text:
    Marcella Adams et al., Appellees, v. W. C. Abel et al., Appellants.
    1. Appeal and error, § 155

      -—when freehold involved on Mil iiu volving easement. A freehold was involved in a bill to enjoin connection with a certain tile drain, where, if the proofs in the record sustained the theories of the respective parties, a perpetual easement as to the use of such drains or of flowage over appellee’s lands was contemplated by the parties.
    2. Appeal and error, § 126*—when freehold involved in general. A freehold is involved in cases only where either the necessary result of the judgment is that one party gains and the other loses a freehold estate, or where the title to a freehold is so put in issue by the pleadings that a decision of the case necessarily involves a decision of such issue, although the judgment or decree does not result in one party gaining or the other losing the estate.
    3. Appeal and error, § 127*—when failure to raise question of freehold does not give Appellate Court jurisdiction. Where it was apparent that the Appellate Court had no jurisdiction to entertain an appeal because a freehold was involved, the fact that the question was not raised by either party did not give the court any power to pass upon the merits.
    Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1918.
    Appeal dismissed.
    Opinion filed July 9, 1919.
    B. E. Neff, for appellants.
    Walter Provihe, for appellees.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

In the bill filed by appellees it is alleged that Gavin R Adams died testate August 18,1905, leaving surviving him Marcella Adams, his widow, and Elsie Adams (since intermarried with Harrison P. Parker), his only heir at law; that by said will the testator devised to Marcella Adams all his real estate for her natural life, only, and, subject to said life estate, he devised said real estate to said Elsie Adams Parker for and during her life, remainder to the child or children of her body born or to be bom; that said real estate consisted of the East Half. (E%) of the Southwest Quarter (SW!4) and the West Half (Wy2) of the Southeast Quarter (SE14) of Section 18, Township 13 North, Range 2 West, Third (3rd) P. M. in Christian County; that in and prior to the year 1889, one J. W. Murphey owned the Northwest Quarter (NW14) of said Section.18 ; that some time in the year 1889, said Murphey and Gavin R. Adams entered into an agreement for laying a covered tile drain in said lands, the outlet thereof being in an open ditch emptying into a deep ditch in the public road running east and west on the south side of Section 18 and extending in a northeasterly direction through the Adam’s land into and near to the north side of said Northeast Quarter' (NE14) of Section 18, then owned by said Murphey; that by said agreement this drain was to drain the above-described lands only and no other lands, and has been maintained since then and used by the owners of said lands succeeding to the titles of said Adams and Murphey, respectively, and for no other lands until the wrongs thereinafter stated.

That Marcella Adams is in possession of said land that was so owned by said Gavin R. Adams, deceased, and said Harrison P. Parker and Elsie Adams Parker, his wife, are tenants of the said 160 acres; that W. C. Abel is now the owner of the South Half (S]/2) of the Northeast Quarter (NE14) of said Section 18, and also of the Southwest Quarter (SW%) of the Northwest Quarter (NWt4) of Section 17, and the West Half (W%) of the Southwest Quarter (SW14) of Section 17; and that said Abel threatens to extend the tile drain described into and upon Section 17 so as to connect his lands in Section 17 with said drain in Section 18, without the consent of appellees; that in March or April, 1916, said Abel requested permission from appellees so to do, which was refused, and said Abel was admonished not to molest said tile in Section 18 in any manner, and was notified that he had no right to interfere with said tile in Section 18 nor to connect any tile thereto for the purpose of draining any portion of Section 17 therein.

That said lands are level prairie lands in a high state of cultivation and that appellees will suffer irreparable injury if the said Abel should make connection with said tile drain in Section 18 so as to drain said lands in Section 17; that said tile drain on Section 18 is not of sufficient capacity to take the water from said lands in Section 17, and was never intended to take the water therefrom; that such additional burden will cause the water to overflow on the lands of appellees and greatly injure and destroy crops grown thereon. '

The prayer of the bill is for an injunction to restrain appellants from so connecting with said tile drain in Section 18, and if they shall have dug a ditch for the purpose of laying such tile drain or shall have laid the same, that they be required to disconnect the same and remove such tile and fill up the ditch so made by them, and for general relief.

In the answer it is denied that there ever was such an agreement set out in the bill between Adams, deceased, and Murphey; and it is admitted that it is the intention of appellant to drain his lands in Section 17 into the tile drain located on Section 18. It is averred that the natural flow of water from Section 17 is over and across the South Half (S%) of the Northeast Quarter (NE14) of Section 18, and that no license or permission is required from the servient owner upon the part of the dominant owner to drain said lands in the drain of the natural flow of the water, and that, being the owner of the dominant heritage, he has the legal right to drain onto the lower lands owned by appellees.

The court entered a decree in favor of appellees and granted the relief prayed for in their bill, to reverse which this appeal is prosecuted.

Appellees in the court below introduced proof tending to show that the lands in controversy were substantially level, and that there was no natural flow of water thereon in any particular direction, but that after heavy rains the direction of the flowage was controlled largely by the direction of the wind. Appellant introduced some proofs tending to show that the lands in Section 17 constituted a dominant heritage.

It is the contention of appellees that, according to the agreement entered into by Gavin R. Adams, in his lifetime, and Murphey, the tile drain constructed by them was to be used solely for the drainage of the said tracts of land in Section 18, and for no other, and that this easement became irrevocable by virtue of the act approved June 4, 1889, in force July 1, 1889, entitled, “An Act declaring legal, drains heretofore or hereafter constructed by mutual license, consent or agreement, by adjacent or adjoining owners of land, and to limit the timé within which such license or agreement heretofore granted may be withdrawn.”

If the proofs in this record are sufficient to sustain the theory of appellees and the allegations in the bill, they establish a perpetual easement in the particular use of the tile drain contemplated by the original agreement between Gavin B. Adams and Murphey, and a freehold is involved. According to the theory of appellants, the proofs fail to establish the original agreement in regard to the tile drain in question, but do establish that the natural flow of water is from the tracts mentioned in Section 17 onto the said tracts mentioned in Section 18. If this contention should prevail, a perpetual easement of flowage over the lands of appellees would be established in appellants, and in determining this question a freehold would also be involved.

In the case of Wessels v. Colebank, 174 Ill. 618, where the facts were analogous to those in the case at bar, in passing upon a motion to dismiss the writ of error on the ground that no freehold was involved, the court said: “The rule, as frequently announced by this court, is, that a freehold is involved in cases only where either the necessary result of the judgment is that one party gains and the other loses a freehold estate, or where the title to a freehold is so put in issue by the pleadings that a decision of the case necessarily involves a decision of such issue, although the judgment or decree does not result in one party gaining and the other losing the estate. * * * We are of the opinion that a freehold is involved in the case at bar also, and the motion to dismiss will be overruled. ’ ’

A freehold is clearly involved in this case, and this court has therefore no jurisdiction of this appeal. Wessels v. Colebank, supra; Chaplin v. Highway Com’rs, 126 Ill. 264; Dierks v. Highway Com’rs, 142 Ill. 197; Tinker v. Forbes, 136 Ill. 221; Hunt v. Sain, 79 Ill. App. 361; Espenscheid v. Bauer, 235 Ill. 172; Cox v. Deverick, 272 Ill. 46; McIntyre v. Harty, 236 Ill. 629; Town of Crooked Creek v. King, 252 Ill. 126.

It is apparent that this court has no jurisdiction to entertain this appeal, and the fact that this question has not been raised by either party does not give it any power to pass upon the merits of the ease. ‘ ‘ The Appellate Court had no jurisdiction to try a, case involving a freehold, and where the law has not conferred jurisdiction of the subject-matter upon a court, the parties to a suit cannot, by consent, invest such court with jurisdiction. ” Town of Audubon v. Hand, 223 Ill. 367; Powers v. Heffernan, 138 Ill. App. 12; Dees v. Scheuvronts, 147 Ill. App. 55.

The appeal is dismissed and the clerk of this court is hereby directed to transmit to the clerk of the Supreme Court the transcript, files and a copy of this order, as required by section 102 of the Practice Act (J. & A. V 8639).

Appeal dismissed.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    Robert A. Pritchard et al., v. Arthur W. Fruit et al. Eliza Van Ordstrand et al., Appellees, v. Arthur W. Fruit et al., Appellants.
    1. Appeai, and ebrob, § 1820

      —what is duty of trial court on remand with directions to modify decree. On remand, it is the duty of tlie trial court to modify a decree as directed by the opinion of the Appellate Court, and in no other manner.
    2. Appeai, and error, § 1820*—what modification of decree, on remand with directions error. Where a decree was affirmed 'in all respects except in so far as it directed' the payment of any sum out of the funds in the hands of trustees, as to which it was reversed with directions to modify the decree eliminating the provision, it was error for the trial court upon remand to change or modify the amount found due in the original decree by recasting the interest by computing it at a larger rate.
    Appeal from the Circuit Court of De Witt county; the Hon. George A. Sentel. Judge, presiding. Heard in this court at the October term, 1918.
    Reversed in part and remanded with directions.
    Opinion filed July 9, 1919.

      McDavid & Monroe, for appellants.
    Leonard W. Ingham and Herrick & Herrick, for appellees.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

This cause was before us before in the case of Pritchard v. Fruit, 208 Ill. App. 77. The facts and the issues are fully set out in the opinion rendered on that appeal and need not be restated here. By the judgment of this court on the former appeal, the decree was affirmed in all things except in one respect, as to which it was reversed and the cause remanded. When the case was redocketed in the trial court, the court recast the interest on the amount due under the mortgage, computing the same at the rate of 7 per cent, the same being the rate of interest on said notes to the time of the entry of the second decree, and it is urged by appellant that that part of the first decree, finding the amount due upon the mortgages, having been affirmed by this court, the trial court had no right upon the remandment of the cause to change or modify the amount found due in the original decree and that interest should only have been computed thereon at the legal rate of 5 per cent. The original decree was affirmed in all respects except in so far as it directed the payment of any sum out of the funds in the hands of the trustees to Caruthers, as to which it was reversed with directions to modify the decree by eliminating that provision thereof. It was the duty of the trial court to modify the decree as directed by the opinion of this court and in no other manner. Washburn & Moen Mfg. Co. v. Chicago Galvanized Wire Fence Co., 119 Ill. 30; Wadhams v. Gay, 83 Ill. 250. The trial court must be guided by the opinion of this court in making the modifications of the decree directed and cannot readjudicate the questions involved in that part of the decree which was affirmed. Blackaby v. Blackaby, 189 Ill. 342; Union Nat. Bank of Chicago v. Sines, 187 Ill. 109; Kaemmerer v. Kaemmerer, 231 Ill. 154. The modification of the decree in the respect mentioned was improper, and as to such modification the decree is reversed, hut in all other respects it is affirmed.

The cause is remanded with directions to modify the original decree in conformity with the former opinion filed herein and with this opinion.

Reversed in part and remanded tvith directions.


text:
    Paul J. Campbell, Administrator, Appellant, v. R. B. McConnel, Appellee.
    1. Gaming, § 43

      —what determines intention of Board of Trade transaction. Where an administrator sought to avoid a note given by his intestate, on the ground that the transaction in question was a gambling deal on the Board of Trade, and where defendant claimed that there was no direct evidence of the intention of the decedent as to the making or receiving delivery of the commodity, the intention was determined from the nature of the transaction and other facts and circumstances in connection therewith.
    2. Gaming, § 10*—when Board of Trade transaction is gambling transaction. Where a decedent, who at the time of entering into the transaction in question, was worth about $10,000, and raised between 8,000 and 9,000 bushels of corn of which he fed 2,000 and sold the balance at elevators, and had one crib accommodating about 2,000 bushels of corn and a granary which would hold 300 bushels of wheat or oats, bought 625,000 bushels of corn then worth $598,206.50, and no warehouse receipt was ever delivered to him and he never paid anything except sufficient to cover his margins, the transaction was a gambling transaction, which avoided a note given by him in settlement of his losses.
    3. Judgment, § 359*—when decree refusing to vacate judgment based on gambling note will be set aside. Where facts and circumstances shown by the evidence, in a bill to vacate a judgment rendered in the Probate Court against the administrator of the estate of the maker of a note and to require the note to be delivered up and canceled, clearly proved that the transactions between the parties were nothing but gambling deals on the Board of Trade which could not be disguised by the testimony of one of the parties that they were legitimate contracts for the purchase and sale of grain, a decree dismissing the original bill for want of equity and rendering a money judgment on defendant’s cross-bill was set aside.
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed July 9, 1919.
    W. R. Jewell, Jr., for appellant.
    Lindley, Penwell & Lindley and Moses, Rosenthal & Kennedy, for appellee; Walter Bachrach and H. J. Darby, of counsel.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellant, administrator of the estate of Frances M. Campbell, deceased, filed a bill in equity to have a certain judgment rendered in the Probate Court of Vermilion county against said estate vacated and declared null and void and that the note, which was the basis for the judgment, be required to be delivered up by the defendants and canceled, and that they be enjoined from further attempting to prosecute any suit to collect the same. It is alleged in the bill that Frances M. Campbell, in his lifetime, and R. B. McConnel had certain transactions whereby the latter contracted to have or give to said Campbell the option to sell or buy, at a then future time, grain and other commodities; that in said transactions it was understood between said parties that the grain so bought qnd sold and so contracted for was not to be delivered or received, but such transactions were to be settled on differences between such market price and the price on the market at the time -of settlement; that out of said transactions said Campbell suffered certain losses in settlement of which he made a certain promissory note, dated October 8, 1912, payable to the order of said McConnel one year after date for the principal sum of $3,046.25, with interest at the rate of 7 per cent per annum; that the whole or part of the consideration of said note was for money lost by said Campbell and won from him by the said McConnel by gaming; that all the contracts aforesaid were gambling contracts and void under the statutes; that said McConnel afterwards indorsed the note as follows: “Pay Lamson Bros, and Company, R. B. McConnel”; that said Lamson Bros, had filed the same as a claim against the estate of said Campbell, deceased, and have caused the same to be allowed as a claim against said estate in the Probate Court of said county, from which order of the court an appeal has been taken to the Circuit Court, where it is now pending.

Appellees, by their answer, denied that said note was given in settlement of gambling contracts as set out in the bill, but aver that it was executed on accounts of moneys previously loaned and advanced to and expended for and on account of said Campbell by said McConnel.

Appellees also filed a cross-bill, in which they aver that said Campbell, at the time the note was executed by him, was indebted to said McConnel in the principal sum of said note by reason thereof executed said note and that the same was indorsed and assigned to Lam-son Bros, and Company for valuable consideration before maturity and that the latter is now the legal and bona fide holder of said note, which is now due and unpaid, and that appellant may be decreed to pay the same. Appellant filed his answer to said cross-bill, averring in substance the facts alleged in the original bill.

The cause was referred to the master in chancery, who heard the proofs and rendered a report holding that the burden of proof was upon appellant to establish the fact that neither party to the transactions mentioned intended that any of the commodities bought or sold should be delivered, and that appellant has failed to establish such fact by a preponderance of the evidence. The exceptions to the master’s report were overruled by the chancellor, who entered a decree dismissing the original bill for want of equity and rendering a money judgment on the cross-bill against appellant as administrator of said estate and against him in his. own proper person for the sum of $4,483.13. Appellees contend that to invalidate the note in question, it was incumbent upon appellant to prove that at the time the transaction was entered into it was the intention of neither of the parties to make or receive delivery of grain or other commodity dealt in, and much stress is laid upon the fact that there was no direct evidence of the intention of Frances M. Campbell in regard thereto. The intention of the parties may be determined from the nature of the transaction and other facts and circumstances in connection therewith. In other words, the intention of the parties, like any other material fact in a case, will be determined from a consideration of all the evidence in the case. R. E. Pratt & Co. v. Ashmore, 224 Ill. 587; Jamieson v. Wallace, 167 Ill. 396; First Nat. Bank of El Paso v. Miller, 235 Ill. 137.

Frances M. Campbell, in the year 1912, owned an equity in a farm of the value of about $6,625, also personal property of the value of about $3,000. He raised between 8,000 and 9,000 bushels of corn, of which he fed 2,000 and sold the balance at the elevators. He had one crib which would accommodate about 2,000 bushels of cora and a granary which would hold 300 bushels of wheat or oats. During the year 1912, said Campbell bought of MeConnel 625,000 bushels of com worth,, at the then market price, $598,206.50. None of this grain nor any warehouse receipt for the same was ever delivered to Campbell, and he never paid anything for the same except sums sufficient to cover his margins thereon on the Board of Trade. MeConnel testified that all the deals made by Campbell in the purchase or sale of this grain were made with him, MeConnel, personally, though the deals were consummated through Lamson Bros, and Company, who were members of the Chicago Board of Trade and who acted solely as agents for MeConnel. MeConnel further testified that all settlements were made upon the profits or loss derived from the difference in the price at which the grain was bought and the price at which it sold on the change in the market from the time of the purchase or sale until the trade was closed and that all such transactions were settled on margins. The longest stretch of the imagination could hardly fail to convince any reasonable person that these deals were purely gambling ventures and not bona fide purchases and sales of grain. The note in question was executed to cover losses sustained by Campbell in the deals in question. The facts and circumstances shown by the evidence clearly prove that the transactions between the parties were nothing but gambling deals on the Board of Trade and cannot be disguised by the testimony of MeConnel that they were legitimate contracts for the purchase and sale of grain. The facts in this case are very analogous to those in Lamson v. West, 201 Ill. App. 251, wherein we said: “But one of the appellees’ firm took the stand to deny knowledge that these deals were gambling deals, neither was Kelly, the agent, called to the stand to deny it, but if they had all denied it, their testimony could scarcely have weakened the convineing force of the circumstances which tend to show they all knew to the contrary.”

The decree of the Circuit Court is reversed and the cause remanded with directions to dismiss the cross-bill for want of equity and to enter a decree to conformity with the prayer of the original bill.

Reversed and remanded with directions.


author: Mr. Justice Waggoner

text:
    Charlotte Sheehan, Administratrix, Defendant in Error, v. Wabash Railway Company, Plaintiff in Error.
    1. Commerce, § 4

      —when pipe fitter works under Federal Employers’ Liability Act. A pipe fitter, employed by an interstate common carrier in repairing an engine while it was on a sidetrack preparatory to its being used to pull a passenger car between States, was engaged in interstate commerce and was working under the Federal Employers’ Liability Act.
    2. Commerce, § 4*—when employee is engaged in interstate commerce. To be engaged in interstate commerce, an employee need not be directly working in the transportation of goods from one State to another or in the operation and movement of trains; if he is engaged in the operation, maintenance or repair of any of the instrumentalities used by the carrier in the transportation of goods from one State into another, he is engaged in interstate commerce.
    Error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 9, 1919.
    Hugh W. Housum and Fred Hamilton, for plaintiff in error; J. L. Mmuis and N. S. Brown¡ of counsel.

      Le Forges, Black & Samuels and Baldwin, Carey & Wierman, for defendant in error.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

Defendant in error brought an action on the case against, the Wabash Railway Company to recover damages for the death of her husband, Richard C. Sheehan. The declaration alleged that the Wabash Railway Company was an interstate common carrier; that Richard C. Sheehan was employed by said railway company as a pipe fitter at its locomotive shops in Decatur, Illinois; that on July 9, 1917, the railway company caused its engine number 622 to be placed upon a sidetrack in its yards, in Decatur, for the purpose of being repaired so that it could be attached to a train of passenger cars and proceed to the City of St. Louis, Missouri; that after being so repaired, on said day, it was attached to a train of passenger cars and did proceed from Decatur, Illinois, to St. Louis, Missouri; that the railway company, not regarding its duty, negligently backed a certain other engine into engine number 622 while it was on a sidetrack being repaired and while Richard C. Sheehan was on the ground under the engine repairing it, whereby Richard C. Sheehan, while in the exercise of due care and caution for his own safety and in the discharge of his duty, was so crushed and injured that he then and there died.

■ A general and special demurrer to the declaration was interposed and overruled. The plaintiff in error filed’ a plea of the general issue, together with special pleas setting up contributory negligence, assumption of risk, and that Richard C. Sheehan was not engaged in interstate commerce.

Issues were joined and the case tried by a jury, which returned a verdict of $10,000 in favor of defendant in error. Motions for new trial and in arrest of judgment were made and each denied. The court rendered judgment on the verdict.

Richard O. Sheehan was employed by the Wabash Railway Company in its locomotive works in Decatur as a pipe fitter. He was 50 years of age at the time of his death, was married and living with his wife. His wages ran from $80 to $100 a month. On July 9, 1917, he went to work at 7 o’clock in the morning. About 10 o’clock in the forenoon of that day he worked with Charles Sandon under the tender of engine number 622 repairing a pipe. The turntable in the roundhouse of said railway company was being repaired at that time, and engines were placed on sidetracks, near the roundhouse, for repairs. Oh this account Richard C. Sheehan had no pit to work in while under the engine, but sat upon the track. There was another engine standing 25 or 30 feet east from the engine under which Richard C. Sheehan was working, on the same sidetrack. John H. Harry, an assistant train master of the Wabash Railway Company, came into the yards, climbed into the other engine, and attempted-to move it back 5 or 6 feet. The air pressure was so low that, after starting it, the brakes did not hold when an attempt was made to stop it. There was a slight down grade. The engine moved slowly backwards into the rear end of engine number 622. John H. Harry could not get the reverse lever unlatched without considerable difficulty, and before he 'did get it unlatched and reversed the engine he was on bumped into engine number 622, moved it several feet, caught Richard C. Sheehan under the sand board and doubled him up, killing him immediately.

Engine number 622 had come into Decatur on the night of July 8, 1917, from Peru, Indiana, and was placed on a sidetrack near the roundhouse for the repair work that was being done on it on the morning of July 9th. It left Decatur at 2:45 p. m. July 9th, on a run to St. Louis, Missouri. During the first 15 days of July this engine made ten interstate trips to St. Louis, Missouri, and return; two interstate trips to Peru, Indiana, and return, and three interstate trips to Chicago, Illinois, and return. The trips to Chicago were on July 3rd, 7th and 14th.

It is claimed by the railway company that the engine was not actually assigned for the run to St. Louis, that it made in the afternoon of July 9th, until some time after 12 o’clock noon of that day. The accident occurred soon after 10 o’clock in the forenoon, and the railway company contends that at the time Richard C. Sheehan was killed the engine was not engaged in interstate commerce. The defendant in error offered, on the trial in the Circuit Court, in addition to the evidence showing fhe use that was made of the engine during the first 15 days in July, the evidence of A. D. Mercer, roundhouse foreman of the Wabash Railway-Company, who testified that he came to work about 6:50 a. m. on July 9th, and at that time engine number 622 was marked up> for train number 15 south, being the run to St. Louis'; that this marking was on a board on the ‘ ‘ can house” in the railway yards; that this board had nothing to do with the assignment of engines, but was used for- the information of the men in making repairs. Plaintiff in error admits that there was evidence tending to prove that the engine had been assigned to the St. Louis run, as it states in its brief that “in the case at bar to speak most favorably for the plaintiff (defendant in error) Sheehan was getting 622 ready for an interstate run.”

The controlling question in this case is whether Richard C. Sheehan was employed by the railway company in interstate commerce at the time of the accident. Plaintiff in error contends for a narrow construction of the Federal Employers’ Liability Act. According to its contention, to be engaged in interstate commerce, the emplc n must be engaged in the transportation of interstate freight or passengers. It is said in Dickinson v. Industrial Board of Illinois, 280 Ill. 342 (344): “Not every employee of an interstate carrier is engaged in interstate commerce. If his work constitutes a real and substantial part of the interstate commerce in which the carrier is engaged, then the employee is engaged in interstate commerce, otherwise not. (Illinois Cent. R. Co. v. Behrens, 233 U. S. 473 [10 N. C. C. A. 153]; Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146 [3 N. C. C. A. 779]; Chicago, R. I. & P. R. Co. v. Industrial Board of Illinois, 273 Ill. 528.) His employment need not be directly in the transportation of goods from one State to another or in the operation or movement of trains. If he is engaged in the operation, maintenance or repair of any of the instrumentalities used by the carrier in the transportation of goods from one State into another, he is engaged in interstate commerce. Section men repairing a track, carpenters repairing a bridge, machinists and car repairers working on engines and cars, and hostlers caring for engines, are engaged in interstate commerce if the track, bridge, engines and cars are used in interstate commerce. Their work has a direct and substantial connection with interstate transportation and is an essential part of it. ’ ’

There was evidence in this case to support the finding of the jury that Richard O. Sheehan was engaged in repairing an engine preparatory to its being used to pull a train of passenger cars from Decatur, Illinois, to St. Louis, Missouri. The only reasonable construction to be placed on the evidence is that the employees of the railway company were ordered, not later than 7 o’clock in the morning, to have engine number 622 ready for a run to St. Louis in the afternoon of that day. No other meaning can be given to the order posted on the board at the “can house” in the railway yards. It necessarily follows that Bichard C. Sheehan was repairing an instrument used by the railway company in interstate commerce. He was working under the Federal Employers’ Liability Act. Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146 [3 N. C. C. A. 779]; New York Cent. & E. River R. Co. v. Carr, 238 U. S. 260 [9 N. C. C. A. 1]; North Carolina R. Co. v. Zachary, 232 U. S. 248 [9 N. C. C. A. 109]; Northern Pac. R. Co. v. Maerkl, 198 Fed. 1; Baltimore & O. R. Co. v. Darr, 204 Fed. 751; Chicago, K. & S. Ry. Co. v. Kindlesparker, 234 Fed. 1, and Atlantic Coast Line R. Co. v. Woods, 252 Fed. 428.

It follows that the court did not err in refusing to direct a verdict for the plaintiff in error, nor in overruling the motion in arrest of judgment, as the declaration stated a good cause of action as shown by the authorities hereinafter cited.

Complaints are made with reference to the giving and refusal of instructions. We find such complaints are without merit, other than those which raise the same points that are presented in regard to the Federal Employers ’ Liability Act, and have been disposed of as above indicated.

There is no just cause of complaint in regard to the examination and cross-examination of witnesses, or in the admission or exclusion of evidence. The errors urged in those respects are highly technical. The damages awarded are not excessive, and the judgment of the trial court is affirmed.

Affirmed.


text:
    Leon C. Scofield, Defendant in Error, v. Wabash Railway Company, Plaintiff in Error.
    1. Master and servant, § 833

      —when sustaining of demurrer to special pleas harmless. The sustaining of a demurrer to six special pleas of assumed risk and contributory negligence, even if erroneous, was harmless, where there were three other pleas on which issue was joined setting up the same defenses.
    2. Master and servant, § 302*—when employee does not assume risk of negligence of fellow employee. Under section 3 of the Federal Employers’ Liability Act [Call. 1916 Stat. j[ 9096(3)], providing that “contributory negligence shall not bar a recovery,” the fellow-servant doctrine is no longer available as a defense, and consequently the injured employee does not assume the risk of the negligence of his fellow employee.
    3. Master and servant, § 832*—when verdict of jury controlling on question whether accident occurred while employee was acting in scope “of employment. In an action based upon the Federal Employers’ Liability Act, the verdict of the jury was controlling upon the disputed question whether or not the accident occurred while plaintiff was acting in the scope of his employment.
    4. Appeal and error, § 1506*—when refusal to permit answering of question on cross-examination harmless. An objection that the refusal to permit plaintiff in a personal injury case, who had testified that he was nervous, to answer a question on cross-examination as to whether he was nervous as he sat in the witness chair, was an abuse of discretion and reversible error, was trivial.
    5. Trial, § 102*—when refusal to strike testimony not error. The refusal to strike testimony of plaintiff, in an action for injuries sustained by being thrown by the jerk of the engine on which he had climbed to adjust the dimmer on the headlight, that a great amount of steam was taken in the cylinders of the engine in question, and that such engine went forward with a sudden motion, that it went a certain distance and then there was a jerk by the weight of the train, on the ground that the statement was a conclusion and was the only evidence tending to show that the engineer started the engine, was not error, where there was other evidence to show the same fact.
    6. Damages, § 179*—when testimony hy plaintiff’s housekeeper as to plaintiff's physical condition competent. Testimony of the housekeeper of plaintiff in a personal injury case, who cared for plaintiff after he came home from the hospital, describing plaintiff’s physical condition, was competent.
    7. Appeal and error, § 1165

      —when assignment of error not considered. An assignment of error based upon the refusal to admit evidence offered by defendant in error on the examination of certain witnesses was not considered, where the questions were both leading and suggestive, and where no offer was made as to what it was expected to prove by the witnesses.
    8. Appeal and error, § 1066*—when assignment of error that verdict was excessive is not open to review. An assignment of error that a verdict was excessive, was not open to review, where the verdict for $20,000 was remitted to $15,000, and there was no assignment of error questioning the amount of the judgment.
    9. Damages, § 125*—what damages for loss-of leg are merely compensatory. Damages of $15,000 were no more than compensatory where a man 22 years old, strong and robust, making from $80 to $100 per month, lost a leg, was in a hospital 6 weeks and at the trial, 9 months later, was still unable to work.
    Error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1919. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 9, 1919.
    Hugh W. Housum: and Feed Hamilton, for plaintiff in error; J. L. Minnis and N. S. Brown of counsel.
    Charles C. Le Foegee, George W. Black and Thomas W. Samuels, for defendant in error.

      See IVinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same ♦vitic ai.d section nvmber.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

The defendant in error, Leon C. 'Scofield, brought an action on the ease against the Wabash Railway Company to recover damages under the Federal Employers’ Liability Act for the loss of one of his legs. The jury returned a verdict in his favor for $20,000. A remittitur of $5,000 was entered and judgment was then rendered against the railway company for $15,000. The declaration charged that the plaintiff and defendant were engaged in interstate commerce; that the plaintiff was acting as head brakeman on a freight train running from Peru, Indiana, to Decatur, Illinois; that on February 17,19'17, while said freight train was proceeding from Peru to Decatur, it was required to go on a siding at Colburn, Indiana; that the plaintiff, while in the discharge of his duties and the exercise of ordinary care, was, in the nighttime, on the front of the engine of the said .freight train then on the siding at Colburn, dimming the headlight from a fast passenger train then approaching said freight train, and while so engaged said freight train was so negligently managed and moved without warning, so that plaintiff was thrown off the engine and his leg run over by the “pony truck” of the engine, necessitating its amputation between the kneé and ankle.

To the declaration the plaintiff in error filed a plea of general issue, together with seven special pleas. A special demurrer was sustained to six of the special pleas and overruled as to one. Two additional special pleas were then filed and issue was joined. The three special pleas, on which the case was tried, set up assumption of risk and contributory negligence.

The plaintiff in error complains of the sustaining of the demurrer to six of its special pleas. They were pleas of assumed risk and contributory negligence. If such pleas were necessary and if good, and we do not want to be understood as holding they were either necessary or good, the alleged error would be harmless, as there were three others on which issue was joined, setting up the same defenses, and under which plaintiff in error had all the benefits on the trial that it could have had from the pleas to which the demurrer was sustained. Mayer v. McCracken, 245 Ill. 551 (574-575); Jones v. Council Bluffs Bank, 34 Ill. 313 (320); Curtiss v. Martin, 20 Ill. 557 (571-572); Tokheim Mfg. Co. v. Stoyles, 142 Ill. App. 198 (202-203).

Error is assigned on the refusal of the court to direct a verdict for the plaintiff in error. Passing by the question of whether or not a motion to direct a verdict was made in apt time, we find from an examination of the record that there is ample evidence proving that the injury occurred to the defendant in error while he was in the course of his employment, in the discharge of his duties and exercising due care for his own safety.

Defendant in error was head brakeman on a freight train that left Peru, Indiana, at 10:45 p. m. February 17, 1917, for Decatur, Illinois. At one o’clock, next morning, this train ran in on a sidetrack, ai Colburn, Indiana, in order that a passeng-er train might go ahead of it. Immediately after the freight train had stopped, on a sidetrack, defendant in error, in pursuance of the rules of the railway company and in the course- of his duties, got up on the front of the engine to adjust the dimmer on the headlight. Just as he had finished adjusting the dimmer, but before he had started to climb down, the engineer suddenly started the engine and, as a result of a sudden jerk in so doing, the defendant in error was thrown down and the wheels of the “pony truck” of the engine passed over his legs. The engine moved about 15 feet.

By section 3 of the Federal Employers’ Liability Act [Call. 1916 Stat. ft 9096(3)], it is provided that “contributory negligence shall not bar a recovery.” Warren v. Jackson, 204 Ill. App. 576 (586). The fellow-servant doctrine is no longer available as a defense under the federal act. The injured employee does not assume the risk of the negligence of his fellow" employee. Kasturin v. Chicago & A. R. Co., 287 Ill. 306 (318). As to whether or not the accident occurred while the defendant in error was acting in the scope of his employment was a disputed question of fact upon which the verdict of the jury is controlling, for the reason that there is ample evidence in the record to support it.

It is urged that the trial court erred in its rulings in reference to the admission and exclusion of evidence. The first complaint is in regard to the cross-examination of the defendant in error. He had testified that he was nervous, and on cross-examination was asked, “Well, you are not nervous as you sit there now, are you?” The court sustained an objection to the question. The contention that this was an abuse of discretion and reversible error is trivial.

The next complaint is that the court refused to strike out the description given by the defendant in error of the movement of the engine at the time he was injured, and that his statement was a conclusion. He said: “Well, it seemed that a great amount of steam was taken in the cylinders, and the engine went forward with a sudden motion; that it went the length of the drawbar, then there was a jerk by the weight of the train, a very violent movement.” It is said in argument that this is the only evidence tending to show that the engineer started the engine. This statement is not correct, as there was other evidence tending to show the same fact, and it was not error to refuse to strike out the evidence of defendant in error on this point. Complaint is made that Mrs. J. E. Eedwitz, the housekeeper of defendant in error, who cared for him after he came home from the hospital, was permitted to describe his physical condition. This evidence was competent and properly admitted. West Chicago St. Ry. Co. v. Fishman, 169 Ill. 196 (198).. It is further urged that the court erred in refusing to admit evidence offered by plaintiff in error on the examination of the witnesses H. A. Belding and John H. Harry. The questions propounded, to which objections were sustained, were both leading and suggestive. Further, there was no offer made in reference to what plaintiff in error expected to prove by either of these witnesses, and we cannot determine whether or not it was error to exclude the supposed evidence. Wetzel v. Firebaugh, 251 Ill. 190 (198); Anthony Ittner Brick Co. v. Ashby, 198 Ill. 562 (565); Geringer v. Novak, 117 Ill. App. 160 (168).

It is contended that five of the six instructions given for defendant in error were erroneous, and that it was also error to refuse two of the plaintiff in error’s nineteen instructions. The two refused were covered by others given. Taken as a series, the instructions given correctly stated the law and were sufficient to fully instruct the jury as to the law applicable to the case.

Finally, it is contended that the damages are excessive. The only error assigned is that the verdict is excessive. A remittitur of $5,000 was entered. Judgment was then rendered for $15,000 and there is no assignment of error questioning the amount of the judgment. An error, not assigned, is not open to review. Berry v. City of Chicago, 192 Ill. 154 (155). The defendant in error, at the time of the accident, was 22 years of age, strong and robust, making from $80 to $100 a month. He lost a leg, was in a hospital 6 weeks and at the time of the trial, 9 months later, was still unable to work. ■ The damages were no more than compensatory. Wheeler v. Chicago & W. I. R. Co., 182 Ill. App. 194 (195); Biggs v. Peoria & P. U. Ry. Co., 182 Ill. App. 613 (622); Chicago, B. & Q. R. Co. v. Dunn, 106 Ill. App. 194 (200); Lannon v. City of Chicago, 159 Ill. App. 595 (599); Chicago & A R. Co. v. Fisher, 38 Ill. App. 33.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.


text:
    J. A. Jennings, Plaintiff in Error, v. Estate of George Glover, Defendant in Error.
    1. Pleading, § 321

      —when affidavit denying execution of note will not be stricken from files. The inclusion in an affidavit by an administrator, denying the execution of the note in question by his intestate, of statements of other defenses not contemplated by Hurd’s Rev. St. 1917, ch. 110, sec. 52 (J. & A. If 8589), under which the affidavit was filed, was no reason for striking it from the files.
    2. Pleading, § 304*—when administrator required to file affidavit denying execution of note. An administrator not only has the right to file an affidavit denying the execution of the note in question by his intestate, but is required to do so by Hurd’s Rev. St.' 1917, ch. 110, sec. 52 (J. & A. IT 8589) in order to be permitted to deny its execution on the trial.
    3. Evidence, § 291*—what admissible as standards of comparison in proving handwriting. Under Hurd’s Rev. St. 1917, ch. 51, sec. 52 [Call. 1916 Stat. If 5566(1)] making it lawful to prove handwriting by comparison made by witnesses or a jury, not only with writings properly in the files or records of the case admitted in evidence or treated as genuine, but by writings proved to be genuine to the satisfaction of the court, it was not error to permit the introduction in evidence, upon the trial of a claim upon a note against an estate, of a bank signature card used as the accepted signature of the decedent, and checks indorsed by decedent, which had been treated as genuine by all parties interested in them, as standards of comparison.
    4. Appeal and ebrob, § 1011*—when statements in brief as to argument of counsel unavailing. Statements in a brief that statements were made in the argument at the trial to create prejudice against appellant, and that the verdict was procured by theories and arguments of counsel for the defense, were unavailing where the record contained no part of the argument of counsel, nor a single objection thereto.
    5. Signatures, § 3*—when finding on claim against estate on note not disturbed. In a claim against an estate upon a note claimed to have been executed by the intestate, where the signature was denied, the finding for the estate was not disturbed, where four witnesses acquainted with the signature of decedent testified that the signature of decedent was genuine, and seven, likewise familiar with such signature, and two experts, testified that such signature was not that of decedent.

      6. Signatures, § Z

      —wlten findings on claim against estate on note conclusive. In a claim against an estate upon a note claimed to have been signed by the intestate, but where the signature was disputed, the finding of three juries that the signature was not that of the decedent was accepted as conclusive.
    Error to the Circuit Court of Sangamon county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 9, 1919.
    John G-. Friedmeyer, for plaintiff in error.
    Sampson & Gipptn, for defendant in error.

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

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

   Mr. Justice Waggoner

delivered the opinion of the court.

This suit involves a claim filed, March 6, 1917, by J. A. Jennings against the estate of G-eorge Glover, deceased, based upon what purports to he a promissory note given by George Glover to J. A. Jennings, for the sum of $1,000 dated May 8, 1916, bearing 6 per cent interest. Prior to a hearing on the claim in the Probate Court, the administrator of the estate filed an affidavit as provided in section 52, ch. 110, Hurd’s Rev. St. 1917 (J. & A. 8589), denying the execution of the note, embodying in such affidavit a denial of a consideration therefor. No real defense was interposed to the allowance of the claim in the Probate Court, and the same was allowed. An appeal was taken to the Circuit Court, and after a third trial in that court this writ of error is being prosecuted from a judgment against J. A. Jennings for cost.

In the brief and argument for plaintiff in error, under the heading of, “Points contended for by claimant in this case for reversal,” five points are stated: First. The trial court should have stricken the pleas from the files. Second. The trial court admitted incompetent evidence on behalf of the defendant in error. Third. The trial court committed error in refusing to give instructions 0, D and E asked by the claimant. Fourth. The evidence of the experts testifying on behalf of the defendant in error, who were, not acquainted with the signature of the deceased, should have been excluded on motion of the claimant. Fifth. The verdict of the jury is manifestly against the weight of the evidence and is the result of passion and prejudice.

The record shows that, prior to the trial, a motion was made to strike the affidavit from the files and denied. It is said, by plaintiff in error, that the trial court should have stricken “the pleas” from the files. We take it that he means the affidavit, but nothing is said in support of this contention, other than that the affidavit did not specifically deny the execution of the note. The affidavit states that George Glover, deceased, did not make and deliver the alleged note on which said claim is based. The affidavit contains, in addition to a denial of the execution of the note, statements of other defenses not contemplated by the section of the statute under which the affidavit was made, but that would be no. reason for striking it from the files. Defendant in error not only had a right to file an affidavit denying the execution of the note, but was, by the statute, required to do so in order to be permitted to deny on the trial its execution. The motion to strike was properly denied.

The evidence which plaintiff in error claims under the second point was incompetent, was a signature card used as the accepted signature of George Glover by The Farmers National Bank, where he kept an account, and upon which card he had written his name twice, also two checks, one given by George Glover, December 29,1916, and the other given to and indorsed by him dated December 13,1916. Both of these checks had been treated .as genuine by all parties interested in them. One of the checks was drawn upon the Springfield Marine Bank, the other upon The Farmers National Bank, and each check was paid by the bank upon which it was drawn.

A general objection only was made to the admission of these writings. No specific objection was interposed. The objections now urged are that they were no part of the transaction or files in the case, to be used by the jury as standards of comparison. The cases of Stitzel v. Miller, 250 Ill. 72, and Whitaker v. Mastin, 143 Ill. App. 195, are cited in support of the objections, but each of these cases was tried prior to the enactment of section 52, ch. 51, Hurd’s Rev. St. 1917 [Call. 1916 Stat. j[ 5566(1)], under which it is lawful to prove handwriting by comparison made by witnesses or a jury, not only with writings properly in the files or records of the case admitted in evidence or treated as genuine, but by writings proved to be genuine to the satisfaction of the court. The genuineness of the signatures of George Glover, appearing on the card and .checks, was established by evidence and is not questioned. Such writings were properly admitted by the court as standards of comparison.

Section 77, ch. 110, Hurd’s Rev. St. 1917 (J. & A. f 8614), provides that “if either party may wish to except to the verdict, or for other causes, to move for a new trial * * * he shall, * * * file the points in writing, particularly specifying the grounds of such motion.” In the written motion to set aside the verdict in this case, no mention is made of either instruction C, D or E, and the same is true in reference to the errors assigned upon the record.

It is urged that the verdict is against the weight of the evidence, and is the result of passion and prejudice. There is nothing in the record indicating that the verdict is not the result of fair and impartial deliberation by the jury. It avails plaintiff in error nothing to say, in his brief, that statements were made in the argument of the ease in the trial court to create prejudice against him, and that the verdict was procured by the theories of argument of counsel for the defense, when the record contains no part of the argument of counsel nor a single objection thereto.

Four witnesses testified on behalf of plaintiff in error, two of whom were officers in one of the banks in which George Glover had a checking account prior to and at the time of his death, one a former employee in decedent’s store, and the other witness had had business transactions with decedent, and procured on the trial six checks given him (George Glover) at various times afterwards, indorsed by George Glover, paid by a bank and returned to the witness. These witnesses each testified that they were acquainted with the signatura of Geprge Glover from having seen him write, and that the signature on the note in question was his genuine signature.

Seven witnesses, called by defendant in error, each testified they were familiar with the handwriting of George Glover. Three of them were officials in another bank in which decedent kept an account, two were former clerks in his store, and two were persons with whom he had done business. All these witnesses testified that the signature in question was not that of George Glover. Defendant in error also called two witnesses, who qualified as handwriting experts, and submitted to each of them the checks and signature card hereinbefore referred to, together with the note. After a comparison of the signatures to these writ-, ings, both experts gave as their opinion that the signature to the note and other writings were not written by the same person.

We have referred to the testimony, given in the trial court, for the purpose of showing that there was a conflict in it, and that it is sufficient to support a verdict for the defendant in error.

The record discloses no errors of law, nor is there anything indicating that the verdict was the result of passion or prejudice. Three juries have found that the signature to the note, upon which this suit is based, is not that of George Glover, and such finding of that fact should be accepted as conclusive and this litigation ended.

In Hinchliff v. Rudnik, 212 Ill. 569 (573), it is said: “Inasmuch as three juries have found the facts the same way, it seems to be eminently proper that there should be an end of the controversy so far as the facts are concerned. Parmly v. Farrar, 204 Ill. 38, and cases cited.” In Mills v. Larrence; 120 Ill. App. 83 (84), this court said: ‘ ‘ Furthermore this case has been thrice tried by a jury. Upon each of the trials the issues of fact involved were practically the same, and the evidence adduced was substantially similar. In each instance the jury has found the issues of fact for the plaintiff, and the trial court has approved the verdict returned. As is said by the Supreme Court in Silsbe v. Lucas, 53 Ill. 479: ‘It would seem to be eminently proper, where three juries have found the facts in the same way, that there should be an end to the controversy as to what the facts are.’

See also, Parmly v. Farrar, 204 Ill. 38; Hinchliff v. Rudnik, 212 Ill. 574.” This court also said in Bates v. Danville St. Railway & Light Co., 190 Ill. App. 486: “It is urged that the verdict is contrary to the evidence. Two juries have passed upon the facts of this case, each finding in favor of appellee. After the first trial, the court set aside the verdict and granted a new trial. While the evidence is conflicting, two juries have heard it, and where several juries have found the facts the same way and there is evidence in the record tending to sustain their verdicts, the judgment will not be reversed upon the facts. Parmly v. Farrar, 204 Ill. 38.”

Judgment affirmed.


author: Mr. Justice Waggoneb

text:
    Susie Radebaugh, Appellee, v. F. W. Woolworth Company, Appellant.
    1. Negligence, § 24

      —what is duty of storekeeper to customer. Where the keeper of a store for the sale of goods invited patronage, a customer who accepted the invitation and went into the store was rightfully there, and the storekeeper owed her a legal duty to protect her against injury, which demanded reasonably safe arrangements for the protection of his customers.
    2. Negligence, §§ 191, 198*—when questions of negligence and contributory negligence in action against storekeeper for personal injuries are for jury. A woman, who while shopping in defendant’s store fell down an unguarded opening in the floor for a stairway at the end of the counter at which she was looking for wares, was not guilty of negligence as a matter of law, where it appeared that patrons having occasion to go into defendant’s office, and customers examining wares at such counter would come close to such opening; and the questions as to negligence on the part of defendant and contributory negligence as a matter of fact, on the part of appellee, were for the jury.
    3. Negligence, § 164a*—what evidence admissible in action against storekeeper for personal injuries to show negligence on part of defendant. In an action for injuries by a plaintiff who, while shopping in a store, fell into an unguarded opening in the floor for a stairway, plaintiff would have had the right to prove that the public generally and customers came into the space in question, in order to show that defendant, for the protection of the customers, should have kept the gate at the head of the stairway closed.
    4. Negligence, § 226*—when instruction on question of ordinary care not erroneous. An instruction on the question of ordinary care which made the standard that which persons of ordinary prudence would usually exercise, was not erroneous.
    5. Damages, § 120*—when verdict for complicated personal injuries not excessive. A verdict for $1,294, in favor of a woman 65 years old, was not excessive, where her wrist was broken and deformed and various parts of her body were bruised and she could neither close one of her hands nor use it, so that she could only work with the other hand.
    Appeal from the Circuit Court of Vermilion county; the Hon. Waltes Bbeweb, Judge, presiding. Heard in this court at the April term, 1919. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 9, 1919.
    Lindley, Penwell & Lindley and.John A. Bloomingston, for appellant; John A. Bloomingston, of counsel.
    Clark & Hutton, for appellee.

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

   Mr. Justice Waggoneb

delivered the opinion of the court.

Susie Radebaugh brought suit in the Circuit Court of Vermilion county to recover damages for injuries sustained by her as the result of having fallen down a stairway leading from the first floor into the basement of a store of F. W. Woolworth Company (a corporation) at Danville. She obtained a judgment against the company for $1,294 and to reverse such judgment this appeal is prosecuted.

The store extends lengthwise from west to east with the entrance at the west end, and was equipped with shelves, counters and tables necessary to display goods and wares for sale and for the service of patrons. In the southeast corner of the store was a small space, upon a floor higher than that of the remainder of the room, fenced off for an office. The shelves on the south side of the room extended from the west end east to the office. A counter 3 feet wide, with several opening's in it to give clerks access to the space between the counter and the shelves, just mentioned, also extended from the west end of the store east to a point 3 feet from the office. The floor space at the end of this counter, and west of the office, was 3 feet east and west by 6 feet north and south. On the east end of the counter was a display of tinware, and the shelves on the south side of the space filled with chair bottoms and the shelves immediately west thereof with tinware. The space south of the east end of the counter, and between the two displays of tinware, was entirely taken up by an opening in the floor for a stairway leading to the basement so that no clerk could stand behind the counter, by reason of the absence of a floor at that point, nor could any one go from the 3-by 6-foot space behind the counter for the same reason. The opening in the floor was 2y2 inches west from the east end of the counter. A gate, when closed, extended from the south wall to the south side of the east end of the counter, and thereby guarded the opening in the floor. The gate was equipped with a coil spring to close it, but by opening the gate and pushing it back far enough against the wall, the spring could not operate. At the time of the accident the gate was open and so pushed back, and had been in that condition the entire day. It afforded no protection to clerks while behind the counter and must have been constructed for the protection of persons who came in to the 3-by 6-foot space. When the gate was open there was nothing to guard or give notice of the opening in the floor. Three feet directly east from the stairway opening was the office door. Patrons having occasion to go into the office would come close to this opening and the same would be true of customers examining the tinware on the east end of the counter, or the chair bottoms on the shelves marked with their price and arranged for display. The basement had a 10-foot ceiling. The stairway was used by employees in going to and returning from the basement, in which was located a rest room, a work room and storage room for extra stock.

Appellee lived at Saratoga, Indiana; was in Dan-ville visiting her sister, Mrs. J. B. Jackson, and had never been in the store. On the day of the' accident these ladies entered appellant’s store to make some purchases. They passed down the aisle in front of the counter running east on the south side, and while doing so bought some articles. One of the things appellee wanted was a slaw cutter. 'She had asked for one at a place along the counter, but none was there and she had not gotten one. When appellee had reached the end of the counter Mrs. Jackson was within a short distance from her. Appellee saw on the shelves a combination slaw cutter, stepped just around the end of the counter, and pointing to the combination slaw cutter, started to call her sister’s attention to it, when she slipped and fell through the stairway opening into the basement.

The' first count of the declaration alleges that it was the duty of appellant to use reasonable care and caution to keep the parts of its store where persons as members of the buying public might be expected to pass, repass, or be about, in a reasonably safe condition, so as not to permit or cause injury to any of them while in the store; that appellant, in violation of such duty, carelessly and negligently kept and. used this stairway without having the top of it guarded by a closed gate or other means to prevent such persons from falling down it and sustaining injuries; that appellee was in the store purchasing certain articles, and not being advised or having any knowledge of the dangerous condition occasioned by the unprotected stairway, slipped and fell into the basement and was injured. The second count describes the stairway, the location of it, alleges it was dangerous unless securely guarded; that appellant negligently and carelessly maintained and operated a certain barrier, but not sufficiently strong, locked, fixed or attached as to prevent injury, and appellee without being warned, advised and protected, slipped and fell into such opening and was injured.

The grounds upon which appellant contends the judgment should be reversed are: (1) that .there was no evidence of negligence; (2) appellee was guilty of contributory negligence as a matter of fact and of law; (3) the court erred in admitting evidence regarding a custom of people using the aisle behind the counter; (4) the court erred in giving an instruction asked by appellee; and (5) that the verdict is excessive and shows passion and prejudice.

The first and second contentions may be considered together. Appellant was maintaining a store for the sale of goods, and thereby invited patronage. Appellee, having accepted the invitation and gone into the store, was rightfully there, and appellant owed her a legal duty, which demanded reasonably safe arrangements for the protection of its customers. Franey v. Union Stock Yard & Transit Co., 235 Ill. 522 (527); Shobert v. May, 40 Ore. 68, 91 Am. St. Rep. 454. The evidence tends to show that, at the time of the accident, appellee was at a place where she had the right to be. In the arrangements of the store an office had been located in one corner of it. A counter ended 3 feet from the office, leaving a space of 3 by 6 feet through which persons would have to pass in order to get from the main part of the store into the office. Customers wanting to inspect articles placed on the end of the counter, or that were displayed on the shelves immediately south from the office door, would consider they had a right to enter this space in order to do so. On one side of this space was an opening in the floor, which appellant recognized as being a place requiring a barrier of some kind to prevent persons from walking, or otherwise getting into it, by providing a gate equipped with a coil spring to pull it shut, and thereby close the opening. On the day of the accident this gate had been opened and placed in such a position that it could not close, and by reason of that fact appellee fell into the cellarway. With the gate, open or closed, when she slipped she might have fallen, but not into the cellar if the gate had been closed as it should have been. Appellee was not guilty of negligence, as a matter of law, and the questions as to negligence on the part of the appellant and contributory negligence, as a matter of fact, on the part of appellee, were for the determination of a jury. Milauskis v. Terminal R. Ass’n of St. Louis, 286 Ill. 547 (557); City of Chicago v. Moor, 139 Ill. 201. Both of these matters have been decided adversely to appellant, by a jury, and the record discloses no reason why such decision should be set aside.

Ño evidence was offered, and, of course, none admitted by the court, regarding a custom of people using the aisle behind the counter. As before stated, no use was made of the aisle behind the counter, at the place involved in this case, on account of the absence of a floor. Appellee asked Herbert Smith, a former employee of appellant: “What was the practice in that store generally as to the public or customers being in this alleyway between the office and the counter?” At the time of the accident the witness had been working one week in the basement, and had been on the main floor very little. He stated that on one occasion when he came from the basement, he saw a man in this space looking at the chair seats. If the public generally or customers came into the alleyway, appellee would have a right to prove it to show that appellant, for the protection of its customers, should have kept the gate at the head of the stairway closed.

The court, at the request of appellee, instructed the jury, “that ordinary care depends upon the circumstances of each particular case and is such care as a person of ordinary prudence and skill would usually exercise under the same or similar circumstances. So in this case, if you believe from a preponderance of the evidence that the plaintiff, Susie Badebaugh, received the injury complained of in her declaration and that at and just prior to the time she received such injury, if the evidence shows she did receive such injury, she was in the exercise of that degree of care for her own personal safety that an ordinary person would usually have exercised under the same or similar circumstances and surroundings, then she was exercising all the care for her own safety that the law required of her.”

Appellant insists this instruction was erroneous because it makes the standard of law that which persons of ordinary prudence would ususally exercise, and that is not the test. Further, that the rule is that a person must use the care that the ordinary person of prudence would exercise, not the care that a person would usually exercise.

In Chicago Union Traction Co. v. Chugren, 209 Ill. 429, the court had under consideration an instruction which told the jury that if they “believed, from the evidence, that the plaintiff in endeavoring to cross over the tracks of said company, and while on said tracks, or either of them, exercised that caré and foresight to avoid the danger that a person of ordinary prudence, caution and intelligence would usually exercise under the same or similar circumstances, then you should find that the plaintiff was not guilty of contributory negligence.” In reference to the same criticism made of this instruction, in regard to the use of the word “usually” as is made by appellant, the court said: “It is true that men who are generally prudent and cautious are sometimes careless or inattentive to danger, and that the standard of ordinary care is to be determined from what prudent men generally or ordinarily do, and not on occasions where there may be a lapse from their usual habit of care. The jury are to determine what a reasonably prudent man would ordinarily do in a given state of circumstances. We think the instruction is not subject to the criticism offered, but that it conforms to the rule contended for by counsel.”

In Wabash Ry. Co. v. Elliott, 98 Ill. 484, it is said that: “The law of this case required of the plaintiff that he should use ordinary care, considering his surroundings, that is, such care as men of ordinary prudence would usually exercise under the same or like circumstances.” In Cronin v. Village of Delavan, 50 Wis. 375, it is said that an instruction reading, “ordinary care is that degree of care which persons of ordinary prudence would usually use under the same circumstances,” is an accurate statement of what constitutes ordinary care.

Appellee was, at the time of the accident, 65 years of age. Her wrist was broken and she suffered bruises on her shoulder, elbow and knee. Her wrist is deformed. She cannot close one of her hands, cannot use it. The only work she is able to perform is such as can be done with the other hand. The damages are not excessive, and there is nothing to indicate any passion or prejudice on the part of the jury.

The judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Walter H. Howell, Plaintiff in Error.
    1. Parent and child, § 11

      —when indictment for failure to provide for support of child sufficient. An indictment in the language of Hurd’s Rev. St. 1917, ch. 68, sec. 27, p. 1657 [Call. 1916 Stat.
    If 3433(1)], making it a criminal offense for any person to neglect to provide for the support of his or her child under 18 years in necessitous circumstances, and containing all material allegations and fully informing defendant of the crime charged, was sufficient.
    2. Pabent and child, § 11*—what not defense to indictment for failure to provide for support of child. A father was not relieved from his duty to support his child under 18 years in necessitous circumstances, who resided with his mother, where each parent claimed that their separation was the fault of the other; nor was it a defense to an indictment under Hurd’s Rev. St. 1917, ch. 68, sec. 27, p. 1657 [Call. 1916 Stat. U 3433(1)], for neglect to support such child, to fix the blame of the separation upon the mother.
    3. Husband and wife, § 273

      —ivhen desertion 6y wife is defense to prosecution for failing to support her. The fact that a wife deserts her husband and refuses to live with him is a good defense to a criminal prosecution for not supporting her, as a husband is obliged to support his wife only at his domicile and not at such a place as she may choose to live.
    4. Pabent and child, § 11*—who may commit statutory offense of failing to provide for support of child. The words “any person,” in Hurd’s Rev. St. 1917, ch. 68, sec. 27, p. 1657 [Call. 1916 Stat.
    K 3433(1)], making it a criminal offense for any person to neglect to support his or her child under 18 years in necessitous circumstances, means the father or mother, and the offense described in such act may be committed by either or both parents.
    5. Pabent and child, § 11*—what not defense to prosecution for failure to provide for support of child. The fact that a child under 18 years was being cared for by his grandparents was no defense in a prosecution against the father, under Hurd’s Rev. St. 1917, ch. 68, sec. 27, p. 1657 [Call. 1916 Stat. ]f 3433(1)], for failure to support such child.
    Error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. -Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 9, 1919.
    Whitley & Fitzgerald and John A. Walgren, for plaintiff in error.
    Jesse L. Deck, Charles F. Evans and A. E. Ivens, for defendant in error.

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

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

   Mr. Justice Waggoner

delivered the opinion of the court.

An indictment was returned in the Circuit Court of Macon county, on October 15, 1918, against the plaintiff in error, containing two counts. In the first count he is charged with having, without any reasonable cause, unlawfully neglected to provide for the support of his wife, Lelah Howell, and that she was in necessitous circumstances.

The second count of the indictment contains a similar charge with reference to his child, Dale H. Howell.

On the trial in the Circuit Court, the plaintiff in error was found not guilty by the judgment of the court, a jury having been waived, of the charge contained in the first count, and to be guilty of the charge made in the second count. He was sentenced to pay a fine of $180 and cost. The fine imposed was made payable in monthly instalments of $15 each month until the sum of $180 be fully paid. Plaintiff in error was ordered to stand committed to jail until such fine and -cost were paid, or until he should give bond or be otherwise discharged according to law.

It is urged, by plaintiff in error, that the second count of the indictment is fatally defective in that it fails to state any facts constituting the alleged crime. The statute under which the indictment is predicated (Hurd’s Eev. St. 1917, ch. 68,' see. 27, p. 1657 [Call. 1916 Stat. ff 3433(1)]) makes it a criminal offense for any person, “without lawful excuse, to * * * neglect * * * to provide for the support * * * of his or her child * * * under the age of eighteen years, in * * * necessitous circumstances.” The indictment is in the language of the statute creating the offense, contains all allegations that are material, and fully informs the plaintiff in error of the crime with which he is charged, and is therefore sufficient.

The evidence shows that the plaintiff in error and Lelah Deckreville were married December 23, .1917, and that the child, Dale H. Howell, was born to them September 24, 1918. The parents lived together until September 7, 1918, when a separation occurred, which has continued until the present timo.

Each parent claims that the separation was the fault of the other. Be that as it may, the father is not relieved from his duty to provide for the support of his child under the age of 18 years, nor is it any defense to the charge against the father to fix the blame of such separation upon the mother. The fact that a wife deserts her husband and refuses to live with him is a good defense to a criminal prosecution for not supporting her, as a husband is obliged to support his wife only at his domicile and not at such a place as she may choose to live. (8 R. C. L. p. 308, par. 334; Spencer v. State, 132 Wis. 509.) That defense secured an acquittal of plaintiff in error of the charge made in the first count of the indictment, but does not constitute a lawful excuse for neglecting to provide for the child and to avoid the penalty prescribed by the statute for so doing. The language of the statute is “any person,” meaning the father or mother, and the offense therein described may be committed by either or both parents. (State v. Morgan, 155 Iowa 482, 40 L. R. A. (N. S.) 615.)

It avails the plaintiff in error nothing that the child is being cared for by its grandparents. To a criminal prosecution for neglecting to support a child, it is no defense that the child did not suffer actual want, having been cared for by volunteers. 20 B. O. L. p. 623.

No error was committed, in this case, in overruling the motion in arrest of judgment. The evidence sustains the judgment of the Circuit Court and the same is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Higbee

text:
    Harry B. Dunlap, Appellee, v. Brotherhood of Railway Trainmen, Appellant.
    1. Appeal and error, § 892

      —when judgment will be affirmed for failure to file proper abstract. The judgment below was affirmed in a case where appellant signally failed to comply with rule 23 of the Appellate Court relating to the contents of abstracts, by failing to show the pleas to which a demurrer had been sustained, the instructions and necessary orders in its abstract; and the fact that some of the pleas and instructions were set out under appellant’s statement with its brief was unavailing.
    2. Appeal and error, § 866*-—what is effect of rules of court regarding abstracts. Rules of court respecting the making and filing of abstracts have the force of law and are obligatory upon the court as well as the parties and must he enforced according to their terms while in force.
    3. Appeal and error, § 892*—when judgment will be affirmed for failure to file proper abstract. Where appellant’s special pleas.' to which a demurrer had been sustained, did not appear in the abstract either in hcec verba or in substance, and where neither the demurrer, the instructions, the verdict, the judgment, nor the motion for new trial and the ruling of the court thereon was shown, they were not before the court for consideration, and consequently the error assigned in sustaining the demurrer to the pleas was not considered, and the judgment for plaintiff was affirmed.
    4. Appeal and error, § 892

      —when court will not search record for grounds for reversal. Courts of review will not go to the record to find reasons for reversing or affirming the judgment, or for reasons for reversal not shown by the abstract.
    Appeal from the Circuit Court of St. Clair county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 12, 1919.
    Rehearing denied June 6, 1919.
    W. O. Collister and W. P. Launtz, for appellant.
    T. M. Webb, for appellee.

      See mmols -Noves uigest, Vols. XI vo XV, and Cumulative Quarterly, same topic and section number.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Suit was started in the Circuit Court of St. Clair county by Harry B. Dunlap, appellee, against the Brotherhood of Railway Trainmen, appellant, under a benefit certificate issued by appellant to appellee providing for benefits in case of personal injury of a member.

The declaration was based on the certificate, and appellant filed three special pleas and the general issue. A demurrer to the special pleas was sustained and there was a trial on the declaration and the plea of the general issue. At the conclusion of all the evidence appellant asked for a peremptory instruction, which request was refused. Upon motion of appellee the court then directed the jury to find the issues in favor of appellee and assess his damages at $1,968.55, which was done. Motions for new trial and in arrest of judgment were overruled, judgment was rendered on the verdict, and the ease was brought to this court reversed and remanded. (206 Ill. App. 209.) The case was redocketed in the Circuit Court of St. Clair county, and appellee filed an amended declaration, to which appellant filed a plea of general issue and seven special pleas. Appellee demurred to the special pleas, the demurrer was sustained, there was a trial with a jury on the amended declaration and the plea of general issue, resulting in a verdict in favor of appellee in the sum of $1,872.80, judgment was rendered thereon and the case brought to this court a second time. The errors assigned are: (1) Sustaining appellee’s demurrer to appellant’s special pleas; (2) admitting improper testimony for appellee; (3) refusing to give appellant’s peremptory instruction at the close of appellee’s testimony; (4) excluding proper testimony offered by appellant; (5) refusing to give appellant’s peremptory instruction at the close of all the testimony; (6) giving appellee’s instructions; (7) refusing proper instructions offered by appellant; (8) denying appellant’s motion for new trial and rendering judgment on the verdict; and (9) that the judgment is contrary to the law and the evidence.

While appellee earnestly insists that the case should be affirmed on its merits, he contends that the judgment of the Circuit Court must be affirmed because appellant has failed to comply with the rules of this court and the law in the preparation of the abstract. The abstract fails to set forth, in hoec verba or in substance, either of the seven special pleas of appellant to which appellee’s demurrer was sustained, the demurrer thereto, the instructions, the verdict of the jury, the judgment of the court, the motion for a new trial or the ruling of the court thereon. Rule 23 of this court provides that: “In all cases, the party bringing a case into court, shall furnish a complete indexed abstract or abridgment of the record therein, referring to appropriate pages of the record by numerals on the margin, and shall cause such abstract to be printed in a neat and workmanlike manner,” etc. While, under its statement with its brief, appellant set out eight pleas and a number of instructions, it is at once apparent that it signally failed to comply with rule 23 of this court. Rules of court respecting the making and filing of abstracts have the force of law and are obligatory upon the court as well as the parties, and must be enforced according to their terms while they remain in force. Lancaster v. Waukegan & S. W. Ry. Co., 132 Ill. 492; Cahill v. Printy, 138 Ill. App. 600.

The object of rules governing the preparation for and presentation of cases in this court is to facilitate the orderly disposition of business and expedite the prompt administration of justice. Litigants have a right to expect other litigants as well as the court to comply with its rules. This court has said: “We have no right to waive the enforcement of these rules as a matter of favor in any case without granting the same indulgence in other cases, and thus effectually suspending the operation of the rules altogether. ’ ’ Spain v. Thomas, 49 Ill. App. 249.

It is the duty of parties to prepare and file complete abstracts in accordance with the rules. It is not the duty of the court to perform this work for counsel. The rule is the same in all cases and should not be relaxed. Gibler v. City of Mattoon, 167 Ill. 18.

Courts of review will not go to the record to find reasons for reversing or affirming the judgment, or for reasons for reversal not shown by the abstract. Gage v. City of Chicago, 211 Ill. 109; Friedlander v. Edgerton, 182 Ill. App. 391; Biggs v. Peoria & P. U. Ry. Co., 182 Ill. App. 613; White Oak Coal Co. v. Worthington, 188 Ill. App. 567.

WThere appellant furnishes an incomplete abstract, in violation of the rule, it is not the duty of the court - to search the record for reversible error. Salisbury v. Deutsch, 178 Ill. App. 633; Love v. Dick, 177 Ill. App 98, and cases there cited.

In Cahill v. Printy, supra, the Appellate Court of the first district uses this language: “What is relied upon as error must be set out in the abstract, and alleged errors not based upon anything appearing in the abstract of record will not be considered by the court,” citing many holdings of the Appellate Court of this State to that effect.

Appellant’s seven special pleas, not appearing in the abstract, are not before us for consideration and consequently we must decline to consider the error assigned in sustaining the demurrer thereto. First Nat. Bank of Manlius v. Garland, 160 Ill. App. 407; Zinkl v. Aluminum Co. of America, 169 Ill. App. 191.

As neither the special pleas, the demurrer thereto, appellee’s instructions, appellant’s refused instructions, nor the motion for a new trial appears in the abstract, this court is not in position to consider the other errors assigned. City Electric Ry. Co. v. Jones, 161 Ill. 47; City of Roodhouse v. Christian, 158 Ill. 137; Chapman v. Chapman, 129 Ill. 386.

To consider any one of the errors assigned would require this court to search the record for grounds of reversal. This it will not do. Gage v. City of Chicago, supra; Gibler v. City of Mattoon, supra; Love v. Dick, supra.

As under the numerous authorities discussed referred to, it is manifest the abstract is not sufficient to present any of the errors assigned, the judgment will be affirmed'.

Affirmed.