text:
    Emily J. Parrish et al., Appellees, v. Black Diamond Coal Company, Appellant.
    Mines and Minees Act—when instruction erroneously authorizes recovery. In an action under the Mines and Miners Act, an instruction is erroneous which authorizes a recovery if the jury find from a preponderance of the evidence that the defendant has “wilfully failed and neglected to comply with the provisions of the statute as alleged in the declaration,” one count of the declaration charging that the mine manager “in particular did not properly mark and display a danger signal at said bank of coal,” the statute upon which such declaration was predicated being that said mine manager shall “see that all dangerous places above and below are properly marked and that danger signals are displayed wherever they are required.”
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    Hamilton, Catron & Sampson, for appellant.
    Robert H. Patton, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by the administratrix of the estate of John Parrish, deceased, against the Black Diamond Coal Company, a corporation, and the owner and operator of a coal mine near Auburn, Illinois, for the recovery of damages accruing to the widow and children of her intestate, whose death is. alleged to have been caused by the wilful violation by appellee of the statute relative to Mines and Miners. The plaintiff recovered judgment for $2,000 from which the defendant appeals.

The first count is based upon section 18 of said act, which prescribes the duties of mine examiners and alleges in substance that the deceased was working as a helper on a machine used in cutting coal in a certain pillar which had been theretofore fired and loosened, so that when the machine cut into the same, it fell upon and killed deceased; that the defendant’s mine examiner did not visit and inspect said mine, and did not inscribe on the walls of the working places with chalk the day and month of his visit, and place a conspicuous mark as notice to all men to keep out of dangerous places and did not report to the mine manager when dangerous conditions were discovered, and did not prevent any one from entering or remaining and working in said mine until all conditions were made safe, and did not make a daily record of the conditions of said mine in a book kept for that purpose, preserved in the office of the defendant, and did not make such record before deceased was permitted to. enter said mine; that on account of such wilful violation of the statute, the deceased went to work in said mine where said coal was loose and apt to fall, all of which could have been determined by the defendant had its mine examiner made a proper inspection; by means of which wilful failure to comply with the statute, the “plaintiff” was greatly injured by coal falling upon him and soon died.

The second count is intended to be based upon section 18 of the statute prescribing the duties of mine managers and alleges that the defendant was engaged in mining coal in said mine by machines and by blasts of powder placed in the banks of coal, that deceased was assisting in the operation of a machine against a bank of coal in a certain pillar; that appellant’s mine manager did not visit all the various, working places in said mine as often as practicable, and did not see that all dangerous places above and below were properly marked and danger signals displayed, and in particular did not properly mark and display a danger signal at said bank of coal which had been rendered dangerous to machine men there operating, because a certain shot had been fired therein;. that because of such wilful failure deceased was at work at said bank of coal, and on account of its condition said bank of coal fell upon him and caused his death. The defendant pleaded the general issue to both counts.

The evidence discloses the following facts: On and prior to November 1, 1906, appellee’s intestate, an employe of appellant, was engaged in assisting in the operation of an electric coal-cutting machine in use in a certain room of appellant’s mine. On that day the room in question had been opened toward the .north-to its full length of about 200 feet. For the purpose of opening an air course through the north wall of. the room into an adjoining room, the machine operator then began cutting with the machine under the face of the coal at a place theretofore designated and marked by the mine manager. When the machine had made one full length cut it was removed one width to the east, and a second cut begun. The deceased then started to shovel away the- debris caused by the first cut, and while he was kneeling down, for that purpose, the coal in the wall above the machine suddenly split away and fell upon him, whereby he received injuries which caused his death shortly thereafter. Some three weeks before, one Proctor, who was then engaged in mining coal in the room, had bored two holes each of a depth of two feet into the east wall and about two feet south of the north wall, one about a foot below the roof and the other three or four feet below the first. After the accident, a crack was discovered in the coal back of the surface of the wall extending from one hole to the other, and in line with the rear end of -the holes, in consequence of which when the machine cut out the supporting coal at the bottom, the coal above had become detached and fallen. It is not controverted that such condition was created by the improper boring of the holes—in the north wall and the subsequent firing of the charges of powder placed therein. The main controversy upon the trial was as to whether the existence of the holes and the dangerous conditions arising therefrom, were so apparent as to have been discoverable upon a proper inspection by the mine examiner. The mine examiner, Potter, testified that he had made daily examination of the room prior to and including the morning of the accident, but at no time saw or 'knew of the existence of the holes in question; that there was at no time any indication of a dangerous condition; that he made no marks in the room other than those indicating the dates of his visit; that upon completing his examination on the morning of the accident he made a correct report of the condition of the mine as he found it at that time, showing the same to be in good condition. Both the mine manager and the superintendent testified that they had inspected the room on the day before the accident and frequently prior thereto, and found nothing to indicate any dangerous conditions therein. The evidence adduced by appellee tended to show that the mine examiner had failed properly to examine the room, and that if he had done so, the dangerous condition of the room would have been apparent. The trial court therefore properly refused to direct a verdict for appellant. As the judgment must be reversed for the reason hereafter indicated, it will be unnecessary further to discuss the evidence.

The first instruction given at the request of appellee, after reciting the statute relative to mines and miners, told the jury that if they believed from a preponderance of the evidence that the defendant had “wilfully failed and neglected to comply with the provisions of the statute as alleged in the-declaration” and that as the direct result thereof, the deceased received injuries which resulted in his death they should find the defendant guilty. It will be observed-that the second count of the declaration after alleging the failure of the mine manager to comply with the statute in certain other particulars, alleges that he “in particular did not properly mark and display a danger signal at said bank of coal,” and that because of such wilful failure the bank of coal fell and caused the death of the deceased. Paragraph “D” of section 16 of the Mining Act provides that the mine manager shall “see that all dangerous places above and below are properly marked and that danger signals are displayed wherever they are required.” The instruction thus authorized a verdict for the plaintiff, in the event that the jury found that the dangerous condition was known to the mine manager and that he- did not personally “properly mark and display'a danger signal at the bank of coal” where such condition existed; thereby permitting a recovery for the violation of an alleged duty not imposed by the statute.

It being impossible to determine under which count of the declaration the verdict .of the jury was returned, the judgment of the Circuit Court must 'be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    The People, ex rel. Raymond D. Cooley, Appellant, v. J. J. Quinn, City Comptroller, Appellee.
    1. Municipal corporations—duty of city comptroller. Held, that it was the duty of the city comptroller of the city of Bloomington to turn over moneys when collected to the lawful custodian thereof, namely, the city treasurer, but that in the performance of such duty he possessed a reasonable discretion.
    2. Mandamus—character of duty enforceable by. The duty, the performance of which it is sought to coerce by mandamus, must be actually due and incumbent upon an officer at the time of seeking relief, and the writ will not lie to compel the doing of any act which he is not yet under obligation to perform.
    Mandamus. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Louis Fitz Henry, for defendant in error.
    Dooley & Dooley, R. C. De Mange and A. E. De Mange, for plaintiff in error.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a petition for a writ of mandamus to compel the defendant, City Comptroller, to turn over to plaintiff, City Treasurer, from day to day, in the ordinary, regular course of business, the revenues and other moneys of the city, collected by him in his official capacity ; and prohibiting him, the comptroller, from depositing the same to his own credit in bank or elsewhere, subject to his own check; and asking for such further order as justice, petitioner’s rights and the public interests may require.

The petition alleges that the relator was elected and qualified -as city treasurer by giving his bond for $125,000 which was approved by the city council, and that he entered upon the discharge of his duties and has performed the same insofar as he has been permitted to do so by the defendant. That the duties of the comptroller, under the statute, special charter and ordinances of the city prior to March 8, 1907, and be-, fore .the creation of the office of comptroller and the appointment of the defendant thereto, were performed by the city clerk; that such duties are by - the statute and ordinances defined to be in part a general supervision over the receipt, collection, disbursements and return into the city treasury of the city’s revenues by all officers of the city. That by an ordinance passed March 8, 1907, creating the office of comptroller, and providing for the appointment by the city council of a person to fill said office, the incumbent thereof is required to give a bond in the sum of $40,000, conditioned, among 'other things, for the payment of all money that may be received by him as comptroller, according to the law and ordinances of the city. That neither under the statutes or under the revised ordinances of the city of Bloomington is it a prerogative or duty of the comptroller to retain in his possession, or to keep in bank or elsewhere, any moneys, of the city beyond the reasonable length of time required to pay them over from day to day, in the ordinary and-regular course of business, to the city treasurer, .the lawful custodian thereof. That relator, as city treasurer, gave his bond in the sum of $125,000, which was .duly approved, conditioned, that he would keep, account for and pay over all money which came to his hands as city treasurer, and that he would discharge all the duties of his office. That under the special charter, of the ■city of Bloomington, still in force and effect, it is. the relator’s duty as treasurer, to receive all moneys belonging to the city. That sections 5, 6, 7, 8, 9,. 10, 11 and 12, chapter 24, article 7, Revised Statutes, make it the relator’s duty as treasurer to receive all. moneys belonging, to the city and - keep a separate acco.unt of each, fund or appropriation and the debts and credits belonging- thereto, and give receipts for money paid to him and file.same with the city clerk or comptroller, with his monthly reports at the end of each month, and oftener if required by the city council; said reports to be under oath, showing the state of the treasury, the money therein, the warrants redeemed and paid by him, etc. That the statute provides that no ordinance shall be passed taking the custody of the city’s moneys from the treasurer and placing it elsewhere- except in a bank, taking a bond from such bank, with security to ■ be approved by the council sufficient to save the city from loss, which bond shall not be less than the estimated receipts for the current year' from all sources. That the treasurer is required to keep the city moneys separate from his own and is prohibited from using the' same, directly or indirectly, or permitting any other person to use the same under penalty of immedi-" ate removal from office and that he shall pay out no money except upon warrants drawn upon him, signed by the mayor and countersigned by the clerk or comptroller. That the statute and revised ordinances prohibit the city collector from keeping the city moneys in his hands or in the hands of any person or corporation beyond the time which may be required for the payment' of the same to the city treasurer. That said ordinances provide that the city collector shall pay over to' the treasurer each and every day all moneys collected' by him from any source whatever, taking the treasurer’s receipt therefor, to be filed with the comptroller. That the revised ordinances of the city, entitled the ‘ ‘ city treasurer, ’ ’ require the relator to receive all moneys belonging to the. city and make report under oath' at the end of each month and oftener when required by the city council. That the defendant has retained and unlawfully deposited in a bank or banks, the city moneys, and retained the same subject to his own control and subject to his check, withdrawing the same at will in violation of petitioner’s rights as treasurer, and has so retained the said moneys in his own hands, deposited to his own account, for periods of two weeks,’ until the same has reached the sum of $11;046. That during the month of July he paid the relator the following sums specifying each payment as follows:

July 6 General fund......................................$ 3,000.00

July 9 General fund...................................... 2,500.00

July 13 General fund......................’................. 3,000.00

July 27 General fund............„........................... 10,000.00

July 31 Library fund...........................-.......:..... 1,000.00

July 31 Local Improvements No. 1................ 163.00

July 31 Local Improvements No. 2.................. 490.33

July 31 Special Water and Light Fund........ 150.00

July 31 General Fund...................................... 9,242.57

That the defendant must have had in his hands the entire total of said special funds, during the greater part of the month of July for his own advantage and personal gain, in violation of relator’s rights as.treasurer. That the relator was prevented from discharging his official duties and from complying with his oath of office and rendered liable upon his bond for a failure to take charge of and safely keep the city funds as they accumulate from day to day. That relator had demanded of defendant that..he pay over to him all city moneys thereafter collected, and all moneys which he might thereafter collect from day to day in the due and ordinary course-of the city’s business. That the defendant had refused and continued to refuse to turn over to the relator the said moneys collected by him as aforesaid.

The court sustained a demurrer to the petition. The' relator abided thereby and judgment was entered dismissing the petition and against relator for costs, to reverse which judgment this writ of error is prosecuted.

The only question presented for our determination is as to the legal sufficiency of the petition in question. We are of opinion that the averments of the petition were insufficient to warrant a writ of mandamus compelling defendant to turn over to the relator from day to day the moneys of the city collected by him in his official capacity, or prohibiting him from depositing the same to his own credit in hank, or elsewhere, subject to his own check. It is clear that under the provisions of the statute and the ordinances of the city of Bloomington referred to in the petition, the defendant had no right to retain in his own possession or keep in bank or elsewhere, any moneys belonging to the city for any longer time after the receipt of same than was reasonably necessary, and that it was his duty to pay such moneys to the city treasurer, the lawful custodian thereof, in the ordinary and regular course of business. And if in wilful disregard of such duty, and without reasonable excuse, he should fail to pay over money actually in his hands in the ordinary and regular course of business, but retained the same for an unreasonable length of time, mandamus would undoubtedly lie. Although his duty to pay over the funds is largely ministerial in its nature, and does not call for any considerable exercise of official judgment, the officer upon whom such duty devolved, has a reasonable discretion in the performance of the same, and we are not prepared to hold that such discretion is so limited that the mere failure to pay over the money from day to day would constitute an abuse thereof. Moreover, the petition does not allege that at the time of the filing of the same, appellee had any money in his hands which he was then unlawfully or improperly withholding. The acts sought to be coerced are those to be thereafter performed. The petition in effect asks the court to anticipate that the appellee will in the future neglect or refuse to perform the duty imposed upon him by law. The duty, the performance of which it is sought to coerce by mandamus, must be actually due and incumbent upon an officer at the time of seeking relief, and the writ will not lie to compel the doing of an act which he is not yet under obligation to perform. In other words, the courts decline to grant the relief in anticipation of a supposed future omission or refusal of a public officer to discharge his duty, since it is to be presumed that all officers will properly discharge their official duties as they arise, and at the time when such duties become incumbent upon them. And until the officer has actually received the money and refused to apply it as directed by law, there has been no failure in the performance- of his duty, and consequently no ground for a mandamus. Nor will the writ be granted to compel the -performance by public officers of an act or duty which they have never refused .to perform, or as to which it is not shown they are delinquent. ' High Ext. Leg. Rem. sec. 36.

We therefore conclude that the petition does not show a clear legal right to the relief prayed.

The demurrer was properly sustained and the judgment will be affirmed.

Affirmed.


text:
    Gertrude Smith, Administratrix, Appellee, v. Chicago, Peoria & St. Louis Railway Company of Illinois, Appellant.
    1. Master and servant—what tends to establish incompetency. While a single act or omission does not necessarily establish incompetency as a matter of law, such act or omission may tend so strongly to prove a person to be careless, imprudent and unfitted for a particular position,. as to, of itself, warrant the submission of the question of his incompetency to a jury for determination as a matter of fact.
    2. Master' and servant—duty of railroad to ascertain fitness of conductor. It is the duty of a railroad company when employing a person as conductor to exercise a degree of care commensurate with the responsibilities and exigencies- of the service required of one filling that position in order that it may ascertain whether he is sufficiently qualified and competent. If such company is not assured by previous like service of such fitness it is its duty to institute affirmative inquiry to that end.
    3. Verdict—when not excessive. A verdict for $10,000 rendered., in an action for death caused by alleged wrongful act is not excessive where it appears that the deceased at the time of his death was of the age of thirty-eight years, in good health, earning from-$125 to $130 per month, and left him surviving a widow and a child of the age of seven years.

      Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Wilson, Warren & Child, for appellant.
    A. Salzenstein and T. J. Condon, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by appellee, as administratrix of the estate of her deceased husband, George Smith, against appellant for the recovery of damages occasioned by the death of her intestate, which it is alleged was caused by the negligence of the appellant. The jury returned a verdict finding the defendant guilty and assessing the plaintiff’s damages at $10,000. Judgment was rendered upon the verdict and the defendant appeals.

The declaration charges the ownership and operation by the defendant of a certain railroad; the duty to use reasonable care and .diligence in selecting and employing reasonably intelligent servants to operate its trains and locomotives; that on October 4, 1905, the defendant placed in charge of one of its work trains and the engine thereof, an incompetent, inexperienced and unqualified engineer and an inexperienced and incompetent conductor, neither of whom had any previous experience in either of such capacities in the operating and handling of trains, which fact was well known to the defendant; that by reason of said negligent and wrongful act said conductor and engineer, while in charge of said engine and train, so negligently operated and ran the same that it collided with an engine attached to a regular freight train on the defendant’s road, which engine was being operated by plaintiff’s intestate, as one of the employes of the defendant, and who had no knowledge that the defendant had placed said incompetent engineer and conductor in charge of said work train; that as a result of said collision, plaintiff’s intestate sustained such injuries that his death ensued upon the same day.

The evidence shows that on October 4, 1905, one Cuthbertson, an employe of appellant, was in charge of a work train which was being used to transport ballast from a quarry two miles- north of the railroad yards of appellant at Alton to a point five miles south of Alton. The engineer in charge .of the engine was one Scherer. On the day in question, they started to run the train backward from Alton to the quarry. The weather was at the time foggy. The rules governing those in charge of trains which required that at such times" two white lights should be displayed the same as at night was ignored. It was the duty of both Cuthbertson and Scherer before starting upon the trip to inspect the train register to ascertain whether a certain south bound train known as No. 53 had passed. Cuthbertson alone examined the register and informed Scherer that train No. 53 had passed, notwithstanding the register plainly showed that it had not. The train then proceeded toward the quarry and shortly thereafter collided with train No. 53 upon which appellee’s intestate was employed as an engineer, thereby causing his death. The evidence further shows that Cuthbertson was about thirty-six years of age; that he had been employed as a brakeman for the Grand Trunk Railroad for about seven years; that thereafter he was employed by appellant as switchman for a period of five years; that in 1902, he left the employment of appellant and worked for the Illinois Terminal Bail-road for eleven months as foreman of a switch engine; thát during his employment by appellant he had served at various times as switchman, engine foreman and extra foreman and occasionally as extra conductor. To support the charge mentioned in her declaration appellee introduced in evidence a letter written and signed by Schaff, superintendent of appellant, under the following circumstances: In September, 1904, a construction company was engaged in building an electric line near appellant’s railroad just south of Alton. A contract was entered into by appellant to furnish the construction company with a train and crew to be used in transporting ballast for the line which was being constructed. Cuthbertson desired to be placed in charge of such train and requested appellant’s local agent at Alton to use his influence to that end. The local agent' thereupon communicated with Schaff and on September 25, 1904, received a letter from him containing the following statement: “I do not think that Cuthbertson is a competent man to put on this work train. I will try and arrange to put .somebody on there who is familiar with the situation at Alton as soon as they call for it.” In addition to the foregoing evidence one Steel, called by appellee, testified that in January, 1905, he asked Schaff why he didn’t give Cuthbertson the charge of the construction train referred to and that Schaff replied that Cuthbertson “was-not competent to take hold of that work.” At this time Schaff had not examined Cuthbertson touching the duties required of one in charge of a train of that character. Cuthbertson continued his work as switchman, engine foreman and extra conductor until June, 1905, at which time he was placed in charge of a train as conductor. There is no evidence tending to show that he had ever before been involved in an acci-. dent, or that any of his fellow employes had complained that he was incompetent, or that his work was in any way unsatisfactory.

Schaff testified that during June, 1905, he examined Cuthbertson and Scherer as to their competency, and upon practically everything pertaining to the then new book of rules; that the examination did not differ from that which he made of all other employes engaged in the same service; that at the same time he examined them on the time-card and as to train orders, and that they passed the ordinary examination that related to employes; that prior to the date of the accident he had personally inspected the work of Cuthhertson-and that in the opinion of witness he was a competent person to put in charge of the train. Cuthhertson testified that he knew all the duties of a conductor to a certain extent; that he had not had any experience as a freight conductor and not much as a work train conductor except doing a little work outside the yards; that during June or July, 1905, he was examined in the depot at Alton; that Schaff asked the witnesses, Scherer and one McGowan, the foreman, some questions about the new books of rules, hut that he could not swear whether that was a conductor’s examination or not. There was evidence tending to show that the duties of a switch-man or switch foreman are so radically different that experience in one position does not qualify a person to fill the other; that generally before permitting a person to run a train he was compelled to serve as a brakeman and then to submit to an examination on the time-card rules and train orders; that it was necessary to thoroughly learn the rules and that experience as a brakeman was essential to qualify a person to take charge of a train as conductor.

The burden was upon appellee to show by the greater weight of the evidence not only that Cuthbertson was incompetent at the time of the accident but also that prior thereto appellant had actual or implied knowledge of such incompetency. The jury were fully warranted in finding that he was incompetent. His failure to correctly read the train register under the circumstances amounted to palpable and gross negligence. If he failed to appreciate the necessity for the exercise of unusual care and the obvious probable results of a failure to do so, he was beyond question utterly unfit to be entrusted with the duties imposed upon him. We do not agree with counsel that incompetency can only be shown by evidence of frequent occurrences of imprudence, carelessness or incapacity. While a single act or omission does not necessarily establish incompetency as a matter of law, such act or omission may tend so strongly to prove a person to be careless, imprudent and unfitted for a particular position, as to, of itself, warrant the submission of the question of his incompetency to a jury for determination as a matter of fact. The negligence of which Cuthbertson was guilty, was not a mere omission to exercise the hig’hest degree of care and caution and presence of mind, of which experienced, vigilant and competent employes are not infrequently guilty. The avoidance of obstructions of the track over which it became necessary to run his train, through the untimely meeting with other trains or engines, was an ever-present duty and one of the most important imposed upon him, and could only be properly performed by a careful inspection of the train register. The statements of Schaif of his opinion as to the qualifications of Cuthbertson were not admissible in evidence as tending to show his unfitness at the time he was placed in charge of the train in question. If, however, his subsequent incompetency can be said to have been established, such statements were admissible as tending to show notice to appellant of such fact at the time they were made.

While appellant in its relation to the deceased was not bound to guarantee the absolute fitness of Cuthbertson, it was its duty nevertheless, when employing him as a conductor, to exercise a degree of care commensurate with the responsibilities and exigencies of the service required of one filling that position, in order that it might ascertain whether he was sufficiently qualified and competent. If it was not assured, by previous like services, of such fitness, it was its duty to institute affirmative inquiry to that end. Wabash Ry. Co. v. McDaniels, 107 U. S. 454; L. & T. H. R. R. Co. v. Guyton, 115 Ind. 450.

The proof that appellant through Schaff knew that he was incompetent in January, 1905, that he was still incompetent nine months thereafter, in connection with the further evidence tending to show that in the interim he was not compelled to undergo as thorough an examination as those who are to be placed in charge of trains were ordinarily subjected by appellant and other railroad companies, and his unfamiliarity with the rules as shown by his testimony, impels us to the conclusion that the question as to whether by the exercise of ordinary care appellant would have known of the continuing incompetency of Cuthbertson, was proper to be submitted to the jury as an issue of law, and we are not at liberty to disturb the verdict returned in response thereto, unless the same is so clearly unwarranted by the evidence as to indicate that it was the result of manifest error or prejudice. We are unable to so hold.

It is urged that the damages are excessive. The evidence shows that the deceased was thirty-eight years of age, in good health and earning from $125 to $130 per month, and that he left surviving him a .widow and child of the age of seven years. Notwithstanding-the amount awarded is the maximum limit fixed by the statute in cases of this character, these considerations lead us to the conclusion that such sum is not clearly in excess of the damages resulting to his next of kin by reason of his death.

The judgment of the Circuit Court is accordingly affirmed.

Affirmed.


author: Me. Justice Puterbaugh

text:
    Aleta Goodrum et al., Appellees, v. James H. Mitchell et al., Appellants.

      Laches—when bars right to enforce claims. The failure of creditors continuing during a period of twenty years to enforce their claims against the estate of a deceased debtor, not sufficiently explained, bars the right to the enforcement of such claims.
    Partition. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.

      Edward J. Sweeney, for appellants.
    Lemon & Lemon, for appellees.
   Me. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a decree in partition rendered upon a bill filed by appellees against appellants.

The bill insofar as the questions here involved are concerned alleges in substance that John P. Mitchell, late of DeWitt county, died intestate in the year 1874, leaving him surviving Elizabeth Mitchell, his widow, and Lillian Mitchell (now Stock), James H. Mitchell and William G-. Mitchell, his children and only heirs at law; that at the time of his death said John P. Mitchell was seized in fee simple of part of out-block 16 in the city of Clinton, which property was at the time of his death his homestead; that in the year 1901, William G. Mitchell died leaving him surviving his widow, Sarah- Day, and Aleta Goodrum (formerly Mitchell) his daughter and only heir at law; that in November, 1903, Elizabeth Mitchell, widow of the said John P. Mitchell, died leaving the said James H. Mitchell, Lillian Stock and Aleta Goodrum as her only heirs at law, and possessed in fee of certain lots in Ashley’s Addition to the city of Clinton; that the estate of John P. Mitchell had been settled and all of his indebtedness paid; that the defendants, James H. Mitchell and Lillian Stock, claimed that the estate of the said John P. Mitchell deceased was insolvent, and that out of their own funds and in order to prevent a sale of the property in question to pay the debts of said estate, they paid certain judgments against said estate amounting to a large sum of money and would p.1 aim a hen on the property in question to secure the payment to them of the amount of such pretended claims; that the estate of the said John P. Mitchell was not insolvent but on the contrary was of value much more than sufficient to pay the debts of said estate, and that if said defendants had purchased any judgments against the same the collections of such judgments had since been barred by the Statute of Limitations, and that if they pretended to hold any claims of any kind or character against said estate or the complainants or either of them, that such claim or claims did not accrue to said defendants or either of them within five or ten years or sixteen years or twenty years next before the filing of the bill. That the said John P. Mitchell departed this life in the year 1874 and that at the time of his death the property in question in the case was of the value of $3,000 and that at said time he was the equitable owner of a large amount of farm lands the title to which was held by Warner and Moore in trust for the said John P. Mitchell and that about six years after the death of the said John P. Mitchell the said trustees re-conveyed to the said widow and heirs of the said John P. Mitchell, deceased, 240 acres of land in said county of DeWitt of the value of $15,000 and vested them with the title thereto besides paying them several thousand dollars pursuant to said trust, and that the indebtedness of said estate of the said John P. Mitchell amounted to only about the sum of $2,000. The bill then makes James H. Mitchell and wife and Aleta Goodrum and husband parties defendant thereto, and prays that the real estate described in the bill be partitioned between said defendants and the complainants.

The defendants by their answer to said bill allege in substance that John P. Mitchell at his death was insolvent, and that he owned no property excepting the homestead property in out-block 16 which was worth not exceeding $1,500; that after the death of John P. Mitchell and while administration was pending, defendant Lillian Stock paid out of her own funds a large amount of money for judgments which had been rendered against John P. Mitchell’s estate and the said judgments had been assigned to her and had never been paid, and that defendant James H. Mitchell also owned judgments in his own right and as assignee against said estate, which judgments were also unpaid; that the judgments so unpaid were liens against said homestead; that the moneys represented by said payments made by appellants should be paid to the appellants out of the proceeds of the sale of the said homestead; that said judgments should be held to be liens on said homestead; and that appellants, Lillian Stock and James H. Mitchell, should be reimbursed for the moneys paid out by them for said judgments; that several years after the death of John P. Mitchell, deceased, Elizabeth Mitchell, his widow, William G. Mitchell, James H. Mitchell and Lillian Stock, his children, brought suit against John Warner and O. H. Moore in relation to certain lands, and that the suit was compromised, Warner and Moore conveying to Elizabeth Mitchell and her children about 240 acres of land.

It is also alleged in the answer that William G. Mitchell, father of Aleta Goodrum, received-his equitable proportion in said compromise and that the matters and things contained in the bill as to the litigation with Warner and Moore were irrelevant and immaterial; that the said William G. Mitchell, deceased, father of Aleta Goodrum, did not directly or indirectly pay any of the debts or judgments against his father’s estate; but that said judgments were brought by appellants and that appellant James H. Mitchell obtained in his own name and in his own right against his father’s estate judgment for $700 which had not been paid and which is a lien upon said homestead. The cause was referred to the master in chancery whose findings upon the controverted questions were that there was not sufficient assets in the estate of John P. Mitchell, deceased, to pay the judgments rendered against his estate and that the administration of said estate had not been completed; that the premises in out block 16 were worth $1,500 at the time of the rendition of said judgments and that Elizabeth Mitchell, the widow of John P. Mitchell, had homestead and dower in said premises which were not set off to her during her lifetime; that there was due Lillian Stock on account of judgments rendered against John P. Mitchell during his lifetime and since assigned to said Lillian Stock the sum of $1,273.77, and to James H. Mitchell on similar judgments held by him as judgment creditors and as assignee the sum of $2,560.87; that said judgments were obtained, purchased and held by them to protect the estate of James H. Mitchell and those interested therein; that the premises in question were subject to the lien of said judgments. The cause was heard before the chancellor upon exceptions by the complainants to the report of the master and a decree entered sustaining said exceptions so far as said claims of the defendants were concerned, and finding that the judgments held by Lillian Stock and-James H. Mitchell were stale; that said defendants were guilty of laches in the prosecution of their claims based thereon; that the same were barred by the Statute of Limitations and awarded a partition of said premises free from said claims.

It will be unnecessary to consider the question as to the existence or validity of the claims of the defendants for the reason that we are of opinion that even, if valid the same are incapable of enforcement as against the interests of the complainants in the property sought to be partitioned.

It is true, as contended, that if all the assets of the estate of a deceased person have been exhausted in the payment of debts except real estate which is encumbered to its full value by the homestead and dówer of his widow, holders of unsatisfied claims against his estate may wait until such encumbrances have been extinguished or removed before attempting to enforce their claims against said estate, and that under such circumstances the mere lapse of time will not- bar such enforcement. People v. Lanham, 189 Ill. 326; Thomas v. Waters, 122 Ill. App. 435; Tenk v. Lock, 26 Ill. App. 216; Bursen v. Goodspeed, 60 Ill. 277.

It does not appear, however, that such state of facts existed in the present proceeding. It is averred in the bill and admitted by the answer that at the time of the death of John P. Mitchell he was the equitable owner of 240 acres of land, the title to which stood in: John Warner and O. H. Moore in trust. The evidence discloses that several years thereafter a suit was instituted against said Moore and Warner which was compromised by a re-conveyance of said real estate, then worth at least $8,000, to' the widow and heirs of said John P. Mitchell more than twenty years prior to the filing of' the present bill. Notwithstanding such conveyance the equitable title to the said real estate was subject to the payment of the debts of John P. Mitchell, and we perceive no reason why the claims of the defendants, if void, could not have been by appropriate proceedings enforced against the same. The failure of the defendants during a period of over twenty years to thus enforce their alleged claims, is not satisfactorily explained and the delay, we think, amounted to such laches as to bar the relief sought. Wolf v. Ogden, 66 Ill. 224; Hanna v. Palmer, 194 Ill. 41; Brown v. Morgan, 81 Ill. App. 233; Judd v. Ross, 146 Ill. 40; Graham v. Brock, 212 Ill. 579; Bishop v. O’Connor, 69 Ill. 431; Wilcoxon v. Wilcoxon, 230 Ill. 93.

We are of opinion that the decree of the Circuit Court was proper and that the same should be affirmed.

Affirmed.


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    Nelson Morris et al., Appellants, v. Charles H. Williams, Appellee.
    1. General issue—what admitted 6y plea of. The plea of the general issue admits the ownership and control of the building in which the plaintiff was injured; also, that the defendants were partners, doing business under the partnership name charged; also, that such partnership owned and controlled such building.
    2. Practice Act—section & construed. It is not error for the court to deny, leave to file a plea to the jurisdiction where several defendants are joined, some residents of one county and some of another, if it appears that the resident of the county in which the suit is brought was apparently joined in good faith.
    3. Instructions—when do not ignore doctrine of assumed risie. An instruction in an action for personal injuries does not ignore the doctrine of assumed risk even though it concludes with a direction as to a verdict if the declaration negatives the question of assumed risk and the instruction' is predicated upon proof of the allegations of the declaration.
    4. Evidence—when opinions competent. The opinion of an expert may properly be given as to the proper method of doing work and as to the tools and appliances necessary where such matters are not of common knowledge and could not readily have been made intelligible to the jury.
    Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Le Forgee & Vail, for appellant.
    John R. Fitzgerald, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case instituted in the Circuit Court of Macon county by Charles H. Williams against Morris & Company, a corporation; Nelson Morris, Ira Morris and Edward Morris, partners doing business as Nelson Morris & Company; and one Hal W. Pyburn, the local manager of the latter firm. Service was had upon the corporation and Pyburn in Macon county. A summons was issued to Cook county and returned served upon each of the individual members of the partnership.

The declaration, which consists of five counts, avers in substance that the defendants owned a certain building in Decatur, wherein their business was conducted; that the plaintiff was employed by the defendants and about September 7,1908, was engaged in doing certain work as a common laborer in said building under the direction of a certain vice principal by the name of Ferguson; that the building was out of repair, defective and certain timbers of which it was composed rotten, all of which was unknown to plaintiff and known to the defendants; that the vice principal or foreman, Ferguson, was engaged for all of the defendants in making certain repairs upon said building; that in order to make such repairs it became necessary to raise up the second floor in the central part of such building which supported an ice chamber, containing about one hundred tons of ice, and that to raise such floor and the timbers supporting the same, jacks and blocking were used by Ferguson; that while the plaintiff was engaged in working in said building under the directions of said foreman, and in the exercise of due care, by reason of the improper use of such jacks and blocking, and because of the defective construction and rotten condition of such buildings, and the absence of proper safe-guards in the way of cribbing, the jacks buckled and fell, and the second floor, together with the ice,' fell upon the plaintiff and injured him.

To such declaration the corporation and partnership filed a joint plea of not guilty, and Pyburn filed a separate plea to the same effect. The jury returned a verdict finding the corporation and members of the firm of Nelson Morris & Company guilty, and assessed the plaintiff’s damages at $2,500. As to Pyburn a verdict of not guilty was returned. Upon the motion for a new trial the suit was dismissed as to the corporation, leaving standing a verdict of not guilty as to Pyburn. Thereupon- counsel for the partnership asked leave of court to file a special plea averring that Nelson Morris, Ira Morris and Edward Morris were at' the time of the commencement of the action and still were residents of the county of Cook in the State of Illinois; that they were not found or served with process in Macon county, but were found and served in said Cook county. The court refused to permit the plea to be filed, and entered judgment upon the verdict of the jury against the members of the partnership for $2,500. From said judgment this appeal is prayed by Nelson Morris, Ira' Morris and Edward Morris as partners.

The evidence tends to prove the following facts: Nelson Morris & Company, hereinafter designated as the partnership, were engaged in the wholesale meat business and owned a building in Decatur which they had built upon ground leased by them from one Thatcher. The building was twenty-eight feet in width and 150 feet long. The front eighty feet was oc-' cupied by the partnership and the remaining portion was leased by them to Morris & Co., a corporation engaged in the poultry business and hereinafter referred to as the corporation. The first floor- of the •building was divided into cooling rooms, one of which was used by the partnership and the other by the corporation. Immediately above the cooling rooms were ice chambers in which were stored large quantities of ice. Beneath the floor of the ice chamber, immediately over the .cooling room used by the partnership, were joists supported by two beams running from either side and meeting' at the center of the building, and supported by a corbel which was in turn supported by a wooden post resting upon a beam upon the ground laid upon concrete pillars. The weight of the ice' in the chambers had caused such post to sink into the lower beam, the upper floor to sag and the icé chamber to leak, by reason of which' the floor timbers of the cooling room! became rotten. This rendered it necessary to replace the floor, raise the center beams and put in a new post, which work was in progress on the day appellee was injured, and was in charge of one Ferguson, who was superintending the work for the partnership. In order to raise the center beams, cross pieces were laid on the ground floor beam to the height of about three feet and a jack block placed thereon. On the jack block was placed four jack screws and on top of them, posts, the tops of which rested against the corbel.

On the morning of the day he was injured, appellee, who had been working for the corporation, was directed by Laing, his foreman, to go over to the premises of the partnership to work. He thereupon went to work in the cooling room where the repairs in question were being made, and worked until two or three o’clock in the afternoon tearing up the flooring and carrying lumber under the direction of Ferguson. During the day on one or two occasions by order of the defendant Pyburn, who was manager of the partnership, he carried meats in and out of the room. While he was thus engaged and the carpenters were attempting, under the directions of Ferguson, to raise the timbers referred to, by the aid of the jacks, one of the jacks buckled and was thrown against the post supporting the upper floor, causing the entire building to cave in. Appellee was struck by the timbers and ice, receiving the injuries described in the declaration.

The evidence further tends to show that at the time he was injured he was working as a common laborer; that he had never been in the building before and knew nothing of the conditions of the timbers nor of the existence of the ice chamber; that by the exercise of due care he would not have known of the same. There was also evidence tending to show that the joists or stringers of the floor in question had, since March, 1906, at least, been rotten, whereby and by reason of the weight of the ice, the floor was sagging; .that no' repairs had been made since that time; and further that the method adopted for raising the floor was unsafe and that the foreman in charge of the work was negligent in failing to provide proper safe-guards to prevent the floor falling in case the jacks were insufficient to support the same.

There is also evidence tending to show that appellee exercised all the care due from him under the circumstances.

In this state of the proof the court did not err in refusing to direct a verdict for the appellants. Nor are we prepared to say, after a careful perusal and consideration of the evidence, that the verdict of the jury was not warranted, notwithstanding there is some conflict in the evidence upon several of the issues of fact.

• It is urged- that, a variance exists between the declaration and the proof as to the ownership and control of the building in which the plaintiff was injured; that the proof fails to show that the appellants were partners doing business under the name of Nelson Morris & Company, and as such partnership had any control over or ownership of said building. These allegations were matters of inducement and it was not necessary that the plaintiff should offer any proof in support of the same unless they were denied by special plea. Traction Co. v. Jerka, 227 Ill. 95.

It is also insisted that the court erred in denying leave to appellants to file the plea to the jurisdiction of the court setting up that they and each of them were not residents of Macon county at the time of the commencement of the suit, but were in fact non-residents of said county. In L. V. T. Co. v. Post Sugar Co., 228 Ill. 121, the appellant was brought in as a defendant to the suit under section 2 of the Practice Act. It was urged on appeal that the trial court erred in refusing the motion of -appellant for leave to withdraw its plea in bar and plead to the jurisdiction of the court. It was there said, “while a plaintiff will not be permitted to avail himself of the provisions of this statute by making a resident of a county a defendant to a suit for the mere purpose of conferring apparent jurisdiction upon the courts of that county over persons found in other counties, yet where, as here, the resident is made a defendant in good faith and under the reasonable belief that a cause of action exists against him, and the non-resident defendants appear and defend the action under the plain provisions of the statute, the court in which suit is pending has jurisdiction to render judgment against the non-resident defendants, even though the court directs a verdict in favor of the resident defendant. The trial court therefore did not err in the rule upon the motion.”

There is nothing in the present record tending to show that the resident defendants were not made such in good faith and the ruling of the court was proper.

It is urged that the court erred in giving the third instruction offered by plaintiff. The instruction told the jury that it was their duty to find against any defendant or defendants whom they might believe from the evidence was guilty in the manner and form as charged in plaintiff’s declaration or any other count thereof. It is insisted that the instruction being peremptory in form and in effect eliminating the question of assumed risk from the case, was erroneous under the rule laid down in Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243.

We cannot concur in such view. The averments of the declaration clearly negative the assumption of risk by the plaintiff. In each of them it is averred that the plaintiff was acting under the immediate direction of the vice principal of the defendants; that he was ordered to the place and to perform the work in which he was engaged by such vice principal and that he was ignorant of the unsafe condition of such place. Furthermore, the evidence tended to prove such averments and the jury were fully warranted in finding that the same were established. The question of assumed risk was therefore not involved in the case, either under the pleadings or the evidence.

It is further urged that the court erred in permitting one Roberts, an experienced house raiser and mover, to testify that in his opinion another method could have been adopted and followed in raising the floor which would have been absolutely safe, and that judging from the appearance, after the accident, of the block upon which the jacks rested, one of the jacks had buckled and cracked the block, thus causing the entire superstructure to give away and fall.

We think the evidence was competent. The proper method of doing work of the character in question, the tools and appliances necessary and proper to be used, and the placing and operation of the same, were obviously not matters of common knowledge and could not readily have been made intelligible to the court and jury. It was therefore proper to receive the opinions of witnesses skilled in such work. Gundlach v. Schott, 192 Ill. 509; C. & A. Ry. Co. v. Yarber, 137 Ill. App. 486.

The record in the case is free from prejudicial error, and the damages awarded were not excessive. The judgment will be accordingly affirmed.

Affirmed.


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    Martha C. Reynolds, Appellant, v. Albert G. Crawford, Appellee.
    Administration of estates—when executor liable to account. Held, under the evidence in this case, that a particular estate fund was held in the capacity of executor and not in that of agent of the person entitled to the same as her distributive share of such estate.
    Objections to executor’s report. Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded, with directions.
    Opinion filed April 21, 1908.
    T. T. Beach, Williams & Williams and William Mumford, for appellant.

      Ray N. Anderson, Jefferson Orr and Ben H. Matthews, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

In September, 1906, Albert G-. Crawford, appellee, filed in the County Court of Pike county a petition asking to be discharged as the executor of the will of Margaret Dodge, deceased. Appellant, Martha C. Reynolds, by the terms of the said will, became entitled upon settlement of the estate to a special legacy of $1,000, and as residuary legatee the sum of $817.43 as her distributive share of the estate. In his said petition appellee reported that as agent, adviser and attorney of appellant he had “transferred from his hands as executor of said estate with her consent into his hands and collected as her agent, adviser and attorney her legacy and distributive share amounting to the sum of $1,817.” The County Court overruled objections filed by appellant to the report, approved the same and discharged appellee as executor. Appellant then appealed to the Circuit Court, where a like order was entered, to reverse which she again appeals.

The material facts involved, briefly stated, are as follows: Prior to the year 1907 appellant had placed in the hands of appellee, who was her nephew and a practicing lawyer in Pike county, various sums of money, with directions to keep the same loaned out, collect the interest and pay the same to her as she should call for it. In 1897 Margaret Dodge, a sister of appellant, died, leaving a will of which appellee was appointed executor. In October, 1902, he paid to the other legatees their distributive shares of the estate of his testatrix but retained that of appellant, which amounted to $1,817, and is the subject of the present controversy. There is no direct proof that this latter fund was to be retained by appellee under the former or a similar arrangement. Appellee never filed an inventory as the executor of the will of Margaret Dodge nor made report to the County Court of his acts and doings as such. In' 1906 he was duly declared a bankrupt by the United States Court.

Appellee contends that with reference to the Dodge éstate the dual relation of principal and agent and of executor and distributee existed between appellant and himself; that having occupied such dual capacity of executor and agent, after the lapse of a reasonable length of 'time the legal presumption should be indulged that he held money due his principal from the estate in the capacity of agent; and that such agency was established by the long-continued course of dealing between himself and appellant in transactions of a similar nature to that under consideration. Appellant insists that appellee never in fact attempted to transfer in any way the money in question from himself as executor to himself as agent, and that even if he made such an attempt the same was ineffectual.

The only evidence of the alleged transfer- was the testimony of appellee, who testified in substance- that in-October, 1902, being the time he claimed to have distributed the assets of the Dodge estate, he charged himself in his account with appellant with the amount due her in lieu of money and retained notes belonging to said estate. He was unable to describe such notes but stated-.that instead of indorsing them to appellant he attached to them a memorandum upon which her name was written. He further testified that the paper transfer of the account was made upon a pocket ledger which he had since lost; that the notes in question were afterward collected and the proceeds used by him; that he was unable to state whether at the time he was solvent; that subsequent to the year 1902 he had paid to appellant on account of interest on funds held by him for' her over $1,000 but that such payments were not ■made out of any particular fund; that he took no receipts therefor and that at the time of his adjudication as a bankrupt he was indebted to appellant in the sum of about $9,000.

The testimony of appellee as to the manner and details of the alleged transfer is exceedingly indefinite, and to some extent contradictory and unreasonable. He was at the time of mature age and an experienced lawyer of considerable practice. The irregular manner in which the transfer was claimed to have been made, his failure to remember even generally the names of the makers and the amounts of any of the notes he claimed to have transferred to appellant or as to whether he received any cash on account of her share; the loss of his book account, his failure during the years which elapsed from the time the assets of the Dodge estate came into his hands until his attempted final settlement to respond to appellant’s repeated and persistent demands for an accounting or statement as to her interest in the Dodge estate; his failure upon making the alleged transfer to report the fact to her or to the County Court, or to take from her any receipt or instrument evidencing the same, are so inconsistent with the usual business methods and conduct of a skilled lawyer, experienced not only in the practice of law but in general business affairs, tend to create a doubt as to whether the funds of the estate were intact in the hands of appellee in October, 1902, or whether the transfer in the manner and form as claimed was in fact made. But if it be conceded that such transfer was effected in the manner claimed, we are nevertheless of opinion that the same did not operate to discharge the liability of appellee as executor. He admits that on October 8, 1902, he had in his hands as executor the distributive shares in question. The evidence fails to establish a general agency under and by which he had general power or authority to transfer or retain the same. The burden was thus cast upon him to establish his contention that the transfer to himself as agent was made with the consent of appellant either express or implied.

The facts involved in the case of Bell v. People, 94 Ill. 230, relied upon by appellee are radically different from those in the present case. There the delinquent official, Frick, had qualified and was acting as guardian at the time it became his duty to close administration and retain the share of his ward as such guardian. It was not essential that he should settle with or account to his ward as an heir. A memorandum book kept by him was introduced in evidence which showed that after the time the administration of the estate was practically closed he kept in such a book a statement of account with said ward from which it appeared that he had charged himself with the amount due her from the estate. It is there held that it was not indispensable that there should have been an order of the County Court for the transfer of the funds remaining in the hands of Frick as administrator to himself as guardian, but that in such case, after reasonable time had elapsed, it would be presumed that he treated the funds in his hands as belonging to his ward and held the same in the capacity of guardian; that inasmuch as under the circumstances it became the duty of the administrator under the statute to make such transfer to himself as guardian, the principle that what the law enjoins upon the administrator to do shall be considered as done, became applicable, and that the transfer would therefore be held to have been made by operation of law.

In the present proceeding it is manifest that no legal duty was imposed upon appellee by statute or otherwise to transfer the fund in his hands to himself as agent for appellant. No dual official capacities existed. The only duty resting upon him was a compliance with the statute by paying over to appellant her distributive share of the estate or in some proper way accounting to her for the same. The legal presumption invoked is therefore inapplicable. It does not appear from the greater weight of the evidence that appellant at any time either expressly or impliedly agreed or consented that he should retain the fund in controversy as her agent or that she knowingly ratified such retention, nor that her conduct was such as to estop her to deny that such was the fact.

The judgment is accordingly reversed and the cause remanded, with directions to the Circuit Court to require appellee to re-state his account as executor, and to therein charge himself with the sum of $1,817.43, being the amount of the distributive share of appellant in the estate of Margaret Dodge, deceased, together with interest as provided by section 114 of the act entitled “Administration.”

Reversed and remanded with directions.


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    Rial Scott, Defendant in Error, v. F. E. Baker, Plaintiff in Error.

      Gambling—when money loaned to he used in, cannot he recovered. Money loaned to enable the borrower illegally to speculate in grain cannot be recovered even though the lender did not expressly advise, abet or encourage the borrower in the commission of the illegal act; it is sufficient if the lender knew at the time he furnished the money that it was to be used for the purchase of illegal options.
    Assumpsit. Error to the Circuit Court of Greene county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    Mark Myerstein and J. M. Riggs, for plaintiff in error.
    Hanley & Cox and Rainey & Jones, for defendant in error.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a suit in assumpsit by Rial Scott, defendant in error, against F. E. Baker, plaintiff in error. The declaration consists of the common counts only. The defendant pleaded non-assumpsit, the Statute of Limitations, and that the money claimed was knowingly loaned by the plaintiff to the defendant to be used in gambling in grain. With the plea of general issue the defendant filed an affidavit of merits, which, after averring that he verily believed that he had a good and complete defense to the suit upon the merits to the, whole of plaintiff’s demand, averred that the plaintiff verily believed that the alleged cause of action in th,e declaration mentioned, accrued more.than five years prior to the institution of the suit, and that the same was for money loaned and advanced by the plaintiff to the defendant for the express purpose to be used by the defendant as margins on what are known as grain option deals, and that such money was used by the defendant on margins in such gambling option ■ deals. The third plea, omitting the formal parts, reads substantially as follows: “that whatever amount of money, if any, which the plaintiff alleges and claims, in his declaration to be due from the defendant to the. plaintiff, or any sums of money alleged in-said declaration, which it is claimed the defendant obtained from the plaintiff, in any manner whatsoever, if any, were knowingly lent and advanced by the plaintiff to the defendant for the express purpose to be used by the defendant for margins on option deals in grain which the defendant was to buy or sell, without any intention of receiving or delivering such grain so purchased or sold, and which said deals in said grain were then and there intended to be made by the defendant to settle accounts in such margin deals on grain by the payment of the differences, and not by the delivery or receiving of any grain to be so purchased or sold by the defendant; that said amounts were all so used by the defendant with the advice and knowledge of the plaintiff, for the purchase and sales of such grain upon the payment of margins, and such purchases and sales were so made by the defendant with the knowledge and advice of the plaintiff, for the express purpose of dealing in futures or options in the grain market, to be bought or sold according to the fluctuations of the grain market, and to be settled by the differences and not by the delivery or receipt of grain; that all of said option deals, when made, were so made' by the defendant, with the money so claimed by the plaintiff, in his declaration, and were all so made, by. the defendant, with the knowledge and advice of the plaintiff, in violation of law; that the plaintiff, when he so loaned or advanced to the defendant the alleged amounts of money so claimed in the declaration, did so lend and advance the same to the defendant, knowing that the defendant would use all of the same, for the purpose of applying the same, on margins, in such unlawful deals of grain, as aforesaid; that whatever amounts of money the plaintiff did so lend or advance to the defendant were all so used by the defendant for the purpose of margins on option deals in grain, with the knowledge and advice of the plaintiff.”

Issues were joined upon the first and second pleas. To the third plea a general demurrer was interposed and sustained by the court, and the defendant elected to abide by the same. A jury was then waived and the cause tried by the court. The court found the issues in favor of the plaintiff and rendered a judgment for $2,295 against the defendant. To reverse ‘said judgment this writ of error is prosecuted.

While several errors are relied upon for reversal, they all relate to the question as to the sufficiency of the third plea.

Section 130 of the Criminal Code provides that “whoever contracts to have or give to himself or another the option to sell or buy at a future time any grain or other commodity * * * shall be fined =**=*; anc[ ajq contracts made in violation of this section shall be considered gambling contracts and shall be void.” Section 131 provides that “all promises * * * the whole or any part of the consideration whereof, shall he for money *. * * won by gaming * * * or for the reimbursing or paying any money or property knowingly lent or advanced at the time and place of such play or bet to any person or persons so gaming or betting; or that shall, during such play or betting, so play or bet, shall be void and of no effect.” Rev. Stat. 1905, p. 699.

In Cothran v. Ellis, 125 Ill. 496, the court, in construing the foregoing section, says: “It is clear from this section of the statute (section 131) without regard to the common law, there can be no.such thing as a valid wagering contract in this state, and that he who knowingly advances money or other property to either of the contracting parties to be used for such purpose, is equally guilty with the parties to the wager, and no action will lie against the borrower to recover it back.” It is there further held that a deal in “futures” or “options,” to be settled according to the fluctuations of the markets, is void by the common law as contrary to public policy and as a crime against the state.

It is insisted by the defendant in error that the plea should contain an averment that advice or encouragement was given to the borrower by the lender before the loan had been actually made and the money had become the exclusive property of the borrower, or that the terms of the loan made it obligatory upon the defendant to use the money for the purpose for which it was borrowed.

Under the foregoing construction of the statute, we think the facts averred in the plea, if established, present a full and complete defense to the present action without, regard to whether the plaintiff expressly advised, abetted or encouraged the defendant in the commission of the illegal act, and that it is sufficient if the lender knew at the time he furnished the money that it was to be used for the purchase of illegal options.

Such knowledge is expressly averred in the plea in the following language: “that the plaintiff, when he so loaned or advanced to the defendant the alleged amounts of money so claimed in the declaration, did so lend and advance the same to the defendant, knowing that the defendant would use all of the same for the purpose of applying the same on margins in such unlawful option deals of grain as aforesaid.”

In the case of Charleston State Bank v. Edman, 99 Ill. App. 235, relied upon by defendant in error, the losses to pay which the money sued for was borrowed had fully accrued and the illegal option deal in which such losses were sustained, had been closed, prior to the timé the money was loaned by the plaintiff to the defendant, with which to settle the same. Such case is thus distinguishable from that at bar.

We are further of opinion that the nature of the defense as set out in the defendant’s affidavit of merits was sufficiently specific and in substantial compliance with the requirements of section 55 of the Practice Act. Laws of 1907, p. 455.

Because of the error of the court in sustaining the demurrer to the third plea, and in refusing to admit' evidence in support of the same, the judgment must be reversed and the cause remanded.'

Reversed and remanded.


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    Michael J. Cooney, Appellee, v. Chicago-Springfield Coal Company, Appellant.
    Master and servant—when risks are assumed. A servant of sufficient age and experience is chargeable with knowledge of the ordinary conditions under which the business in which he is engaged is conducted and its ordinary risks and hazards, and he will be presumed to have assumed all such risks and hazards which to a person of his experience and understanding are, or ought to be, apparent and obvious.
    Action in case for personal injuries. Appeal from. the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed, with finding of facts.
    Opinion filed April 21, 1908.

      Brown, Wheeler, Brown & Hay, for appellant.
    Albert Salzenstein and T. J. Condon, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion .of the court,

■ This is an action in case brought by appellee against appellant for the recovery of damages for personal injuries alleged to have been received by the plaintiff through the alleged negligence of the defendant. .The declaration,.in substance, charges that defendant operated a coalmine, and that the plaintiff was a shot-firer in its employ/that it was its duty to use reasonable care to furnish the plaintiff a reasonably safe place to work; that it failed to .do so, but permitted him., to work and explode shots on January 7, 1907, in room 17 in one of its entries, where there was insufficient coal support between that room and room 16 adjoin-, ing, to. prevent shots ignited in room 17 blowing through into .room 16; that the defendant knew, or should, in the exercise of its duty# have known of. this, condition and warned the plaintiff; that he was ignorant thereof, and while in the exercise of due care and caution, after igniting shots in room 17 in the performance of his duty, went into room 16, and by reason of said insufficient coal support between the rooms, one of the shots blew through into room 16, causing the injury complained of, etc.

The defendant pleaded the general issue and a trial by jury resulted, in a judgment in favor of the plaintiff for $400, to reverse which the defendant appeals. At the close of all the evidence the court overruled a motion by the defendant to direct a verdict in its favor.

The evidence discloses that at the time appellee was injured rooms 16 and 17 in appellantmine, which were side by side, had been worked southward to a depth of about 100 feet. There was a cross-cut for ventilation connecting the two rooms about forty-five feet from the entry and at a point where the pillar between the rooms was three or four feet thick. From that point, by reason of the passage of a “horseback” through the room it became narrower, ■ being at the place where the “horseback” existed but about fifteen feet wide. After passing the “horseback” it widened until within ten feet from the' face of the-room, at which point it was about twenty-five feet in width; On the day of the accident, the miner, who' had been working in room 17, had bored through the pillar near the face of the rooms to the depth of six feet, with • the intention of making an air-hole through to room 16, and then filled the same with a wooden block. On the day he was injured and for six months prior thereto, appellee had been employed by appellant as' a shot-firer. The evidence adduced in his behalf tended to show that about two o’clock in the afternoon of that day, he and his “buddy,” one Solomon, as was their duty, examined the holes in rooms 16 and 17, and found the same to be properly drilled and safe to' be discharged with powder. They then went to the bottom of the mine and there remained until all the miners had left the mine. At 4':30 o’clock in the afternoon they started to fire the shots that they had examined and at about 7:30 o’clock lighted three shots in room 17. They then waited in the completed cross-cut between rooms 16 and 17 until they heard three shots explode. About two minutes thereafter,' Solomon went across room 16 to the cross-cut between' rooms 15 and 16, while appellee went toward the' face of the room 16 to light the shots to be fired there. When he was about twenty feet from the face, a fourth shot between rooms 16 and 17 explodéd, which on account of insufficient support being left between rooms 16 and 17 to resist thé concussion, blew through thé place where the "air-hole into room 16 had been started, striking the plaintiff and injuring him. They both testified that the mine was dark in rooms 16 and 17; that all the light given was from small miners’ lamps carried on their caps, and that there was nothing to indicate that there was not at least sixteen feet of coal between rooms 16 and 17 at the place where the shots were drilled and fired; that it so appeared to them; that they had received no warning or notice that that apparent condition was not real. Solomon testified further that the next day after Cooney was injured, he measured the depth of the coal between rooms 16 and 17 at the proposed air-hole and found that the wall as it existed when Cooney fired the shot was hut eight feet thick. He also testified that in his opinion the fourth shot was caused by the improper loading of one of the holes.

There was evidence adduced by the appellant which tended to show that when appellee inspected room 17, the miner working there called his attention to the hole in the pillar, told him that it was a “breakthrough ’’ for an air-hole, and warned him to “look out.”

It is insisted that the peremptory instruction offered by appellant should have been given for the reasons that there was no evidence in the record fairly tending to establish the negligence charged in the declaration; that the evidence was conclusive that the risk of injury to appellee was one of those assumed by him by reason of his employment; and that the injury was caused by the negligence of a fellow-servant.

The evidénce fails to show and it is not charged in the declaration that the making of the air-hole was not' necessary nor that the place selected therefor was an improper one for the purpose. Neither is it charged that appellant or its employes were negligent in drilling the other holes in the room or in tamping or loading the same, although there is evidence tending to show such was the case. The evidence does show, however, that by reason of the preparatory drilling, the body of coal left between the two rooms at the point in question was insufficient to prevent the blast of a shot discharged in room 17 from penetrating the pillar into room 16 and that the condition of room 17 was in consequence unsafe and dangerous to a shot-firer unaware of the existence of the hole. Such condition, however, did not result from any breach of duty on the part of appellant, and the hazard was therefore one incident to appellee’s employment, the risk of which he assumed. In such case the duty to warn him did not exist, inasmuch as he was of full' age, possessed of ordinary intelligence and experienced as a miner and shot-firer. Moreover, if it be conceded that the dangerous condition was latent and known to appellant to be so, the duty to warn appellee would only arise in the event that he did not know of the dangerous condition, that the same would not have been obvious to a person of ordinary intelligence and that fie had not equal means of knowledge with appellant. We are of opinion that the greater weight of the evidence fails to establish these propositions. Appellee, as has been said, was an experienced miner and shot-firer and had had eleven years’ experience. It was his duty to inspect holes prepared by miners for shots and to fire them when in his opinion they were properly placed and prepared. He knew when he accepted his employment as shot-firer that his usual duties would require him to handle and work explosives, and fully appreciated the danger of being injured from firing shots, and that he would have to exercise great care to prevent an untimely explosion resulting in injury to himself and others. He also knew the statute required cross-cuts to be made for the purpose of ventilation; that room 17 had been worked through a “horseback” and that an air-hole was necessary; that in good mining a crosscut is-always driven just after going through a “horseback.” Having inspected it before it was charged, he also knew that the hole was at a place from forty-five to fifty feet from the other cross-cut on the same rib. While he testified that he did not know that a cross-cut was being made, we are convinced that from his general experience, and knowledge of the foregoing facts, and the general physical surroundings, his opportunities for knowing the conditions and appreciating the danger attendant upon firing the shot, were equal to those of appellant and that if he had not such knowledge, by the exercise of reasonable care he would have acquired the same.

It is a rule that an employe of sufficient age and experience is chargeable with knowledge of the ordinary conditions under which the biisiness is conductéd and its ordinary risks and hazards, and will be presumed to have assumed all such risks and hazards which to a person of his experience and understanding are,' or ought to be, patent and obvious. C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492.

For the reasons stated the judgment will be reversed with a finding of facts, to be incorporated in the judgment as follows: We find as facts that the risk and hazard of the injuries received by appellee was incident to his employment.

Reversed with finding of facts.


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    Sarah J. Burnett et al., Appellees, v. Rufus M. Potts, Appellant.
    Brokers and factors—when real estate agent not entitled to commissions. A real estate broker who expressly contracts to sell and convey for cash, is not. entitled to his commissions by merely securing a competent person for the purchase of such land.
    Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Shutt, Graham & Graham, for appellant.
    Albert Salzenstein and John L. King, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by appellees against appellant. The declaration consists of the common counts only, to which the general issue was filed. The cause was tried by the court without a jury and resulted in a judgment in favor of appellees for $1,117.95. The facts briefly stated are the following: Appellant and appellees on November 3,1904, entered into a written contract under the terms of which appellant was given the exclusive right to sell a tract of land belonging to. appellees for a period of sixty days from November 1, 1904. The contract further provided that in case of a sale of said premises, appellant was to account to appellees for the sum of $35,000 cash net to them; that he should retain all amounts that he might sell said premises for above that price, as his commission, and should pay all outside agents’ commissions and expenses of every character out of the portion he should receive from the sale of said premises. On December 1,1904, appellant as agent for appellees entered into a contract for the sale of the premises with one Bowman, which contract recited that appellant had that day sold the land to Bowman for the sum of $37,500, to be paid as follows: $1,000 in cash upon the signing of the contract, $5,000 or more at the option of Bowman on or before December 20, 1904, and the balance on March 1, 1905; that appellant as agent should on or before December 20, 1904, furnish to the purchaser an abstract of title, and deposit in escrow with the First National Bank at Taylorville, Illinois, a proper and sufficient warranty deed for said premises; that possession should be delivered March 1, 1905. The contract further recited that it was made subject to the condition that if appellant was unable to get the tenants holding leases upon the property to surrender the same or if Bowman was unable to secure a loan of $24,000 on said premises, the contract should be void. Bowman afterward arranged to borrow the sum specified upon the property, a satisfactory abstract of title was furnished him, and the outstanding leases were procured to be surrendered. On December 14, 1904, pursuant to the contract, appellees deposited a warranty deed for the premises with the Taylorville Bank, together with instructions in writing, prepared by appellant and signed by appellees, which recited that the accompanying deed “was made to carry out the contract executed on December 1, 1904, by Bufus M. Potts, as agent of the Thayer heirs, and Thomas C. Bowman, for the sale of the land therein described; that the consideration for the deed was $38,000; that there was still due the grantors $35,000, to be paid as follows: $25,000 within ten days and the balance, $32,500, between March 1 and 10, 1905; that upon said payments being made the bank was to deliver the deed to Bowman and remit the proceeds to Thayer, and that all other moneys provided by said contract to be paid be collected by the bank and paid to appellant. Bowman refused to perform the contract on his part within the time prescribed and on March 13, 1905, appellees withdrew their deed from escrow. Appellant then insisted that appellees should bring suit to compel him to perform. They declined to do so and instituted the present suit to recover the sum of $1,000 paid by Bowman to appellant upon said contract.

It is contended by appellant that inasmuch as he had performed his part of the contract between him and appellees by securing a valid and binding agreement with a competent person for the purchase of the land, he thereby earned his commissions and was entitled to retain the $1,000 in controversy on account thereof. We are unable tó concur in such view. By the express terms of the contract he was to sell the premises and account to appellees for the sum of $35,000 in cash. His agreement was not merely to find a purchaser and procure him to enter into a valid and binding contract to purchase the land, but before he became entitled to any compensation, it was essential that he should have sold the property for cash for a sum in excess of $35,000, that such sale be fully consummated and the proceeds to the extent of $35,000 accounted for by appellant to appellees. Appellant would then, and not before, be entitled to compensation for his services as provided by the terms of the contract. The terms of the contract are clear and certain. Under the facts, which are practically undisputed, there is no possible theory under which appellant could recover for services rendered on the quantum meruit, or for expenses incurred. The sum of $1,000 paid by Bowman in accordance with the terms of the contract, was had and received by appellant as the agent of appellees and for their use, and was recoverable under the pleadings.

The judgment of the Circuit Court will be affirmed.

Affirmed.