory. Beld, further, that the awarding of the writ will be denied in the absence of a showing that such mains are desired or needed by residents of the streets in Question and that there exists on such streets a sufficient demand for gas to insure to the company a sufficient return for its necessary outlay in laying such mains.
    Mandamus. Appeal from the Circuit Court of Madison county; the Hon. Geobge A. Cbow, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed November 11, 1911.
    Statement by the Court. Judgment was rendered in the lower court for appellee on demurrer to the petition of the appellant for a writ of mandamus at the relation of its president, to compel appellee to extend its gas mains through certain streets in the petition mentioned, by virtue of an ordinance passed by appellant, March 31, 1906, on petition of appellee signed by the owners of more than one-half the land and lot frontage on said streets. The village appeals from that judgment.
    The petition of appellee and the frontage owners asked the president and trustees of appellant to pass an ordinance granting to appellee “The right, privilege and franchise to it and its successors and assigns, to lay, maintain and use gas mains, pipes, feeders and service pipes,” in certain streets therein named, “for furnishing gas for light, heat and other purposes.” The ordinance is entitled, “An ordinance granting unto the Alton Gas & Electric Company, its successors and assigns, to lay and maintain gas mains or pipes in certain streets in the village of Upper Alton.”
    The material parts of the said ordinance necessary to this decision are as follows:
    Section 1. “That a petition in accordance with the statute in such case made and provided, duly signed by the owners of the land representing more than half of the frontage * * * having been presented to said President and Board of Trustees, the right, privilege and franchise be and is hereby granted to the Alton Gas & Electric Company of Alton, Illinois, its successors and assigns, to lay, maintain and use gas mains, pipes, feeders and service pipes in the following streets or parts of streets in said village, for furnishing gas for light, heat and other purposes, to-wit: ’ ’ (Parts of nine streets are then named and designated.)
    Sec. 2. “That said Alton Gas and Electric Company shall commence furnishing gas to said village within one year from the date of the acceptance of this ordinance, and said company by its acceptance of this ordinance undertakes and agrees not to charge any greater price for fuel and illuminating gas than may be charged therefor by said company, its successors and assigns, in the City of Alton.”
    The ordinance then further provides that said company in laying pipes for gas, shall leave the streets in as good condition as it found them; and, in case of failure so to do, to pay the city the expense of so repairing them; that whenever the city shall change the grades of any of said streets the company at its own cost shall raise or lower its pipes to correspond with the new grade; that the company shall hold the city harmless against all damages to person or property by reason of the operation of said gas mains; and that the ordinance shall not be construed as “an exclusive grant,” and that the village may at any time “grant any other company the right and franchise to lay and maintain gas mains in said village.”
    The petition avers that after the ordinance was accepted by appellee, it proceeded to lay its gas mains in some of said streets mentioned, and in parts of other streets, but failed to place or lay any gas mains in all of said streets. The petition then specifies portions of said streets in which it avers no gas mains were laid by appellee.

      Johu F. McGinnis, for appellant.
    Schaefer, Farmer & Krueger, for appellee.
   Per Curiam.

The Circuit Court properly sustained the demurrer to the said petition for several causes specified in appellee’s demurrer, all of which are challenged as insufficient by appellant.

First. It is optional with appellee as to whether or not it will lay its gas mains on any or all of the streets named in the petition. A careful examination of the ordinance in all its parts does not reveal a single section or sentence that imposes on appellee a positive obligation to lay and maintain gas mains in every one of the nine streets mentioned in the ordinance. Particularly must we so hold in the absence of any showing or claim on the part of appellant in its petition that such gas mains are desired or needed by residents on said streets, and that there exists on such streets a sufficient demand for gas to insure appellee a sufficient return for its necessary outlay in laying such gas mains. The character of this ordinance as shown in all of its sections when considered together, is aptly described by the following language used by the court in State of Minn. v. The S. M. R. R. Co., 18 Minn. 49, to wit: ‘ ‘ Certainly there is nothing in these passages of the statutes (ordinances) which in terms impose the complete and perfect legal obligation spoken of upon the defendant. The language is permissive and enabling, not imperative and obligatory.” In such case the appellee must be construed under the ordinance to be granted the mere right to lay the gas mains in such streets as -it may determine; and if it determines not to do so because of no sufficient demand for gas, or for any other reason satisfactory to itself, there is no legal cause for complaint if it does not elect to lay gas mains in any of such streets. After it has laid gas mains in some or all of such streets in pursuance of such ordinance, it might then be compelled to carry out all of the provisions of the ordinance in every particular as to such streets; but until it has laid the gas mains and entered upon the enterprise contemplated by the ordinance, it is optional on its part as to whether or not it shall lay gas mains in any or all the streets, and it.cannot be compelled to do so by mandamus. The York and N. M. Ry. Co. v. The Queen, 1 Ellis & Blackburn (72 Eng. Com. Law) 858; San A. St. Ry. Co. v. State, 35 L. R. A. 662; People v. N. Y. L. E. & W. R. R. Co., 104 N. Y. 58; Sherwood v. At. & D. R. Co., 94 Va. 291; Northern Pac. R. Co. v. Washington T., 142 U. S. 492; High on Extraordinary Legal Remedies, Secs. 315, 316, 317. The laying of part of the streets with gas mains, however, would not be grounds of compelling appellee to lay gas mains in all the said streets. Same authorities.

Second. The petition does not allege that there is any public demand for gas along any or all of said streets named, or that there are in fact any residents on said streets. This objection to the petition is so clearly sound as to scarcely need argument or authorities to support it. The ordinance gave the appellee a year in which to ‘1 commence’’ to furnish gas to said village. It clearly has begun to furnish gas to the village as shown by the petition. In no event could it be required to furnish gas to persons not wanting gas, nor at places where gas was not required or desired. In other words, if the ordinance was in terms imperative and obligatory, appellee could only be required to furnish gas in such quantities demanded or required by the village and its -citizens. In the absence of some showing by averments that more gas was required or needed by the village or its inhabitants, no court would be warranted in- compelling the appellee to either furnish more gas or lay gas mains for the purpose of furnishing gas to persons not shown to exist or to have needs for gas. So far as shown by the petition it is prosecuted in the interest of persons not named or shown to exist. Neither does it appear from any allegation in the petition that the outlay for such gas mains would he in any part met by the sale of gas on said streets. “The granting of the writ of mandamus is discretionary with the court, in view of all the existing facts and with due regard to the consequences which will result.” The People v. City of R. I., 215 Ill. 488; Kenneally v. Chicago, 220 Ill. 485.

The writ, if granted, must also be effectual as a remedy, and it must be within the power of the respondent, as well as his duty, to do the act in question. The People v. City Council of Chicago, 106 Ill. App. 72.

There is no averment in the petition showing it to be within the power of the appellee to do the things required of it.

Other reasons are suggested why the demurrer should be sustained, but it will not be necessary to consider them.

For the reasons aforesaid the judgment of the lower court is affirmed.

Affirmed.


text:
    John R. Griffith, Appellee, v. H. B. Parks et al., Appellants.
    1. Deceit—what not defense to action of. Negligence is not available as a defense by a party who has been guilty of fraudulent conduct, as against his own deliberate fraud.
    2. Deceit—what not defense to action of. Where a defendant knowingly colludes with plaintiff’s agents to defraud the plaintiff, he is in no position to reap the advantages of his wrong by saying that plaintiff did not use reasonable prudence to detect the fraud of his agents whom he had a right to believe were looking out for his best interests.
    Action in case. Appeal from the Circuit Court of Effingham county; the Hon. J. C. McBride, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed November 11, 1911.

      Statement by the Court. Appellee, Griffith, sued appellants in an action of case for fraud and deceit, and obtained judgment against them for $1,000.
    Appellee employed appellants, Parks.and Thomas, real estate agents in Altamont, to trade his two-story brick business house in Altamont and the furniture therein, for black land in northern Illinois, for which services he was to pay said firm two per cent commission. The building was worth about five thousand dollars; and the stock of furniture, about three thousand dollars. The building was mortgaged for two thousand dollars. A few weeks afterward appellant, Thomas, told appellee that he had a good trade for him, that he had a good piece of northern land, black soil, yellow clay subsoil, and was just what appellee wanted. This land was then said to be owned by the appellant, Witwer, a real estate agent with office at Kinmundy, Illinois. Appellee’s house and stock was later examined by Henry Witwer, brother of C. W. Witwer, appellant; and appellee was informed by Thomas and Parks that they had made arrangements with Henry Witwer to go with appellee and Parks and Thomas to see the land. Afterwards Thomas informed appellee that Henry could not go because he had to see other- parties; and further informed him that C. W. Witwer would be down that night on the C. & E. I. train at 10:30, to go with them to see the land. Thomas and appellee took that train at Altamont and found O. W. Witwer thereon. He informed them that he could not go with them to see the land, as he had to get off at Shelbyville to see about another deal. Witwer then gave instructions to Thomas how to find the land, and ]eft them at Shelby-ville. Thomas then proceeded with appellee and showed him the N. E. N. W. qr. and the N. W. N. E. qr. of Sec. 26, T. 29 North, Range 11 West of 2nd P. M., in Iroquois county. No trade was then made, as appellee did not like the land well enough. Later, however, after talking the matter over with his father, appellee and Witwer agreed on a trade by which Witwer was to deed appellee the eighty acres of land and pay him four hundred dollars in money in exchange for appellee’s house and furniture, subject to the mortgage on the building. Instead however, of deeding to appellee the land he was shown by Thomas, Witwer deeded to him the N. E. N. W. qr. and the N. W. N. E. qr. of Sec. 36, T. 29 N., Eange 11 W. of 2nd P. M., in Iroquois county, being land that appellee never had seen, and which he claimed was very inferior in quality and value to the land he thought he was getting. On finding out later that he had not gotten the land he was shown and for which he. had traded, he gave notice thereof to all the appellants; and they refused on demand to rectify his wrong in any way, claiming that it was a mistake for which they were not responsible.
    Appellee charges in substance in his declaration, that the appellant, Thomas, by the aid and contrivance of appellants, Parks and Witwer, with the design and purpose of inducing appellee to exchange his said brick building and furniture store to the appellant, Witwer, for the said eighty acres of land owned by the appellant, Witwer, and situated in said Sec. No. 36, and with the intent to cheat, deceive and defraud appellee, knowingly, designedly and falsely represented to appellee that the eighty acre tract of land in said Sec. No. 26 was in fact the land that was proposed to be deeded to him by Witwer in exchange for his store and furniture. Avers that by reason of such false representations and pretenses, appellee relying thereon was deceived and induced to make said exchange for said land in said Section 36, in good faith believing that the same was the said land in said Section 26, and that the said Charles W. Witwer did thereby fraudulently obtain from appellee his said store and furniture; that said land so exhibited to appellee was land of four times the value of the land so deeded to him as appellants well knew; wherefore appellee is greatly injured, etc.
    Wright Bros. & Denton and G. F. Taylor and W. S. Holmes, for appellants.
    Bryon Piper and Zimmerman & Rinehart, for appellee.
   Per Curiam.

It is first argued by appellants that the evidence in this record does not sustain the verdict and judgment; that there is no evidence to show that appellants, Parks and Thomas, had any understanding or agreement with either Charles W. Witwer or his brother, Henry, that Thomas was to show appellee a different piece of land from that that was to be traded to appellee; and therefore a verdict should have been directed for appellants. We have examined the evidence in the record carefully and find that the evidence and the circumstances as testified to by appellee and his witnesses tend strongly to prove that the appellants entered into a conspiracy to defraud appellee in the manner claimed by him. There are some very strong facts testified against appellants that are not denied by any of them. Appellee testified that Henry Witwer told him that his brother had owned this land five or six months and that it was an eighty acre tract of black land with clay subsoil; that Charles Witwer told him that it was prairie land, black prairie land, and had a few scattering trees on it, black land with yellow clay subsoil; that Thomas told him it was a good piece of northern land, black land with a yellow clay subsoil—just what he had always wanted. He also testified that after the trade was made he began to hear rumors and get letters to the effect that he had been shown the wrong land and was cheated, and that he frequently went to Parks and Thomas about these rumors, and that they told him to “keep still,” that they knew everything was all right and that they would get him a deal for the land and dispose of it. He also testified that after he had found out that he had not gotten the land he was shown by Thomas, and that after he had sent for the Witwers and Parks and Thomas and while they and appellee’s father and appellee were together, that Thomas in the hearing of all of them and in answer to Charles Witwer about the trade, said: “Yes, and if he (appellee) had kept his damned mouth shut he would have been rid of the land, and we would have traded it off for him.” The foregoing facts are undisputed, and no reply was made by any of appellants, or any explanation offered by them at the time Thomas made his remarks, or at the trial in their testimony. It is also clearly proved that appellee did not get the land that was shown to him by Thomas, and that he never did see it until after the deal was made. Thomas took another party out to see the same land shown appellee in said Section 26, after the deal was made and tried to trade it off for appellee, and represented to the other party that it was land in said Sec. 36, after he had been hearing the rumors that appellee had been shown the wrong land. This took place on the day that appellee and bis father actually found out that appellee had not seen or gotten the land he supposed he had purchased, and appellee then stopped the attempted second deal. Taking these circumstances with all the other controverted facts in the record, with the further admitted facts that both the Witwers promised to go with appellee and Thomas to see the lands and after-wards declined to go because of other engagements, we think the jury were warranted in their finding against the defendants. It is true that appellants, Witwer and Thomas, denied that they had any side conversation with each other on the train that night, and that Witwer then told appellee that Thomas could show him the land just as well as he, Witwer, could. It is also denied by Thomas that he told appellee that the land shown him was the very land he was to get, and that he again repeated it just before the deal, and said there could be no mistake about it. The jury, however, have settled the controverted facts, and the case against appellants, and we find no legal reason for disturbing their finding on the facts. The jury evidently believed the story of appellee’s witnesses, that the land in Sec. 36 was not black prairie land with a yellow clay subsoil, and with only a few trees standing on it, and that the land in Sec. 26 did answer that description, and that the land in Sec. 36 was thickly timbered with scrub timber and had sandy soil with a blue subsoil, and was of very much less value than the other land.

The verdict and judgment in this case must therefore be sustained unless the court has improperly instructed the jury as to the law of the case, as next claimed by appellants. The substance of the appellants’ objections to appellee’s given instructions is that they omit the element of ordinary care and prudence on the part of the plaintiff as a necessary finding by the jury before rendering a verdict in his favor. In Linington v. Strong, 107 Ill. 295, the court said: “The doctrine is well settled, that, as a rule, a party guilty of fraudulent conduct shall not be allowed to cry ‘negligence,’ as against his own deliberate fraud. Even where parties are dealing- at arm’s length, if one of them makes to the other a positive statement, upon which the other acts (with knowledge of the party making such statement) in confidence of its truth, and such statement is known to be false by the party making it, such conduct is fraudulent, and from it the party guilty of fraud can take no benefit. While the law does require of all parties the exercise of reasonable prudence in business of life, and does not permit one to rest indifferent in reliance upon interested representations of an ádverse party, still, as before suggested, there is a certain limitation to this rule, and, as between the original parties to the transaction, we consider that where it appears that one party has been guilty of an intentional and deliberate fraud, by which to his knowledge, the other party has been misled, or influenced in his action, he cannot escape the legal consequences of his fraudulent conduct by saying that the fraud might have been discovered had the party whom he deceived exercised reasonable diligence and care.” See also to the same effect, Leonard v. Springer, 197 Ill. 532.

The appellee and his agents, Parks and Thomas, are not to be regarded in law as dealing at “arm’s length.” He was not called upon to doubt the truthfulness and honesty of his agents. Neither was he bound to inquire whether or not he was being defrauded by them in the transaction. The relation between them was one of trust and confidence, and therefore it could not be violated by his agents to their own advantage. Calkins v. Worth, 117 Ill. App. 478; Hauk v. Brownell, 120 Ill. 161.

Appellant, Witwer, must have known that Parks and Thomas were the agents of appellee, and if he colluded with appellee’s agents knowingly and for the purpose of taking undue advantage of him in the deal through appellee’s paid agents, he is in no position to reap the advantages of his wrong by saying that appellee did not use reasonable prudence to detect the fraud of his agents who he had a right to believe were looking out for his best interests. Chappell v. McKnight, 108 Ill. 570.

Not only were Parks and Thomas the agents of appellee, but they were on the very best of terms apparently as friends and neighbors. They and their families visited together, met in church and in lodge room together, and were members of the same lodge. There was no reason or occasion, legally or otherwise, for appellee to suspect that he was being made a victim of deceit.

The instructions in this case as a series require the jury to believe from the evidence that all of the appellants contrived the scheme of showing appellee the wrong piece of land for the purpose of defrauding him as charged in the declaration, and that they did defraud him by means of that scheme, and that plaintiff believed their fraudulent representations, and acted thereon to his damage, as a condition to rendering a verdict for appellee. The appellants’ instructions required in addition to the foregoing that the representations must be such and made under such circumstances as to justify an ordinarily prudent man in relying upon them as true. We think that appellants had the benefit of every principle of law in their given instructions to which they were entitled, and that the other objections urged by them are not well taken, and that the judgment should be affirmed. The judgment is therefore affirmed.

'Affirmed.

Mr. Justice McBride took no part in the hearing of this case.


text:
    John Wilson, Plaintiff in Error, v. Railway Steel Spring Company, Defendant in Error.
    1. Master and servant—when doctrine of assumed rish applies. “If a defect is so plain and obvious to the senses that, on the exercise of ordinary care, an employe would discover it, and he continues in the employment without complaint and without any assurances by the master that the defect will be repaired or the danger removed, he assumes the risks arising from it.”
    2. Master and servant—upon what doctrine of assumed rish based. Assumption of risk is not a term of the contract of employment or the agreement of ■ the parties, but is an incident of the relation of master and servant, based upon public policy and upon the maxim volenti non fit injuria.

    3. Master and servant—statutory construction; effect of pern alty. A statute does not change a rule of common law unless an intent appears. When a penalty is imposed for a breach of statutory duty, one entering into employment may in the absence of knowledge assume that the statute has been complied with; but the relation between the parties is not changed.
    4. Instructions—when peremptory proper. Where the evidence does not fairly tend to prove all the averments necessary to make out a case the court should direct a verdict for the defendant.

      5. Factoby Act of 1909—construed. The Factory Act of 1909 so-called does not abolish either the defense of assumed risk or that of contributory negligence.
    Action in case for personal injuries. Error to the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed November 11, 1911.
    Statement by the Court. This is a writ of error to review a judgment of the City Court of Bast St. Louis, on a verdict of not guilty returned by the direction of the court.
    Defendant in error on January 4, 1910, was operating a manufacturing plant in Bast St. Louis for the manufacture of steel springs for railroad cars and locomotives. Plaintiff in error had been in the employ of defendant in error for about eighteen months, and had charge of two testing machines for testing the springs there in the plant. These testing machines were about thirty feet apart; and about half way on a line between them was another machine called a drill-press, used in drilling holes in the said springs. The drill-press consisted of an upright iron column from which an arm eight feet long extended at a right angle. From this arm a bit used in boring holes, extended downward; and the arm was so arranged that it could swing around the column. The drill was driven by an electric motor. The cog-wheels about five inches in diameter attached to the horizontal rod and to another rod connected with the drill, engaged each other at right angles and conveyed the power from the motor to the bit. They stood out about six inches from the column and about three or four feet from the floor, and were wholly exposed and so situated that it was practicable to have them guarded.
    The evidence discloses without controversy that plaintiff in error was thoroughly familiar with the drill-press and cog-wheels on the day of his injury, and testified himself that he knew if he got his fingers caught by the cog-wheels while in motion that he would be injured; that he had not been working there very long before he noticed them, and that they were plainly visible at all times of his employment; that he would pass the cog-wheels nearly every hour of the day in going from one testing machine to the other; that he always knew when the drill-press was in operation, and that he worked in the day time; that on the above date, he was in the act of getting a hammer from a box located near the drill-press, when his foot slipped on some round substance on the floor, causing him to involuntarily throw up his hand, whereby it came in contact with the cog-wheels, and his little finger and the one next to it were ground off to his hand. He also says that there was always rubbish lying around the floor, pieces of steel and iron, while he worked there, and that he was familiar with this fact.
    The declaration was "predicated upon the negligent failure of the defendant in error to perform its alleged statutory duty to enclose said cog-wheels by fence or guards, in violation of section 1 of the Factory Act, which became effective January 1,1910. Laws of Illinois, 1909, page 202.
    D. J. Sullivan, for plaintiff in error.
    Dan McGlynn, for defendant in error.
   Per Curiam.

Plaintiff in error contended in the lower court, and now contends here, (1) that he did not assume the risk due to the failure of defendant in error to comply with the requirements of the statute in reference to guarding the exposed cog-wheels; and (2) that even if that is not true as a matter of law, the question whether or not the risk was in fact assumed by him was a question of fact for the jury. It is clear under the uncontroverted evidence stated, that the plaintiff in error assumed the risk; and that the court committed no error in directing the verdict, unless the “ Factory Act” eliminates the defense of assumed risk. “If a defect is so plain and obvious to the senses that, in the exercise of ordinary care, an employe would discover it, and he continues in the employment without complaint and without any assurance by the master that the defect will be repaired or the danger removed, he assumes the risks arising from it.” “The rule also applies in any case where the servant, during the course of his employment, becomes aware of a defect but voluntarily continues in the employment without objection.” C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492; Christiansen v. Graver Tank Works, 223 Ill. 142.

The declaration was evidently drawn upon the theory that the Factory Act eliminates the defense of assumed risk, for it is not therein alleged that he did not have notice or knowledge of the danger. The evidence in the record clearly shows that the plaintiff in error knew all about the defects and dangers, and there is no evidence in the record showing that he did not have notice or knowledge thereof. Where the evidence does not fairly tend to prove all the averments necessary to make out a case, the court should direct a verdict for the defendant. Libby, McNeill & Libby v. Cook, 222 Ill. 209.

If, as is claimed by plaintiff in error, the statute above mentioned does eliminate as a defense the doctrine of assumed risk, it would not be necessary for the proof to overcome that defense; and the cause in such case should have been submitted to the jury. Sec. 1 of the above act provides that “all drums, cogs, gearing, * * * ; all vats or pans, and all receptacles containing molten metal or hot or corrosive fluids in any factory, mercantile establishment, mill or workshop, shall be so located wherever possible, as not to be dangerous to employes, or shall be properly enclosed, fenced or otherwise protected. All dangerous places in or about mercantile establishments, factories, mills or work-shops, near to which any employe is obliged to pass, or to be employed shall, where praeticable, be properly enclosed, fenced or otherwise guarded.” The statute does not provide for any recovery by the employe against the employer for any damages by reason of any failure to comply with it. The above section is followed by thirty other sections, all of which form a complete code for the government of factories wherein the various kinds of machinery therein described are contained, prescribing how machinery shall be placed, guarded and used. The act also provides for the general sanitation .of such plants, so as to insure pure air, food, water, light, etc., and requires the owners of such plants to provide these various means and measures of safety to employes. The statute also prescribes a number of duties to be performed, and acts to be omitted, by the employes. Sec. 26 of the act imposes a fine upon any such owner, manager, superintendent or agent of such owner of such factories, mills, etc., and upon any employe therein who shall remove or interfere with any guard or protective or sanitary device, required by the act, or who shall violate any of the other provisions of the act, of hot less than ten dollars nor more than fifty dollars; and upon conviction of a second offense, a fine of not less than twenty-five dollars nor more than two hundred dollars. Sec. 25 provides that the chief state factory inspector shall enforce the provisions of the act and prosecute all violations of the act; and is empowered thereby to visit and inspect, at all reasonable times, all such factories. Sec. 31 provides that such inspector for the purpose of disseminating a general knowledge of the provisions of the act among employes shall have prepared a notice covering the salient features of the act in as many languages as may be necessary to make it intelligible to employes, and that such notices shall be posted in a conspicuous place in every office and work room of every establishment covered by the provisions of the act.

It is said by plaintiff in error that the evident purpose of the statute was to preserve and protect the lives and health of employes in factories, mills and such other places of industry; and to hold that the defense of assumed risk may be made to an action for the injury of an employe by reason of a violation of the statute, would defeat the intention of the statute. If the act be viewed from the standpoint of a law suit and the recovery of money therein only, there may be much truth in this statement, this statute, however, was not' framed with an expressed intent of giving any statutory action, or of abolishing either the defense of assumed risk or contributory negligence, and has not provided for the recovery of damages by the employe who is injured by reason of the violation of the statute, as a means of enforcing the statute. The true object of the statute is declared in its title,1 ‘ to provide for the health, safety and comfort of employes, * * * and to provide for the enforcement thereof.” The various methods and means of securing the objects of the statute, and of enforcing the statute, are specifically designated in the act itself. The question of whether or not the act will be an efficient one for its purposes, or whether or not it might be made more efficient by the elimination of the doctrine of assumed risk, is not one for our determination. After carefully examining the statute we are of the opinion that the act does not by express language or by implication eliminate the defense of assumed risk. The authorities bearing upon this question seem to be in hopeless conflict, and our Supreme Court has never expressly passed on the exact question so far as we know. We think, however, that the weight of the authority and the better reasoning support the proposition that the law of assumed risk is as well established as the rule of contributory negligence, or any other principle of the common law, and that -it must clearly appear from the terms of the statute that the legislature intended to abolish it or else it is retained. In one of the leading cases on this subject, Denver & R. G. Co. v. Norgate, 141 Fed. 253, Garland, District Judge, lays down the doctrine in very apt language, thus: “The law regarding the assumption of risk is the law which governs the relation of master and servant, and is independent of the will of either. It is not a term of the contract of employment. If it were, then the master and servant could retain or abolish it in each contract of employment. But they can do neither. It is a principle of the common law, and must be repealed, if at all, by the law making power. It is the law of the land governing all persons who assume the relation of master and servant. It is over and above the contract, and depends in no manner for its existence upon the agreement of the parties. It is founded upon public policy, the status assumed by master and servant, and upon the maxim, volenti non fit injuria

The Supreme Court of Rhode Island, in Langlois v. Dunn W. Mills, 57 Atl. R. 910, said: “A statutory duty is no more imperative in law than a common law duty. A penalty may be imposed upon the offender for a breach of statute, but it does not change the relations between the parties,' except to the extent that one entering the employ of another may assume, in the absence of knowledge, that the terms of the statute have been complied with. * * # It is also well settled that a court will not presume that a statute is intended to change a rule of common law unless such an intent appears. * * * It has been common practice here and elsewhere to construe statutory duties in connection with assumed risks and contributory negligence.” See also Martin v. C. R. I. & P. R. Co., 118 Ia. 148; O’Maley v. South B. G. Co., 158 Mass. 135; Swenson v. Osgood, etc., Mfg. Co., 91 Minn. 509; Anderson x. C. N. N. Lumber Co., 67 Minn. 79; Knisley v. Pratt, 148 N. Y. 372; Powell v. Ashland, etc., Co., 98 Wis. 35; Helmke v. Thilmany, 107 Wis. 216; Browne v. Siegel, Cooper & Co., 191 Ill. 226; Birmingham Ry. & Electric Co. v. Allen, 99 Ala. 359, overruling former decisions in 84 and 91 Ala.

The leading ease opposed to the doctrine set forth in the foregoing decisions is, Narramore v. C. C. C. & St. L. Ry. Co., 96 Fed. 298, in which it was said by Judge Taft in substance, that the doctrine of assumed risk was based on contract, either expressed or implied. He then reasons that when a statute is passed imposing a duty on the master under a penalty, that it is not within the power of the master and servant to contract that the servant shall assume the risk of injury by reason of the violation of the statute by the master, and hence the doctrine of assumed risk is by such a statute abolished whether it expressly does so or not. The reasoning seems to be based on the false . notion that, an assumption of the risk is a term of the contract of employment, expressed or implied. As a matter of fact it never has been a term of the contract in the sense that the parties may create or abolish it by contract at their pleasure. The case is followed and quoted by some other state courts, and is followed as to the law it lays down by other courts, who give little reason for their conclusion. Davis Coal Co. v. Polland, 158 Ind. 607; Green v. Amer. Car and Foundry Co., 163 Ind. 135; Sipes v. Mich. S. Co., 137 Mich. 258; The W. F. & Mfg. Co. v. Bloom, 76 Kan. 127; Green v. W. Am. Co., 30 Wash. 87.

The plaintiff in error refers to some Illinois and New York cases as authority, but they are not in point as the employment of plaintiff in error was not forbidden by the law. These cases were actions by minors under the ages of fourteen years suing for injuries under the statute prohibiting the employment of children under that age in any factory. The recoveries in all those cases were had on the grounds that the violation of the law in employing the minor was the proximate cause of the injuries. In other words it was unlawful to employ minors under fourteen years of age, and in such cases the employer was held responsible for all injuries to them and neither the doctrine of assumed risk nor of contributory negligence was applicable in those cases. The Am. C. and F. Co. v. Armentraut, 214 Ill. 509; Strafford v. The Rep. I. and S. Co., 238 Ill. 371; Marino v. Lehmaier, 173 N. Y. 530.

Plaintiff in error also refers to a number of decisions in Illinois by our Supreme Court under our statutes on Mines and Miners, as applicable to this case, wherein the grounds of recovery were wilful violations of that act by the operators. That statute expressly provides for a recovery by the miner for every wilful violation thereof, and for such damages to bim as are found to be the direct result of such violation. The common law action for negligence is not thereby abolished, but no recovery under the statute can be had except as provided in the statute, and where the violation of the statute is wilful. In suing under the statute the doctrine of assumed risk does not apply. In suing at common law the miner must negative the defense of assumed risk in his pleading and by his proof, although the statute may prohibit under penalty the very act that the plaintiff charges to be an act of negligence. So, the doctrine of assumed risk was held to be eliminated in Kilpatrick v. Grand T. Ry. Co., 74 Vt. 288, because the servant was given a right to maintain a suit for damages received by him by reason of the violation of the act, by the statute itself which prohibited under a penalty the use of side ladders on freight cars. The reason why the doctrine of assumed risk does not apply in those ‘cases is readily seen. It would be ridiculous for a court to say that an employe on freight cars in Vermont should recover damages for an injury to himself by reason of the violation of the statute which required the company to put its ladders on the ends of the cars, provided he, the employe, did not know that the ladders were not on the ends of the cars. Such a ruling would defeat the express provision of the statute that the employe could maintain such a suit, and in every instance. So it would in suits by miners under the statute of Mines and Miners in Ulinois. The doctrine of assumed risk is eliminated by those statutes by provisions therein that are entirely inconsistent with the idea that it was retained.' If the statute in question gave the plaintiff in error a right of action in express terms, he would be entitled to recover, for to deny him such right under such a provision on the doctrine of assumed risk, would be to defeat that express provision of the statute, for he would be bound to know in every such case that the cogs were not guarded, but were open and visible to any one as exposed dangers. However, such provision is not in the statute and we cannot read it there. Our ruling violates no intention of the legislature therein expressed or necessarily implied, and it does not invalidate any part of the statute expressed or necessarily implied. We think the law is against the contentions of plaintiff in error.

The judgment of the court is therefore affirmed.

Affirmed.


text:
    William F. Wayne, Appellee, v. St. Louis & Northeastern Railway Company, Appellant.
    1. Passenger and carrier—when declaration states cause of action. A declaration, states a cause of action where it in apt language charges that the plaintiff was a passenger for hire, that he was in the exercise of reasonable care for his own safety while attempting to alight from the car on which he was riding and that while he was attempting to alight therefrom he was injured by the negligence of the defendant in suddenly starting such car.
    2. Passenger and carrier—when negligence established. If it appear that the conductor in charge of the car upon which plaintiff was riding as a passenger did not afford to the plaintiff a sufficient opportunity to alight, negligence is established.
    3. Passenger and carrier—care required of latter, A carrier is required to exercise the highest degree of care for the safety of its passengers consistent with the practical operation of its roads.
    4. Passenger and carrier—what raises presumption of negli

      pence. An injury to a passenger during the course of his transportation upon a railroad, caused by apparatus furnished by and under the control of the company, raises a presumption of negligence, the burden of rebutting which rests upon such company.
    5. Pleading—when defective declaration cured. After verdict a declaration which defectively states a good cause of action is sufficient.
    6. Contributory negligence—person confronted with danger. A person suddenly confronted with danger without his fault, is not required by law to do any particular thing; and although in cooler ■ moments he might have acted differently, that does not necessarily establish a charge of negligence on his part.
    7. Appeals and errors-—when propriety of argument not saved for review. In order to save for review a ruling of the court upon remarks of counsel, such remarks, together with an exception to the ruling of the court thereon, must be preserved in the bill of exceptions.
    8. Instructions—when upon question of damages in prima facie case not erroneous. While it is usual to prove the wages earned and opportunities to earn same when the party injured is working for wages, it has never been held that a farmer or merchant must show what money or profits he is making when working for himself in such trades in order that he may recover for loss of time or inability to work.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed November 11, 1911.
    Statement by the Court. This is an appeal from a judgment - rendered in the lower- court for the sum of $2,250 in favor of William P. Wayne, appellee, and against the St. Louis & Northeastern Railway Company, appellant.
    Appellant was an electric interurban railway company, operating through the city of Edwardsville over and along Hillsboro avenue. The waiting room of said company is on Hillsboro avenue near the center of said city, and going easterly towards the city limits the tracks of the appellant cross the tracks of the Litchfield & Madison Bailroad about four and one-half blocks easterly of the waiting room. At a point about one hundred and twenty-five feet west of this crossing a derail is so constructed that all cars of appellant must stop for the conductor to go forward to see that the track is clear and to pull a lever so that the derail will permit the car on signal of the conductor to pass safely over the crossing. There is no cross street at this crossing, the next public street crossing being at St. Andrew’s .avenue several hundred feet east of the railroad crossing. Plaintiff was engaged in the grocery business, and for two years had been accustomed to ride in the car of appellant in said city from near his place of business easterly to this railroad crossing; and to alight from the car there to go to his home, while the conductor was performing his duty of throwing the derail and arranging for the safe passage of the car over the crossing. On August 19, 1908, while thus alighting from the car, appellee’s shoe heel was caught and held fast in a crack or split in one of the steps of the car of appellant so that he could not remove it and alight before the car was started over the crossing by the conductor’s signal. He was thrown violently on the pavement there by reason of his shoe heel being thus held and by the starting of the car while thus held. He received a fracture of the neck of the femur just outside of the ball and socket joint of the hip, by reason of his fall; and by reason thereof had to lie on his back for eight or ten weeks while being treated, suffered great pain, and spent several weeks thereafter on crutches, and was so permanently disabled that he has not been able to pursue his business of grocery-man since his injury.
    The declaration contains one count and charges that “by and through the negligence of the defendant, the heel of the left shoe of plaintiff was caught, held and torn from his shoe by the defective condition of one of the steps of defendant’s car, while plaintiff with due care was attempting to alight from said car at the Litchfield & Madison Railway crossing; and by means thereof and on account of the negligence of the defendant plaintiff was thrown by the starting of the car while his heel was caught as aforesaid in the said defective step,” etc.
    Terry & Gueltig, for appellant; George W. Burton, of counsel.
    C. H. Burton and W. J. Lawler, for appellee.
   Per Curiam.

Appellant’s claim that the declaration does not state a cause of action cannot be sustained. No particular objections have been pointed out to the declaration. The declaration in apt language charges that appellee was a passenger for hire; that he was in the exercise of reasonable care for his safety while attempting to alight from the car; and that while he was attempting to alight therefrom he was injured by the negligence of the defendant as set forth in our statement. It is said by appellant that the declaration is merely a statement of a defective cause of action. The most that could be said against the declaration is that it is a defective statement of a good cause of action as to the negligence charged. After verdict we think the declaration is good and sufficiently definite as to the negligence charged.

It is also claimed that there was a variance in the negligence proved, from the negligence charged in the declaration. We are unable to understand appellant in this contention. It is clearly proved, without controversy, that the two things that caused the appellee’s injury were the defects in the step of the car that held the shoe heel of appellee, and the starting of the car and dragging him while in this condition before he could extricate his foot and alight from the car. The declaration alleges that his foot was caught by the negligence of the defendant in having the defective step, and that he was injured by this negligence and by its negligence in starting the car while he was thus held. The evidence is slight bearing on the question of negligence of the defendant, so far as the charge is made with reference to the defective step. The conductor of the car gave about the only description of this defect. He describes it as a small seasoned crack or split in the end of the board of the first or bottom step where the washer and bolt went through it, about the size of an ordinary knife blade, a crack or split that would hardly be noticed. He testifies however, as does another witness, that a portion of appellee’s shoe heel was found in this crack just after the injury. This corroborates appellee’s testimony that his left shoe heel was caught and held fast on the step while he was alighting, but shows that appellee must have been mistaken in his statement that his shoe heel was caught on the second or middle step of the car. It is clear, however, that the defendant by its conductor was guilty of negligence in starting the car while appellee was thus on the steps trying to alight; and the jury were clearly warranted in finding from the evidence that the negligence of the ' defendant in thus starting the car was the proximate cause of the injury to appellee. The conductor of this car testified: “"When the car approached the L. & M. crossing I announced, ‘L. & M. Station.’ I was on the rear part of the car. Gar doors were open; it was a bright, sunny day. I got off and ran ahead.— In leaving the car to throw the derail I went about one hundred and twenty-five feet.—I pulled the lever, then signaled the motorman. At the time I signaled I saw Mr. Wayne on the steps; he was standing on the bottom steps as well as I could see, one hand on the grab-iron. I knew he was going to get off there; he unloaded along there some place every day. He most always got off before the car stopped, and I seen him step off after the car started.”

It was the duty of the conductor to give appellee an opportunity to safely alight before signaling the car to start. The jury evidently found that the appellee was injured by reason of bis negligence in this particular. The railroad company was required to exercise the highest degree of care for the safety of its passengers consistent with the practical operation of the road. It is inconsistent with the foregoing rules of law to permit a conductor to start his car when he knows a passenger is alighting, upon the mere speculation that the passenger has alighted safely before when the car was in motion, and therefore can do so again.

It is also the law that an injury to a passenger during the course of his transportation upon a railroad, caused by apparatus furnished by and under the control of the company, raises a presumption of negligence, the burden of rebutting which rests upon such company. No rebutting testimony of any kind was offered to any of the foregoing evidence. N. Y. Chic. & St. L. R R Co. v. Blumenthal, 160 Ill. 40; Chicago C. Ry. Co. v. Smith, 226 Ill. 178; and Same v. Shreve, 226 Ill. 538.

We are also unable to agree with appellant’s contention that appellee failed to prove that he was in the exercise of reasonable care for his safety at and before his injury. The crossing in question is clearly shown by all the evidence bearing on that subject to be a regular stopping place to let passengers on and off the car. The appellee had gotten on and off the car there for more than two years of regular daily travel. The conductor collected his fare for that station knowing that he would get off there. The conductor called out the station when the car was approaching the station evidently for passengers to alight there; and just across the track of the L. & M. at the derail on the west-bound track were persons waiting to take the next car on the west-bound track, two of whom were witnesses for appellant in this case.

It was a question for the jury under the evidence, whether or not appellee was guilty of negligence in getting off the car or in stepping down off the step of the car with his right foot, when he knew the car was going to start and that his foot-was held fast. He testified that he had plenty of time to have stepped on the ground while the ear was stopped, if his foot had not been caught. A person suddenly confronted with danger without his fault, is not required by law to do any particular thing; and, although in cooler moments he might have acted differently, that does not necessarily establish a charge of negligence on his part. C. & A. R. R. Co. v. Corson, 198 Ill. 98. Neither is it negligence per se for a passenger to ride on the street car steps, nor to get on or off a street car in motion. Peterson v. Elgin, A. & S. Tr. Co., 238 Ill. 403; The North C. St. R. R. Co. v. Wiswell, 168 Ill. 613.

As to the question of improper remarks of appellee’s counsel to the jury, raised by appellant, it does not properly arise on this record, as the ruling of the court thereon and the exceptions thereto, if made, are not preserved in the record. Such objections and exceptions cannot be preserved simply by an affidavit of some bystander, but must be certified to by the trial judge.

The objection to appellee’s instruction on the measure of damages is untenable. Appellee proved loss of time and inability to work at his business. He was not on a salary, and had not worked for a salary so far as the evidence showed. He proved permanent disability and almost total inability to work. His past profits on his business would not have been a proper element of damages, because in their nature speculative. He was not required to prove in dollars and cents what his injuries were worth, or as to what he might have earned in the future, or as to what he would have made in his grocery store for the time he was laid up with his injuries. It is usual to prove the wages earned and opportunities to earn same, when the party injured is working for wages; but so far as we know, it has never been ruled that a farmer or merchant must show what money or profits he is making when working for himself in such trades, in order that he may recover for loss of time or inability to work. The damages awarded by the jury are very reasonable in this case, and are not excessive in onr judgment.

Finding no reversible errors in this record, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    The People of the State of Illinois, ex rel. John Wildi et al., Appellees, v. Theodore Ittner, Appellant.
    1. Corporations—function of valid by-law. A by-law once enacted is as much a law of the corporation as the charter itself, provided it is in conformity with the charter and does not contravene public laws or any principles of public policy, no matter how inconvenient or embarrassing its effects may be as to the individual members.
    2. Corporations'—what by-laws valid. By-laws are valid which provide that to qualify as a director two shares of the capital stock must be registered in the name of such director, and further, that such director must not be directly or indirectly interested as a stockholder in any competing business.
    3. Corporations—effect of ratification of by-laws by stockholders. The power to adopt by-laws being solely in the directors ratification by the stockholders of by-laws adopted by th*e directors adds nothing to their validity.

      Quo warranto. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Statement by the Court. This is a quo warranto proceeding to try the title of Theodore Ittner to the office of director of the Helvetia Milk Condensing Company. The information alleges in substance that the relators, John and Louisa Wildi, are stockholders in said company; that they own more than one-third of the entire stock of said company, and that said John Wildi has owned more than one-third of the stock of said company for more than ten years; that at an election for directors of said company in February, 1910, the relators voted said stock for John Wildi and Louisa Wildi for directors of said company; that each of said relators received at said election 455 votes, and that said Theodore Ittner, appellant, only received 151 votes, and was declared as one of the five directors elected at said election; and that the relators were denied the office of director of said company, notwithstanding the fact that they received at said election more votes than any one of the five candidates declared elected as such directors.
    To said information the respondent filed his plea alleging that though the relators received the - highest number of votes cast for any persons in said election, yet the relators were deprived of said office, because under the by-laws of said company they were ineligible to serve as directors of said company; that John Wildi held stock and was a director and president of another company engaged in the same line of business at said time and competing with Helvetia Milk Condensing Company; and that Louisa Wildi was the wife and immediate member of the family of John Wjjyj, and had not been the owner and holder of two shares of stock standing in her name on the books of the company for at least six months prior to said election; and that the five persons that were declared elected directors were stockholders and eligible to said office of director. The plea then sets out the by-laws of said corporation company in justification of the board of directors in refusing to count the votes cast for the relators, and in declaring five others who had received less votes as duly elected directors, which by-laws are in the following words and figures, to wit:
    ARTICLE 2.
    “Section 1. The corporate powers of this corporation shall be vested in a board of five directors, each of whom must possess the qualifications as provided for in Clauses A, B, C, D and E of Section 1, of Article 4, of the amended revised by-laws of this corporation.
    article 4.
    “Section 1. The Board of Directors shall consist of five directors, each of whom must possess the following qualifications to entitle him to such directorship:
    “Paragraph A. He must be a bona fide holder and owner of not less than two shares of the capital stock of this corporation, registered in his name.
    “Paragraph B. He must be a bona fide owner and holder of such two shares of stock standing registered in his name at least six months prior to the annual stockholders’ meeting at the time of his election.
    “Paragraph C. He shall not be directly or indirectly interested as a stockholder in any other firm, company ' or association that may be engaged or formed, incorporated or assoeiaíñafor the purpose of engaging in the purchase, manufacture or sale of condensed milk, condensed cream, evaporated milk, evaporated cream or any dairy products of a similar character manufactured and sold by this corporation.
    “Paragraph D. He shall not be the immediate member of the family of any stockholder in any other firm, company or association that may be engaged or formed, incorporated or associated for the purpose of engaging in the purchase, manufacture or sale of condensed milk, condensed cream, evaporated cream, evaporated milk or any dairy products of a similar character manufactured and sold by this corporation.
    “Paragraph E. He shall not be an officer, agent, employe, attorney or trustee in any other firm, company or association that may be engaged in the purchase, manufacture or salé of condensed milk, condensed cream, evaporated milk, evaporated cream or any dairy products of a similar character manufactured and sold by this corporation.”
    To the foregoing plea the court sustained a demurrer, and the respondent having elected to stand by his plea, the court rendered judgment that he be ousted and prohibited from exercising the functions of said director, etc. The respondent appealed to this court.
    J. P. Streuber, Schaefer, Farmer & Kruger and Warnock, Williamson & Burroughs, for appellant.
    John F. Gillham, Wise, Keefe & Wheeler and Wilfley, McIntyre & Nardin, for appellees.
   Per Curiam.

The only question presented for our

decision in this case is whether or not the by-laws which by their terms disqualify both relators, appellees, from being directors in the Helvetia Milk Condensing Company, are such by-laws as can be legally passed by the board of directors of said company, and ratified by its stockholders. No other question is raised as to the sufficiency of the pleadings; and it is averred in the plea of the appellant that the said Helvetia Milk Condensing Company, by its directors, on February 21, 1908, adopted said by-laws for the government of said coporation; and that they were ratified by its stockholders. It is insisted very strongly and ably by the learned counsel for the appellees that the corporation had no power to pass by-laws of the character of the said by-laws that disqualifies the appellees as directors. The power to make by-laws is inherent in every corporation whether expressly given to it or not by the statute that created it. Among the powers that are necessarily and inseparably incident to every corporation, as enumerated by Blackstone, is the power, “To make by-laws or private statutes for the better government of the corporation; which are binding upon themselves, unless contrary to the laws of the land, and then they are void. This is also included by the law in the very act of incorporation; for as natural reason is given to the natural body for the governing it, so by-laws or statutes are a sort of political reason to govern the body politic.” Cooley’s Blackstone, Book 1, 475. The same doctrine has been frequently announced by the courts of this country, and a by-law once enacted is as much a law of the corporation as the charter itself, provided it is in conformity with the charter and does not contravene public laws or any principle of public policy, no matter how inconvenient or embarrassing its effects may be to the individual members. Kent v. Quicksilver M. Co., 78 N. Y. 179; Weatherly v. Med. & Surg. Society, 76 Ala. 567; Cummings v. Webster, 43 Me. 192; Green v. Board of Trade, 174 Ill. 585.

This doctrine is not disputed by appellees; but they insist that, “the matter of prescribing qualifications for directors is a power only in the body creating the corporation, and to be found only in the fundamental law of the corporation—that is, in its charter.” It is also insisted that there is no authority “For the proposition that the corporation may prescribe qualifications (of directors), in the absence of delegation in the charter of power to do so.” Our investigation of this question leads us to the conclusion that in the absence of some provision in the laws or the charter for the government of corporations that expressly or by implication denies the right of the corporation to prescribe qualifications for its directors, that it has the right to do so, with the limitations above set forth in the making of by-laws generally. Thompson on Corporations, Vol. 1, Sec. 918, (2nd Ed.), says: “A corporation may prescribe by by-laws the qualifications for its directors as well as other officers, but such by-laws must not be inconsistent with the charter or general statute.”

In Elliott on Corporations, Sec. 498, it is said: “A director is merely an agent, and any person who has capacity to contract may be a director of a corporation. Ño special qualifications are necessary unless required by the charter or by-laws.”

Purdy’s Beach on Corporations, Vol. 2, Sec. 713, states the law thus, “any person is eligible to appointment as director, or any corporate officer, if no qualification is prescribed in the charter, general statute or by-laws.” In Sec. 714 thereof he says: “in the absence of charter or statutory regulation thereof, the shareholders may, in the by-laws adopted by them, prescribe the qualifications of the managing board.”

Cook on Corporations, Sec. 623 (Fifth Ed.), states the rule thus: “A corporation may pass a by-law prescribing the qualifications of its directors and may prescribe that a person who is an attorney against it in a suit shall not be a director.” The following-cases also sustain the foregoing rule as given in said text books: Cross v. W. Va. C. & P. Ry. Co., 37 West Va. 342; Commonwealth v. Stevenson, 200 Pa. 509; Wight v. S. & New L. R. Co., 117 Mass. 226; Despatch Line of P. v. Bellamy Man. Co., 12 N. H. 205.

We have not been able to find any decisions that hold contrary to the rule as above stated. The general rule is that unless expressly authorized by statute or by the charter, the board of directors have no power to make by-laws; neither can they alter or amend existing- by-laws. On the other hand, by-laws adopted by the stockholders are invalid where the power is vested in the directors. Thompson on Corp., Sec. 969.

Sec. 6, Chap. 32, Hurd’s Stat., 1909, provides: “The corporate powers shall be exercised by a board of directors or managers;—and the directors or managers may adopt by-laws for the government of the officers and affairs of the company; provided they are not inconsistent with the laws of this state.”

This statute is broad enough to include the right to prescribe the qualifications of the directors by bylaws. “Affairs of the company” necessarily include the election and qualification of directors; and by fair inference such language gives the right to say by bylaws who shall be voted for at such an election, within proper bounds. If the statute was so specific as to name certain by-laws, or subjects upon which by-laws could be made without specifying that by-laws might be made prescribing the qualifications of directors, then by implication there might be good grounds for saying that such a right was even excluded by the statute, and the statute thereby made a limitation upon the common law right to make by-laws. So, while the right to make by-laws must be considered as given by the statute, and that no such right is given except by the statute, still the right is apparently as broad as at common law, but is vested in the managers instead of the stockholders. As we understand it, our Supreme Court has virtually so ruled in Manufacturers Building Co. v. Landay, 219 Ill. 168.

Our statute also provides: “In all elections for directors or managers of corporations organized under this Act, every subscriber shall have the right to vote in person or by proxy, for the number of shares owned or subscribed by him, for as many persons as there are directors or managers to be elected, * * * and such directors or managers shall not be elected in any other manner.” Sec. 3, Chap. 32, Hurd’s Stat. 1909. Appellees insist that this provision of the statute is violated by the said by-law, and for that reason should be declared void. We do not think that this position is tenable. The right of the stockholders to vote their stock for directors is not taken away by this by-law. The only limitation placed upon the right to vote by this by-law, is that they must vote for persons qualified to hold the office of director. The same limitation may be said to be placed upon every qualified voter in Hlinois in all State and municipal elections for State and municipal officers, wherein qualifications for officers are specified by our statutes or ordinances. The statute in the case in hand has delegated to the directors the right to prescribe the qualifications of directors for this corporation. “Votes cast for a person not eligible to the office cannot elect him and make him even a de facto director, and he may be ousted by legal proceedings.” Thompson on Corp., Secs. 1121 and 1123, (2nd Ed.), and cases there cited.

We are also unable to agree with appellees’ contention that this by-law is unreasonable or against any public law or public policy of this State. It is true that the question of whether or not a by-law of a private corporation is void because it is unreasonable, is a question of law for the court. This law, however, has its limitations. Where the reasonableness of a by-law is a mere matter of judgment, and one upon which reasonable minds must necessarily differ, a court would not be warranted in substituting its judgment instead of the judgment of those who are authorized to make by-laws and who have exercised their authority. The rule is well expressed in Thompson on Corporations, Sec. 1002 (2nd Ed.) in this language: <£Before a court will declare a by-law unreasonable, its unreasonableness must clearly appear; and in such cases the courts will not look closely into mere matters of judgment, where there may be a reasonable difference of opinion.” See also Green v. Board of Trade, 174 Ill. 585. It is now usual for the statutes in the several states of this country to prescribe the qualifications of directors of private corporations that they shall be the owners of stock in the corporation, and to name the number or amount of stock for such qualification. This qualification is generally looked upon not only as reasonable, but as beneficial to the corporation and to those who deal with it. As to the other portion of the by-law, that he shall not be directly or indirectly interested as a stockholder in any other like firm, company or association, or the immediate member of the family of such stockholder, we think that the ruling of the court in the case of Cross v. R. R. Co., 37 West Va. 342, and what was said by the court therein, is very much in point here. The by-law of the railroad company provided that no person who was attorney against the company, should be eligible as a director. The court in its opinion in that case said: “We think it within the power of the stockholders to pass it. * * * A person cannot serve two hostile and adverse masters without detriment to one of them. A judge cannot be impartial if personally interested in the cause. No more can a director. Human nature is too weak for this. Take whatever statute provision you please giving power to stockholders to choose directors, and in none will you find any express prohibition against a discretion to select directors having the company’s interest at heart, and it would simply be going far to deny by mere implication the existence of such a salutary power.” The by-law in that ease was passed by the stockholders under a statute giving them the power to pass by-laws in language very similar to the language of our statute now in question. The chief difference is that the power in our state is delegated to the directors or managers instead of the stockholders. What difference can that make? In either case the legal agents of the company were given the power and exercised it. In the case now in hand the stockholders ratified the action of the board, and while in our judgment it added no validity to the by-law, because the power was solely in the directors, yet, if it be argued that such power belonged to the stockholders, their ratification of the by-law was the equivalent of passing the by-law, in considering its validity. The People v. The S. B. C. Mfg. Co., 82 Ill. 457; Cyclopedia of Law and Procedure, Vol. 10, 1073.

If the by-law is to be held reasonable in disqualifying a stockholder in a competing company from being a director, the same reasoning would apply to disqualify the wife and immediate member of the family of such stockholder, on account of the supposed interest of the wife in her husband’s affairs, and his supposed influence over her. It is perhaps true .that such stockholders ought not to be condemned as selfish and dangerous to the best interest of the corporation until tried and tested. So it is also true that we cannot condemn as selfish and dangerous and unreasonable, the action of the board in passing the by-law. The strife over the matter of control in this corporation as in many others is perhaps carried on not altogether in the spirit of brotherly love ánd affection. The only test that we can apply is as to whether or not the action of the board is authorized and sanctioned by law. We think it is, and that we are not in a position to say, on a mere matter of demurrer to the said plea, that the by-law was passed for the fraudulent purpose of perpetuating in office the board of directors that passed it. Such may or may not be the tendency of it. So might it be if the same power was lodged in the stockholders, for often it happens that one or two stockholders own stock enough to control the election of directors. We have examined all the authorities cited by appellees to the effect that directors in a corporation cannot make bylaws and cannot prescribe the qualifications of directors. The answer to all these authorities is that they were cases wherein the statutes of the particular states wherein those rulings were made, either expressly provided that this authority belonged to the stockholders, or else they made no provisions on the question. In either such case the directors have no power to make by-laws or prescribe qualifications for future directors. They are not applicable in this case which is governed by an express statute.

For the reasons indicated the judgment of the lower court is reversed and the cause remanded, with directions to overrule the demurrer to respondents’ plea, and to further proceed with the cause.

Reversed and remanded.


text:
    Hattie Horner et al., Appellees, v. Baltimore & Ohio Southwestern Railroad Company, Appellant.
    This ease is controlled by the decision in Bernhardt v. B. & O. S. W. R. R. Co., post, p. 408.
    Action in case. Appeal from the Circuit Court of St. Clair county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Kramer, Kramer & Campbell, for appellant; Edward Barton, of counsel
    L. P. Zerweck and James M. Dill, for appellees.
   Per Curiam.

The negligence of appellant averred and complained of in this case is the same as that complained of in the case of George Bernhardt v. Baltimore & Ohio Southwestern Railroad Company (opinion filed at this term) post, p. 408, and the lands of appellee are in the same locality and affected in the same manner as the lands of Bernhardt. The evidence being substantially the same in both cases, the principles involved are the same with respect to the cause and effect of appellant’s embankment upon appellees’ lands.

In addition to the matters involved in the Bernhardt case we have considered the errors assigned in this case upon the measure of damages and the argument of two attorneys instead of one in consuming the time allotted for the closing argument for appellees and are of opinion the damages of one thousand dollars are not excessive in view of all the evidence, and there was no error in the conduct of the argument.

The judgment will therefore be affirmed.

Affirmed.


author: Mr. Presiding Justice Shirley

text:
    William McNally, Appellee, v. Standard Railway Equipment Company, Appellant.
    1. Employment Act—construed. If a child over the age of 14 but under the age of 16 years, who has been employed to operate forbidden machinery, is injured while attempting, as a mere volunteer, to operate another and different machine, he cannot recover.
    2. Employment Act—construed. A drill press used to drill holes in metal is not forbidden machinery within the meaning of section 20j of the Employment Act.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed.
    Opinion filed November 11, 1911.
    Carr & Carr, for appellant.
    Webb, Webb & Newby, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellee recovered a judgment for the sum of one hundred and fifty dollars damages for an injury received by him to the index finger of his right hand while in the employment of appellant in its manufacturing plant.

It appeared from the evidence that plaintiff was a minor six days under the age of fifteen years; that he was employed in the plant of appellant in which it had machinery of divers kinds for the manufacture of machine parts and tools, driven by means of belts and pulleys, by steam power. Among other machines it had what was called by the witnesses drill presses used to drill holes in pieces of metal and were not used for boring in wood. As the appellee was not injured by a drill press it is not necessary to describe its operation. Appellee at the time of the injury was and had been employed in operating one of the drill presses in drilling holes in metal, and at the time he was injured he had gone to another machine called a disc wheel without any direction from appellant to make a dowel pin to be used by him, in holding in place upon a blank, the piece drilled on the drill press. He had been supplied by appellant with a dowel pin for the purpose which had been lost. In attempting to make the dowel pin his finger came in contact with the disc wheel,

Liability for the injury was based upon the theory that the employment of appellee upon the drill press in appellant’s plant was unlawful and therefore if injured therein appellant was liable without regard to the place where, or the circumstances under which the injury was received.

Sec. 20 j, chapter 48, Rev. Stat., entitled “Employment” provides that no child under the age of sixteen years shall be employed in a number of capacities therein mentioned, and among such forbidden employments is that of “wood turning or boring machinery” and it is claimed by appellee that the machine upon which he was employed came within the description of such forbidden machinery. The employment of children under fourteen is forbidden in manufacturing establishments by section 20 of the act and it has been held that an employer of a child under fourteen to work in such establishment is liable for an injury to the child, although at the time of the injury he had left the work he was employed to do, and was attempting work he had not been directed to do or which he had been forbidden to do, and that contributory negligence was no defense to an action to recover for the injury; that such employment in any capacity in the establishment being forbidden, the employer was liable for an injury to the child resulting from the performance of services for it whether those services were in the Ene he was directed to perform or not, and that if the employer chose to violate the law by employing a minor under the age of fourteen it assumed the burden of protecting him while engaged in such employment. Strafford v. Republic Iron Co., 238 Ill. 371.

This rule has no application to the case before us. The employment of appellee who was more than fourteen in appellant’s establishment, was not forbidden. The employment upon certain described machinery was only forbidden, and aside from this his employment was lawful.

In such case if the employe leaves the machine upon which he is employed and is injured by attempting as a mere volunteer to operate another machine in the plant without any direction from the employer, such intermeddling with a machine would not be «in the line of his duty and there could be no recovery, notwithstanding he may have been employed to work on a machine forbidden by the statute.

Even if it could be said that his employment on a forbidden machine would make the master liable for any injury resulting to him in the plant, yet we aré of opinion that the drill press described in the evidence upon which appellee was employed was not a forbidden machine. We are of opinion the words “wood turning or boring machinery” forbidden by the statute mean wood boring machinery and do not include a drill press used to drill holes in metal.

There being no evidence tending to prove a Eability on the part of appellant for the injury sustained, the judgment wiE be reversed.

Reversed.

Finding of facts to be incorporated in the judgment. We find there was no negligence on the part of appellant contributing in any manner to appellee’s injury, and further find that his employment in appellant’s plant was not prohibited by statute.