author: Mr. Justice Carnes

text:
    Peter Zukas, Appellee, v. Appleton Manufacturing Company, Appellant.
    Gen. No. 6,140.
    (Not to be reported in full.)
    Appeal and ebbob, § 369

      —when party trying case on erroneous theory may not complain. Where, in an action at common law for injuries to an employee which were within the scope of the Workmen’s Compensation Act of 1913 [Cal. Ill. St. Supp. 1916, If 5475 (1) et seq.1, the plaintiff in his declaration made no reference to such act and the defendant pleaded the general issue, and no reference was made to the act in the trial of the case except when the defendant’s objection to the plaintiff’s offered proof that the defendant had elected not to pay compensation under the act was sustained, and the common-law defenses were presented and passed upon and the case tried throughout on the theory of a common-law action with the acquiescence of both parties, the defendant’s assignment of error that, there being no allegation or proof that the parties were not operating under the act, the trial court was without jurisdiction, held without merit.
    Appeal from the Circuit Court of Kane county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 19, 1916.
    Thomas C. Angerstein, for appellant; Adrian F. Sherman, of counsel.
    Schuyler F. Lynn, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

October 20,1913, appellee, Peter Zukas, a minor, was employed by appellant, Appleton Manufacturing Company, in its foundry at Batavia, Illinois, and in the course of such employment was .injured because of an explosion caused by dumping the cupola. The business was clearly within the provisions of the Workmen’s Compensation Act of 1913 [Cal. Ill. St. Supp. 1916, 5475 (1) et seq.] and under section 2 of that Act appellant is presumed to have elected to provide and pay compensation according to its provisions.- Section 6 abolishes all common-law or statutory right to recover damages for injuries sustained by an employee covered by the act other than the compensation therein provided. The employer is given the privilege of rejecting the provisions of the act, and if he exercises that right, the employee has no option. If the employer accepts the provisions of the act then the employee has the right to reject its provisions. If the employer rejects the provisions, a common-law action for damages may be brought and tried with certain defenses theretofore existing denied him. If the employer accepts and the employee rejects the provisions, then a common-law action may be brought subject to common-law defenses. In the absence of any showing to the contrary, the presumption is that the parties are operating under the provisions of the act. In this respect the Statute of 1913 does not materially differ from the previous Act of 1911. If the parties were not operating under the act the common-law action could only be maintained by the plaintiff’s averring and proving that fact. Dietz v. Big Muddy Coal & Iron Co., 263 Ill. 480 [5 N. C. C. A. 419]; Krisman v. Johnston City & Big Muddy Coal & Mining Co., 190 Ill. App. 612; Synkhus v. Big Muddy Coal & Iron Co., 190 Ill. App. 602; Fauro v. Superior Coal Co., 188 Ill. App. 203. June 12,1914, Zukas, by his next friend, began this common-law suit to recover for that injury, and filed a declaration in case entirely ignoring the existence of the Compensation Act. Appellant pleaded the general issue. There was a jury trial with verdict and judgment of $2,500 for the plaintiff. No reference was made to the act on the trial except the plaintiff offered to prove that the defendant had elected, as provided in section 2, not to pay compensation under the provisions of the act, which proof was objected to by the defendant and the objection sustained on the ground that there was no foundation for it in the pleadings. The common-law defenses of assumed risk and contributory negligence were presented by the defendant and passed upon. Instructions were asked and given thereon, although if it were true that appellant had rejected the provisions of the act, these questions were excluded by section 3. The court was asked by the defendant at the close of plaintiff’s evidence to direct a verdict; and again at the close of all the evidence, and reasons in writing assigned therefor, with no reference directly or indirectly to the defense that the common-law right of recovery was abolished by statute. Points in writing were filed in support of defendant’s motion for a new trial with no reference to that defense. In short, the defendant not only acquiesced in the plaintiff’s theory that the Compensation Act could be utterly ignored, but actively aided in establishing that theory on the trial of the case. It, however, assigns here as error that “there being no allegation or proof that plaintiff and defendant were not operating under the Workmen’s Compensation Act of Illinois, the court was without jurisdiction, and the court erred in assuming jurisdiction. ’ ’ Appellee answers that appellant should not now, on appeal, be permitted to raise that question. This is the controlling question presented by the record here. It is not much argued by counsel. At first blush it seems absurd that a plaintiff could be permitted to hold a judgment on a right of action that has been expressly abolished by statute before the time of the grievance complained of; but the general rule, subject to few exceptions, is that questions of whatever nature not raised and properly preserved for review in the trial court will not be noticed on appeal. 3 Corpus Juris 689. The subject is exhaustively treated in that work under the head of “Presentation and Reservation in Lower Court of Grounds of Review. ’ ’ The main

exception to the rule is want of jurisdiction. Id. 752. It was held in City of Mattoon v. Noyes, 218 Ill. 594, 597, that a defense not made in the court below will not be considered on appeal, citing earlier authorities. This rule is recognized in City of Chicago v. Duffy, 179 Ill. 447, 456, and in People v. Hanson, 150 Ill. 122, 127. In Illinois Cent. R. Co. v. Heisner, 192 Ill. 571, 573, the litigants proceeded in the trial of the cause upon the theory that it was controlled by a question of fact, and the court said: “Under a familiar rule, the attitude of the parties remains the same in this as in the trial court, and the controversy between them is to be determined on the theory which they adopted and proceeded upon in the trial court,” and the court proceeded to determine the cause upon that theory, expressly refusing to render any opinion whether the theory was correct or not. In Grubb v. Milan, 249 Ill. 456, 463, the case was tried on inconsistent theories, sometimes as an action in assumpsit, and at others as an action on the case for fraud and deceit. The defendant did not object and it was held that he could not, on appeal, complain. In Davis v. Illinois Collieries Co., 232 Ill. 284, 291, it was said: “A party cannot, in a reviewing tribunal, succeed upon a theory of the law inconsistent with that upon which he tried his cause in the nisi prius court.” This same rule is recognized in City of Chicago v. University of Chicago, 228 Ill. 605. In Oliver v. Oliver, 179 Ill. 9, 14, it was held that a party could not complain of an erroneous decree “as it was an error that he asked the court to commit, ’ ’ citing earlier Illinois authorities. In Mueller v. Rosen, 179 Ill. 130, the defendant was not permitted to interpose a clause in a contract prohibiting recovery except on a condition precedent, because he did not present that defense below. In Winnard v. Clinton, 233 Ill. 320, the defendant was denied the right to change his position on appeal, as also in Jones v. Knights of Honor, 236 Ill. 113, and N. K. Fairbank Co. v. Nicolai, 167 Ill. 242. In the latter ease the court said the defendant “cannot now be permitted to abandon the theory to which it assented on the trial and substitute another.” In Cleveland, C., C. & St. L. Ry. Co. v. Stephens, 74 Ill. App. 586, 594, the court said: “Both parties elected to pursue the same method of proofs; and as to measure of damages, both parties asked and received the same character of instructions. Appellant did not ask the court to give the rule now contended for, the case was not tried upon that theory, nor was any request made to the court to have it tried. The question was in no manner raised in the Circuit Court.” The general principles applicable are stated as follows in Corpus Juris. A defendant cannot urge a defense in the Appellate Court inconsistent with the defense or defenses he relied upon in the court below. 3 Corpus Juris 698. An objection to the validity of a contract or instrument in suit cannot be urged for the first time in the Appellate Court. Id. 700. A party cannot raise the objection that a contract ordered was erroneously construed, or that the court found erroneously as to its existence or terms, where no such question was raised by the pleadings, or otherwise, in the lower court. Id. 703. That notice of an injury was not given to a city or other municipality before bringing suit, or that a notice was insufficient, that there was no tender or an insufficient tender, or that plaintiff has otherwise failed to comply with or perform a condition precedent to his right to maintain the action, cannot be raised for the first time on appeal. Id. 706. Objection that plaintiff could not recover for extra work under the contract in suit because of the provision in the suit for arbitration in relation thereto, cannot be raised for the first time on appeal. Id. 707. Where a party contends in the trial court that a particular section of the statute of limitations is applicable, he cannot, on appeal, shift his position and urge that a different section applies. Id, 710. The constitutionality of a statute cannot be first questioned on appeal when it depends upon questions of fact as well as of law. Id. 711. A party cannot, on appeal, assume an attitude inconsistent with that taken by him on the trial. Parties are restricted to the theory on which the cause was prosecuted or defended in the court below. Id. 718. This rule applies to both prosecution and defense. Id. 720. A party is bound in the Appellate Court as to the nature and form of the action or proceeding by the theory on which the pleadings were construed and the action of proceeding was tried in the court below. Id. 723. Where an action or proceeding is treated in the trial court as having been brought under a particular statute, that theory will be adhered to on appeal. And where an action is tried as based on a statute, it will not be treated on appeal as an action at common law. Id. 725. Even on the question of jurisdiction where a court has general jurisdiction of a class of cases, an objection that because of irregularities or other special circumstances it had no jurisdiction of the particular case belonging to that class, or that it had no jurisdiction to render the particular judgment, must generally have been made in the court below. Id. 753.

The trial court had jurisdiction of the parties and of a common-law action on the case to recover damages for personal injury. Under the pleadings and the evidence there could properly be no recovery in this case had the defense here first suggested been made in the trial court. Where a defense is denied by a reviewing court because not presented in the court below, the plaintiff is permitted to recover" where he perhaps, or certainly, was not entitled to recover had the defense been there made. We conclude that appellant cannot be heard now to complain that the case was tried under the wrong theory of the law. On an examination of the record we are of the opinion that had there been no question of the Employers’ Liability Act involved, no substantial error was committed in the trial of the case. For the reasons above stated the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Niehaus

license: Public Domain

text:
    George Kopf, Appellee, v. Amos Yordy, Appellant.
    Gen. No. 6,090.
    1. Bills and notes, § 165

      —what nature of liability of indorser. In an action by the payee against an indorser of a promissory note, it is not a prerequisite to recovery that the plaintiff shall have first proceeded against the makers thereof.
    2. Pleading, § 108*—when special plea insufficient. A demurrer to a special plea presenting matters which were already at issue under the general issue, held properly sustained.
    3. Pleading, § 108*—when special plea demurrable as presenting questions covered by general issue. In an action against an indorser on a promissory note, a plea alleging that the plaintiff did not present the note to the makers for payment on the day it became due and gave no notice of its nonpayment or dishonor to the defendant, and made no demand for payment on the defendant on the day it became due, nor for a long time thereafter, etc., held bad on demurrer, in that it presented matters already at issue under the general issue.
    4. Bills-and notes, § 185*—when delay in recording trust deed securing note is defense available to indorser. In an action on a promissory note against an indorser whq indorsed it at the time of its delivery to the plaintiff at his request, and which was secured by a trust deed delivered therewith to the plaintiff, held that the delay of the plaintiff to record such deed until after a prior lien had been secured on the property by the recording of another trust deed thereon would have been a defense, if properly pleaded, to the extent of the injury suffered By the defendant by reason of such delay.
    5. Pleading, § 102*—when special plea presenting partial defense demurrable. A special plea whiph purports to present a defense to the whole of the plaintiff’s demand but which, in .fact, amounts to only a partial defense is bad on demurrer.
    6. Bills and notes, § 165*—when signer liable as indorser. One who indorsed a note at the request of another to induce him to accept it, held liable as an indorser.
    7. Pleading, § 409

      —when parol evidence inadmissible under general issue. In an action against an indorser of a promissory note where the only issue presented was the general issue, parol evidence of what occurred at the time of the indorsement held inadmissible.
    Appeal from the Circuit Court of Stephenson county; the Hon. Richaed S. Fabband, Judge, presiding. Heard in this court at the April term 1915.
    Reversed and remanded.
    Opinion filed April 19, 1916.
    William N. Cronkrite and Eobert A. Hunter, for appellant.
    E. E. Tiffany, for appellee.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

In this case an appeal was taken from a judgment rendered in the Circuit Court of Stephenson county in the sum of $1,605 and costs of suit against the appellant, Amos Yordy, as indorser of a promissory note. The suit was brought in assumpsit by the appellee, George Kopf, against the appellant as indorser, and Eobert E. Prall and Vina W. Prall as makers of the note. The note was for the principal sum of $1,500, payable to the order of the makers, dated October 12, 1912, and indorsed by them and by the appellant, Amos Yordy, before its delivery to appellee. It was secured by a trust deed made to Ed. Eedington, trustee, of even date with the note, on a lot in the City of Freeport, and recites that fact on its face.

The appellant, Amos Yordy, and the appellee, George Kopf, both reside in the Village of Shannon, in Carroll county, where appellant was engaged in the real estate and loan business. Appellant negotiated this loan from appellee for Eobert E. Prall and his wife, Vina Prall, who were about to build a house upon the lot described in the trust deed, and wanted to use the money loaned for that purpose. Pursuant to this negotiation, appellant, appellee and Bobert B. Prall and wife, met at the office of Taylor & Frick, in Free-port, where the note and trust deed were drawn up and signed by the parties. At the time of the negotiation of the note, appellee insisted that appellant should also indorse the note before he would take the loan; and this was done, appellant indorsing his name on the note under the indorsement of the makers prior to its delivery to appellee.

The money loaned was paid over to the makers of the note in sums of $500 on three successive dates, the final payment being made on January . 25, 1913. The trust deed, which was executed by the makers of the note and given to secure the payment of the loan, was delivered to appellee, and at the time of its execution and delivery to appellee was a first lien upon the lot described therein, which, with the house that had been constructed thereon, had a market value of about $2,600. The appellee did not record the trust deed, which had been delivered to him, and which he admits was in his possession January 25, 1913, until December 9,1913. In the meantime, another mortgage made by Bobert B. Prall and his wife to John Schiller on the 27th day of October, 1913, for the sum of $1,800 was recorded, and thereby became a lien prior to the lien of the trust deed held by appellee.

The original declaration filed was found insufficient on demurrer, and an amended declaration was filed containing four counts, the first count charging appellant with liability on said note as indorser, the second count charging him with liability as accommodation indorser, the third count charging him with liability as guarantor of the note, the fourth count also, in effect, charging appellee with liability as indorser. A demurrer was filed to the amended declaration and sustained by the court; thereupon appellee elected to stand by the second, third and fourth counts of his amended declaration, but took leave to amend the first count, and he amended this count by inserting an allegation to the effect that the note in question was presented to the appellant for payment on the 13th day of October, 1913, and that he notified appellant on the same day that the note had been presented to the makers, Robert R. Prall and Vina, his wife, for payment, and that they had refused to pay the same. Appellant demurred to this amended first count of the amended declaration, but the demurrer was overruled. The appellant then pleaded the general issue and three special pleas. A demurrer was filed by appellee to all the pleas and the court sustained the demurred to all the special pleas and overruled it as to the first plea, which was the general issue, and error is assigned because the court sustained the demurrer to the special pleas.

The second special plea averred that the appellee did not proceed against the makers of the note with due diligence, in the ordinary course of the law to recover a judgment, and by execution to collect the amount due on said note from the makers, and that thereby he forfeited Ms right to exact payment of the amount due on said note from appellant. It was not a prerequisite that appellee should have first proceeded against the makers, as set forth in the plea. Section 84 of the Negotiable Instruments Act (J. & A. 7724) provides that “When the instrument is dishonored by non-payment, an immediate right of recourse to. all parties secondarily liable thereon accrues to the holder.” The demurrer was, therefore, properly sustained to this plea.

The third special plea alleged, as a defense, that the appellee did not present said note to the makers for payment on the day the note became due, and gave no notice of its nonpayment, or dishonor, to the appellee in writing or orally, on the day it became due, or the day after, nor for a long time thereafter, and that no demand for payment was made on the appellant on said day the note became due, or the day after, nor for a long time thereafter, and that the appellee thereby forfeited his right to demand from appellant the amount of the note. This plea presented for issue matters which were already at issue under the general issue, and the demurrer was therefore properly sustained to this plea.

The first special plea is as follows: “And for the further plea in this behalf, this defendant says, that the plaintiff ought not to have his aforesaid action against him, this defendant, because he says that at the time of the execution of the note sued upon herein, to-wit: On October 12, 1912, the said plaintiff received from the said Bobert B. Prall and Vina W. Prall, a trust deed to certain real estate, situated in the City of Freeport, and County of Stephenson, and described as follows, to-wit: Lot Seven (7) of Prall’s Sub-division of Lot Ten (10) in Block One (1) of Coates’ Addition to the City of Freeport, except the North one hundred fifty (150) feet of said Lot Ten (10); that said trust deed was given to secure the note sued upon herein ; that the said real estate so described is, at the reasonable value of $2600.00 a sum much in excess of the amount of the note so sued upon, to-wit: The sum of $1500.00; that the said George Kopf, plaintiff herein, neglected and refused to place the said trust deed of record in the office of the Circuit Clerk of the County of Stephenson and State of Illinois, until the ninth day of December, 1914; that before the said plaintiff placed the said trust deed of record the said Bobert B. Prall and wife conveyed the said property to John Schiller by mortgage, in the sum of $1800.00; that the said John Schiller placed the same mortgage of record in the said Becorder’s office of Stephenson County, Illinois, on the 27th day of October, 1913, thereby making it a prior lien to the lien of the trust deed given by the said Robert R. Prall and Vina W. Prall, to secure the note sued on herein; that through the negligence and refusal of the said plaintiff to so place the trust deed of record he lost the security for the said note, except in so far as the same may be a second lien upon the above described real estate; that the security of the said trust deed on the said real estate is ample to secure the whole sum of the said note, and had said trust deed been placed on record in said county, as aforesaid, the said plaintiff could, have recovered the full sum of the said note from the security given him by said trust deed upon said real estate; and so the defendant says that by reason of the negligence and refusal of the said plaintiff to place the said trust deed of record, and thereby secure his lien upon the said real estate, the said plaintiff ought not to have his aforesaid action against him, and this the defendant is ready to verify; wherefore he prays judgment if the said plaintiff ought to have his aforesaid action against him, etc.”

This plea contains competent matters of defense. The appellant, when he placed his signature upon the note, incurred the legal obligation of an indorser, and the assumption of this obligation put him in the actual position of surety for the payment of the debt represented by the note; and it is clear that he assumed this obligation on the strength of the assured fact of the trust deed security, which would practically indemnify him against suffering any loss by affixing his signature to the note. He had a right to rely on the benefit of this security, in signing the note, and upon the legal right with which he would become vested if compelled to pay the debt, namely, to become subrogated to the rights of appellee to the security and thus to utilize it in making himself whole. The security embodied in the trust deed was therefore held by appellee not only for his own benefit, but also for the benefit of appellant, and if appellee, by his laches, has deprived the appellant.of the benefit of this security, it is clear that appellant was injured thereby and would have the right to plead the injury suffered, and resulting from such laches or negligence, in defense, against a recovery by appellee on the note to the extent of the injury suffered. This is an equitable principle which has received repeated recognition and is generally enforced in courts of law.. (Heaton v. Hulbert, 4 Ill. [3 Scam.] 491; Hall v. Hoxsey, 84 Ill. 619; Kirkpatrick v. Howk, 80 Ill. 126; Rogers v. Trustees of Schools, 46 Ill. 431; Phares v. Barbour, 49 Ill. 375.)

The matters of defense, however, set up in the plea show only a partial loss of security because of the alleged laches of the appellee, and therefore amount only to a partial defense to the action; but the plea professes to answer the whole of the declaration, and purports to present a defense to the whole of appellee’s demand. Pleas of this character-are obnoxious to general demurrer. Dickerson v. Hendryx, 88 Ill. 66; People v. McCormack, 68 Ill. 226; City of Marshall v. Cleveland, C., C. & St. L. R. Co., 80 Ill. App. 531; Morehead & Yeazel, 10 Ill. App. 263. A demurrer was therefore properly sustained to this plea.

It is insisted by appellant that the Negotiable Instruments Act fixes the nature of the contract and liability of the appellant which resulted from the signing of his name on the back of the note in question, and therefore that the court erred in admitting evidence of what took place at the time appellant affixed his signature. It is true that evidence of contemporaneous verbal declarations and conversations cannot properly be admitted for the purpose of changing or varying a liability which the law attaches to a writing or contract. This was held in Johnson v. Glover, infra, where it was sought to hold the payee, who had indorsed a promissory note, to the liability of guarantor, because he had indorsed the note twice, and it was contended that the latter indorsement was made by him as a guarantor. The court, in passing on the question raised, says: “Evidence was offered on the trial, and admitted over appellant’s objections, that appellant, at the time he sold the note to Carton, agreed to guaranty it, a,nd, for that purpose, wrote his name across the back of the note twice. * * * The general rule is, that the name of the payee appearing on the back of the instrument is evidence that he is an indorser, and proves that he assumed the liability of an indorser, as fully as if the agreement were written out in words. (Mason v. Burton, 54 Ill. 349; Beattie v. Browne, 64 id. 360; Courtney et al. v. Hogan, 93 id. 101.) Parol evidence is no more admissible to contradict or vary this contract than any other written contract. * * * But it is inadmissible to show that the parties intended a different contract than that implied by the law from their acts.” (Johnson v. Glover, 121 Ill. 283.) To the same effect is Hately v. Pike, 162 Ill. 241, where the court again holds that as the contract and liability which arose from the act of indorsing a note, by a payee, was fixed by law as that of an indorser, parol evidence could not properly be admitted to change or vary such liability, and it finally disposes of the question in these words: “Parol evidence was improperly admitted to contradict appellee’s contract as indorser and to show that he made a contract as guarantor; and the instructions which authorized the jury to find from such evidence, whether or not appellee put his signature upon the back of the note for the purpose of guaranteeing its payment, were improperly given.”

In Cozzens v. Chicago Hydraulic-Press Brick Co., 166 Ill. 213, the court again emphasized that where the legal liability arising from the placing of a signature on the back of a note is that of an indorser, parol evidence is inadmissible to change such, liability into that of a guarantor. In this case the appellant by putting his signature on the back of the note in question legally incurred the liability of indorser. (Section 63, art. V, ch. 98, Revised Statutes, J. & A. ft 7702.) Appellant’s liability, aside from the statute, under the circumstances presented by the evidence, would have been that of an indorser. (Bogue v. Melick, 25 Ill. 91; Finley v. Green, 85 Ill. 536; Blatchford v. Milliken, 35 Ill. 439; Chicago Trust & Savings Bank v. Nordgren, 157 Ill. 667; Milligan v. Holbrook, 168 Ill. 343.)

While oral evidence cannot properly be admitted to change or vary the terms of a writing, or a legal liability, such evidence is often competent, in connection with the execution of written instruments. It is competent, for example, to show by oral evidence the execution of a written instrument. (Morton v. Murray, 176 Ill. 63.) And oral evidence of what took place at the time of the signing of a written instrument may sometimes be a part of the res gestee. (Paul v. Berry, 78 Ill. 161; Bushnell v. Wood, 85 Ill. 88.) And such evidence is admissible for the purpose of establishing a trust, in connection with a written instrument, or showing the circumstances under which an indorsement was made, or to prove fraud. (Johnson v. Glover, supra.)

In this case, where the only issue presented for trial was the general issue, oral evidence was not competent, and it was error to admit it. The judgment must therefore be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Dbbell

text:
    Edward B. Kreis, Appellant, v. County of Rock Island et al., Appellees.
    Gen. No. 6,168.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 26, 1916.
    Statement of the Case.
    Bill in equity filed by Edward B. Kreis, complainant, against the County of Bock Island and others, defendants, to enjoin the county from building a jail. From a decree dismissing the bill, complainant appeals.
    Edward B. Kreis, a citizen, real estate owner and taxpayer of the City of Bock Island, filed a bill in equity against the County of Bock Island, its supervisors and its jail building committee, to enjoin the county from building a new jail on the west side of the public square, and gave notice to defendants of an application for a temporary injunction. Defendants appeared and filed affidavits denying many of the allegations of the bill. Complainant moved for a rule on defendants to plead, answer or demur before the motion for an injunction was heard, and also moved to strike the affidavits filed by defendants from the files. Each motion was denied, the court heard the motion for an injunction upon the bill and affidavits and denied the motion and dismissed the bill. The affidavits and exhibits thereto were preserved by a certificate of evidence.
    The bill charged that the County of Bock Island was indebted beyond the constitutional limit and that the cost of the new jail and other matters intended to be built in connection therewith would be so great that, even with the avails of the bond issue which the people had voted, still the indebtedness to be created by said work would be beyond the constitutional authority of the county to create.
    Abstract of the Decision.
    1. Injunction—when denial of motions erroneous. On an application for a temporary injunction where the defendants appeared and filed affidavits denying allegations of the bill, and the complainant moved for a rule on defendants to plead, answer or demur before the motion for the injunction was heard, and to strike the affidavits from the files, held denial of such motion was error.
    2. Injunction—when dismissal of hill on denial of temporary injunction improper. On denial of a temporary injunction, the court should not dismiss the bill before any pleading by the defendants, unless it appears from the bill that it cannot be so amended as to state a case in equity.
    3. Injunction, § 191

      —when hill for sufficient. Allegations in a bill to enjoin a county from building a jail,- stating the building thereof would raise the county’s indebtedness beyond the constitutional limit, held sufficient unless questioned by demurrer.
    J. T. & S. R. Kenworthy and James F. Murphy, for appellant.
    Floyd E. Thompson and Searle & Marshall, for appellees. -

      See JhinoiB Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same tonic and section number.

   Mr. Presiding Justice Dbbell

delivered the opinion of the court.


text:
    Oscar Larson, Appellee, v. R. C. Judd, Appellant.
    Gen. No. 6,172.
    1. Fraudulent conveyances, § 15

      —what are goods and chattels within Bulk Sales Act. Cattle, horses and tools used by a dairyman selling milk at retail are 'goods and chattels within the meaning of the Bulk Sales Act [Cal. Ill. St Supp. 1916, 1 10021(1) et seq.].

    2. Fraudulent conveyances, § 15*—what does not constitute sale of major part of goods and chattels. A sale by a dairyman of horses, wagons, harness, etc., held not a sale of the major part of his goods and chattels within the meaning of the Bulk Sales Act [Cal. Ill. St. Supp. 1916, H 10021(1) et seq.]

    3. Fraudulent conveyances, § 15*—when sale of chattels not in violation of Bulk Sales Act. After a sale of the major part of a vendor’s goods and chattels in violation of the Bulk Sales Act [Cal. Ill. St. Supp. 1916, U 10021(1) et seq.], a sale of the major part of the remainder is not in violation of such act.
    4. Fraudulent conveyances, $ 15*—when sale of chattels not within Bulk Sales Act. Where a dairyman sold all his cattle, which were the major part of his goods and chattels, held that his business therewith terminated so that a sale of part of the remainder was not within the Bulk Sales Act [Cal. Ill. St. Supp. 1916, V 10021(1) et seq.].

    Appeal from the County Court of Kane county; the Hon. S. N. Hoover, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 26, 1916.
    Russell & McNerny and Harry G. Hempstead, for appellant.
    James F. Galvin and Charles H. Darling, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

On March 3,1915, R. C. Judd, the appellant, obtained a judgment by confession against one Robert Larson and caused an execution issued thereon to be levied on horses before that time sold and delivered by. the execution debtor to the appellee, Oscar Larson (not a relative of the vendor). There was a trial of right of property under the provisions of chapter 140a of our Revised Statutes (J. & A. ft 6814 et seq.) and a judgment in favor of the purchaser.

The vendor, Oscar Larson, had been engaged in the dairy business on a rented farm near Geneva, Illinois, selling milk at retail. His lease expired March 1,1915. Prior to that date his property used in said business consisted of cattle, horses and farm implements. For the better understanding of the question presented here we divide it into three groups: (a) Twenty-one head of cattle, the major part of his property; (b) five horses, two wagons, two sets of double harness, one single harness, and a corn planter, worth $650; (c) sundry small articles, including household furniture worth $250. February 28th he sold the major part of his property (the cattle) to one Aiken, and delivered them on that or the succeeding day. On March 2nd he sold the articles enumerated in group “b” to the appellee for $650. The controlling question here is whether this sale to appellee was in violation of what is known as our Bulk Sales Act of 1913 (Hurd’s St., ch. 38a, p. 906, Cal. Ill. St. Supp. 1916, 10021(1) et seq.), which provides: “That the sale, transfer, or assignment in bulk of the major part or the whole of a stock of merchandise, or merchandise and fixtures, or other goods and chattels of the vendor’s business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the vendor’s business shall be fraudulent and void as against the creditors of the said vendor,” unless the provisions of that statute are complied with. There was no attempt here to comply with those provisions, therefore the question is whether the sale of item “b” of the property to appellee was a sale of the major part or the whole of the goods and chattels of the vendor’s business. We have no doubt that the act covered the business. The former. Act of 1905 was held unconstitutional by the Supreme Court in Charles J. Off & Co. v. Morehead, 235 Ill. 40, because the property included in the act was only “stock of merchandise” which made it special protective legislation. The present act was held good in G. S. Johnson Co. v. Beloosky, 263 Ill. 363, and there said to apply to the “sale of any goods and chattels in bulk, otherwise than in the ordinary course of trade in the regular and usual prosecution of business.” The Appellate Court of the First District in Heslop v. Golden, 189 Ill. App. 388, held that the present act does not cover the desks, chairs, filing cases, rugs, and other articles of office furniture owned and used by a man conducting an employment agency, because the vendor had no connection with or semblance to a mercantile establishment, and that the words in the act “other goods and chattels of the vendor’s business” meant goods and chattels used in connection with the business of selling merchandise, commodities and other wares. The same court held in H. S. Richardson Coal Co. v. Cermak, 190 Ill. App. 106, that the act did not apply to the sale of a team of horses, including harness and wagon, which the vendor had been personally using to haul coal for others at a compensation of so much per ton, and said: “The act did not contemplate that one called on to render personal services cannot sell the chattels, goods or things that are appurtenant thereto unless the conditions imposed by said act are complied with. Otherwise a lawyer could not sell his library, a surgeon his instruments, a broker his office furniture, or a carpenter his tools, without compliance with such conditions.” This construction of the statute is consistent with our conclusion that the cattle, horses and tools used by the vendor in his business were goods and chattels used in connection with his business of selling merchandise, commodities or other wares (milk) and therefore within the provisions of the act. The goods and chattels of Bobert Larson’s business were the property first mentioned (Items “ a, ” ‘b ” and “c”), excluding household furniture and perhaps other items in group “c.” The major part of . those goods and chattels (the cattle) were sold to Aiken before the purchase by appellee of the horses and other items in group “b,” therefore appellee did not buy the major part of the goods and chattels. There is no ground for connecting appellee in any way with the vendor’s sale to Aiken of the major part of his property, therefore we are not called upon to say what might be the effect of the purchase by different vendees acting in concert of the whole or major part of such goods and chattels, no one vendee buying the major part thereof. If appellee had purchased the goods in item “c” before the sale to Aiken of the major part of the property, he would not have been within the prohibition of the statute because he would not have purchased the major part of the goods and chattels, and his purchase could not have been invalidated by some subsequent action of his vendor and some third person with which he had no connection.

We do not think the vendor’s property left after the sale of the cows can be regarded as the goods and chattels of his business within the meaning of the statute, in determining what was the major part of his property that appellee was prohibited from buying except under the conditions imposed by the statute. But even if that view were adopted, the business of the vendor terminated before the purchase of item “b” of the property, therefore appellee was not purchasing goods and chattels used in the vendor’s business.

In any reasonable view we take of the situation we are of the opinion that the purchase by appellee was not within the prohibition of the Bulk Sales Act, and therefore that the judgment should be affirmed.

Affirmed.


text:
    George J. Burkheimer, Defendant in Error, v. Chicago, Rock Island & Pacific Railway Company, Plaintiff in Error.
    Gen. No. 6,210.
    (Not to he reported in full.)
    Error to the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 26, 1916.
    Statement of the Case.
    Action by George J. Burkheimer, plaintiff, against Chicago, Bock Island & Pacific Bailway Company, defendant, to recover for personal injuries. Prom a judgment for plaintiff, defendant prosecutes a writ of error.
    The plaintiff, a street car motorman, on a stormy night, drove his car onto the tracks of the defendant at a street crossing instead of stopping in accordance with his employer’s rules before reaching the track and waiting for the conductor to go ahead and signal a clear track, and was struck by the defendant’s train, admitted to have been running at a speed in excess of that permitted by an ordinance. A reversal was sought solely on the ground that the plaintiff was guilty of contributory negligence, and both parties requested either an affirmance of the judgment or reversal without remanding.
    The plaintiff had worked for the Peoria Bailway Company as motorman for about three weeks, and had no previous street car experience. His theory of the case was that he was intending to stop his car at the time in question, but that it was dark and snowing and he was relying on an electric light that the defendant maintained over the crossing to guide him as to the place to stop; that at the time the light was not burning and he, misled thereby, drove onto the crossing without knowing where he was. The evidence was conflicting on the question whether it was snowing, and it tended to show that there were other means from which the plaintiff might have known that he was approaching the track.
    Abstract of the Decision.
    1. Thai,, § 199

      —when verdict not directed. A verdict may not be directed where to do so would necessitate the weighing of conflicting evidence.
    2. Appeal and ebbob, § 1802*—when came remanded. In an action for injuries to a street car motorman struck by a train at a railway crossing, evidence as to due care of plaintiff at the time of the accident, held not to justify the reversal of a judgment in his favor without remanding.
    Stevens, Miller & Elliott, for plaintiff in error; M. L. Bell and A. B. Enoch, of counsel.
    Sheen & Galbraith and O. N. Mihigan, for defendant in error.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    C. V. O’Connor, Appellee, v. P. R. Kennedy, Appellant.
    Gen. No. 6,171.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bbokebs, § 37

      —when entitled to commissions upon procuring purchaser. If, after negotiations between the owner of real estate and a prospective purchaser have been broken off, the owner, after promising an agent that he will pay him commissions if he will get such prospective purchaser to buy the property, makes a sale to such purchaser after efforts of the agent had had the effect of bringing the parties to an understanding, such agent may recover the agreed commissions.

      Appeal from the Circuit Court of Boone county; the Hon. Claibe C. Edwabds, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 26, 1916.
    Statement of the Case.
    Action by C. V. O’Connor, plaintiff, against P. R. Kennedy, defendant, to recover real estate commissions. From a judgment for plaintiff, defendant appeals.
    After efforts on the part of defendant to sell his farm to a certain party had resulted in failure and negotiations had been broken off, the defendant, as claimed by the plaintiff, promised the latter certain commissions if he could get. such party to buy the farm, the making of which promise, however, was denied by the defendant. After efforts on the part of the plaintiff to effect a sale to such party, a sale was finally made to him by the defendant.
    James M. Huff and Charles W. Ferguson, for appellant.
    William L. Pierce, William Biester and Alexander J. Strom, for appellee.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

2. Witnesses, § 209 —when denial of cross-examination proper. In an action for commissions for the sale of real estate, refusal to allow the plaintiff to be cross-examined as to details of his knowledge of the land sold, where he had not testified on such matters in his direct examination, and the purchaser was familiar with the land, held not error.

3. Bbokebs, § 97*—when instruction in action for commissions properly refused as misleading. In an action to recover real estate commissions for a sale alleged to have been made by the owner, as a result of the plaintiff’s efforts following an alleged promise by the owner to pay the plaintiff such commissions after the owner had failed to effect a sale to such purchaser with whom he had originally negotiated, without any introduction by the plaintiff, an instruction making it essential to a recovery that the purchaser should have been originally procured by the plaintiff, held properly refused as misleading.

4. Appeal and ebbob, § 1533*—when error in spelling of word in instruction harmless. Substitution of the word “affect” for “effect” in an instruction, held not reversible error.

5. Bbokebs, § 97*—when instruction on right to recover commissions correct. In an action for commissions for the sale of real estate, an instruction that the plaintiff “is entitled to recover, if he was instrumental in bringing the buyer and seller together,” held correct and not open to the objection that the jury might have inferred that it meant a mere physical bringing together.


author: Per Curiam.

text:
    The People of the State of Illinois, Defendant in Error, v. Edward L. Herrick, Plaintiff in Error.
    Gen. No. 6,229.
    (Not to he reported in full.)
    Error to the County Court of McHenry county; the Hon. David T. Smujet, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed May 9, 1916.
    Statement of the Case.
    Information by the People of the State of Illinois, plaintiff, against Edward L. Herrick, defendant, charging him with wife abandonment and refusal to support his wife. Prom a conviction, defendant prosecutes a writ of error.
    Defendant, Edward L. Herrick, was, on a trial by the court without a jury, found guilty and fined under an information filed by the State’s Attorney in the County Court of McHenry county, September 24, 1915. The information as amended charged, that on to wit, the 24th day of May, 1914, at and within said county, Edward L. Herrick, the defendant, “wilfully, maliciously and without reasonable cause, did abandon in destitute and necessitous circumstances” his wife, Teresa Herrick, “and did then and there neglect and refuse to maintain and provide for her.” This was a penal offense under the Wife Abandonment Act of 1903 (J. & A. [[3431). The Legislature by an act approved June 24, 1915 (Laws of 1915, page 470) [Cal. Ill. St. Supp. 1916, [f 3433(1) et seq.], passed an act providing: “That every person who'shall, without any reasonable cause, neglect or refuse to provide for the support or maintenance of his wife, said wife being in destitute or in necessitous circumstances,” shall be punished, etc., omitting the offense of abandonment theretofore existing. This act was in force when the present information was filed. It expressly repealed all other acts or parts of acts in conflict therewith.
    Abstract of the Decision.
    1. Husband and wm:, § 275

      —when finding insufficient as basis for conviction for uHfe desertion. On an information charging that the defendant “wilfully, malitiiously and without reasonable cause, did abandon in destitute circumstances” his wife, “and did then and there neglect and refuse to maintain and provide for her,” where the defendant pleaded: "That he is not guilty of wilfully, maliciously and without reasonable cause abandoning in destitute and necessitous circumstances * * * [his wife] in manner and form as charged in the said information,” even though the offense of abandoning, which was repealed before the information was filed, be considered as surplusage, a conviction cannot be sustained on a finding that “the said defendant, * * * is guilty of wilfully, maliciously and without reasonable cause abandoning in destitute and necessitous circumstances * * * [the wife] in manner and form as charged in said information,” since no issue would have then been formed and there was no finding made on the charge of neglect or refusal to provide for the support of the wife as set out in the repealing statute in force at the time of the filing of the information.

      The issue tried was raised by a plea of the defendant : ‘ ‘ That he is not guilty of wilfully, maliciously and without reasonable cause abandoning in destitute and necessitous circumstances Teresa Herrick in manner and form as charged in the said information, as amended.” The finding of the court was that, “The said defendant, Edward L. Herrick, is guilty of wilfully, maliciously and without reasonable cause abandoning in destitute and necessitous circumstances Teresa Herrick, in manner and form as charged in said information.”
    The evidence seemed to show that the defendant was a resident of the State of Wisconsin at the time the information was filed, and at the time the Act of 1915 came in force.
    Waite & Donovan, for plaintiff in error.
    David E. Joslyn, for defendant in error.

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

   Per Curiam.

■2. Husband and wife—when resident of another State not guilty of refusal to support wife. Under Cal. Ill. St. Supp. 1916, K 3433(1) et seq., making refusal of a husband to support his wife a criminal offense, a conviction cannot be had of a husband who was a resident of another State at the time the act went into effect and at the time the information was filed.


text:
    George W. Clendenin, Appellee, v. Adams Express Company, Appellant.
    Gen. No. 6,282.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Whiteside county; the Hon. James S. Baume, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed May 9, 1916.
    Statement of the Case.
    Action "by George W. Clendenin, plaintiff, against Adams Express Company, defendant. Motion by defendant to quash a fee bill. From a refusal to quash the fee bill, defendant appeals.
    The motion to quash and the proofs for and against said motion were not preserved by a bill of exceptions. The record proper did not disclose what particular item of the fee bill was assailed. The clerk copied into the record a stipulation of counsel setting up certain alleged facts.
    H. C. Ward, for appellant.
    A. A. Wolpersperger, for appellee.

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

   Per Curiam.

Abstract of the Decision.

Appeal and error, § 1341 —when presumed that quashing of fee hill correct. Where, on appeal from a ruling on a motion to quash a fee bill, neither the motion nor the proofs heard for or against it are preserved by bill' of exceptions, the presumption is that the ruling was correct and the judgment will be affirmed.


text:
    David Strom, Appellee, v. Postal Telegraph-Cable Company, Appellant.
    Gen. No. 6,243.
    1. Appeal and error, § 1265

      —when presumed that constitutional question not involved. Where, after a constitutional question has been treated in briefs and arguments of counsel in a case before the Supreme Court, that court transfers the case to the Appellate Court, the latter court must assume that no constitutional question is involved.
    2. Workmen’s Compensation Act, § 12*—what plaintiff must aver and prove in action at common law. Where an employer elects not to come under the Workmen’s Compensation Act, his negligence, to form the basis of a recovery in an action at common law, must be averred and proved by the plaintiff.
    3. Workmen’s Compensation Act, § 2

      —what is effect of election hy employer not to come under act. An employer who has elected not to come under the Workmen’s Compensation Act is, when sued at common law by an employee, deprived of the entire defense of assumed risk, both known and unknown, ordinary and extraordinary.
    .4. Workmen’s Compensation Act, § 2*—what is effect of election hy employer not to come under act. The Workmen’s Compensation Act did not, by depriving an employer who should elect not to come under it of the common-law defense of assumed risk, thereby make him an insurer, since his negligence must be proved to make him liable for an injury to an employee.
    5. Workmen’s Compensation Act, § 12*—1when instructions' in action at common law correct. In an action at common law by an employee against his employer, who had elected not to come under the Workmen’s Compensation Act, instructions held to properly inform the jury that a verdict against the defendant could not be rendered if the evidence failed to show that its negligence was the proximate cause of the plaintiff’s injury.
    6. Workmen’s Compensation Act, § 2

      —when master electing not to come under act liable for negligence. In an action by a lineman against an employer who had elected not to come under the Workmen’s Compensation Act, for injuries sustained as a result of his spur tearing out of a pole which he was climbing, thus causing him to fall, held that if the defendant was negligent in not providing the pole with iron spikes it would be liable, notwithstanding that the danger of climbing the pole with spurs was obvious to the plaintiff.
    7. Master and servant, § 691*—when evidence sufficient to show negligence of master. In an action at common law by a lineman for injuries resulting from a fall from a pole alleged to have been caused by his spur tearing out of the pole, owing to its weakened condition, evidence held to justify a finding that the defendant, his employer, was negligent in not providing iron spikes or other appropriate means of climbing the pole other than the use of spurs.
    8. Master and servant, § 789*—when instruction erroneous as invading province of jury. In an action at common law by a lineman against his employer for injuries sustained from a fall alleged to have been caused by the plaintiff’s spur tearing out of a pole he was climbing, an instruction that the defendant owed the plaintiff no duty to place steps upon such pole, held properly refused, as such question of duty was for the jury and not for the court.
    9. Evidence, § 74*—what admissible as part of res gestee. In an action by a lineman for injuries sustained as the result of a fall from a pole alleged to have been caused by his spur tearing out of a decayed place in the pole, evidence showing that the pole was not provided with spikes, held admissible as part of the res gestee.

    10. Master and servant, § 618*—when refusal of evidence as to custom not erroneous. In an action by a telegraph lineman for injuries resulting from a fall from a pole, where there was no question of a hidden defect' therein, and the jury were instructed that the defendant employer would not be liable for injuries resulting from a hidden defect in the pole which it could not have reasonably discovered and repaired, the refusal to admit evidence of a-general custom among companies operating pole lines to make no independent inspection of poles other than that made by linemen themselves, held not error.

      11. Masteb and sebvant, § 800

      —when refusal of instruction proper. In an action by a lineman for injuries resulting from a fall from a pole alleged to have resulted from the plaintiff’s spur tearing Curt of a decayed place therein, held that the refusal of an instruction that there was no duty imposed on the defendant employer to inspect the pole was proper.
    12. Masteb and sebvant, § 779*—when refusal of instruction not error. On the issue whether an injury to a lineman was caused by a certain defect in a pole which he was climbing, where the evidence thereon was not all circumstantial, held that the refusal of an instruction that to entitle the plaintiff to recover it was necessary not only that the circumstances should all concur to show that the injury was caused by such defect, but that they were inconsistent with any other rational theory, was not error.
    13. Damages, § 123*—when verdict for personal injuries not excessive. A verdict of $3,000 awarded a telegraph lineman for permanent injuries, resulting from a fall from a pole, involving a thickening and stiffening of an ankle and shortening of a limb, held not excessive.
    Appeal from the Circuit Court of Will county; the Hon. Abthub W. Deselm, Judge, presiding. Heard in this court at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed May 24, 1916.
    Jacob E. Dittos and John H. Savage, for appellant.
    J. W. D’Arct, for appellee.

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

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

David Strom, the appellee, March 11, 1914, was in the employ of the appellant company as a lineman. His foreman ordered him to climb a telegraph pole in a public street in the City of Joliet for the purpose of removing one of the wires. Appellee was an experienced lineman, and used a pair of metal spurs such as are ordinarily used by linemen in climbing telegraph poles. He climbed about twenty-five feet from the ground and fell, suffering an impacted fracture of the lower base of the tibia of his right leg. He brought this action to recover for that injury and had verdict and judgment for $3,000. The company prosecutes this appeal.

The declaration contained three counts. The first charged failure of the defendant to furnish a safe place to work and failure to exercise reasonable care to furnish wooden telegraph poles in reasonably safe condition and repair to sustain the weight of the plaintiff when, climbing, standing or working with metal spurs. The second charged failure to inspect, repair and maintain reasonably safe and sound wooden telegraph poles so as not to injure the plaintiff when climbing, working or standing on spurs inserted in said poles, and that the pole in question was rotten, decayed, impaired, defective and unsafe for the plaintiff to work upon. The third charged a failure to provide reasonably safeguards on telegraph poles, or to place a ladder, steps or spikes in the poles on which linemen were required to climb so as to protect, support and sustain linemen when working and climbing in the service of the defendant; that the only means provided by defendant by which the plaintiff could ascend .the poles was by the use of a nietal spur strapped to each leg, and that when plaintiff was about to seat himself on the pole by the use of such spurs, and relying upon the pole to sustain his weight, and without knowledge of the defective condition of the wood in the pole, the wood underneath one of plaintiff’s spurs broke out and gave way on account of the unsafe and decayed condition of the wood.

Each count alleged that the defendant was not operating under the Workmen’s Compensation, and Employers’ Liability Law of 1913. The defendant pleaded the general issue.

On the trial it was admitted that the defendant was not operating under the Workmen’s Compensation Act. It appeared that the pole was about forty-two feet out of the ground, eighteen inches in diameter at the surface, and tapered towards the top, and was about twelve and one-half inches in diameter at the point from which the plaintiff fell. It was a Michigan cedar pole in use since the line was built in May, 1902. On the top of the pole were three sets of double cross-arms, occupying a space of about four and one-half feet. Plaintiff’s objective point was the top of the pole. About ten feet below the lower double cross-arm there was a single cross-arm. Plaintiff climbed to a point where he could reach with his hand this single cross-arm, having his right spur set in the pole. He reached up with his left hand to grasp the pole above the lower cross-arm, at the same time lifting his left foot. His right spur gave way and he slid down the pole with his arms around it, striking the ground first with his right foot. There is evidence tending to show that a chunk of the pole eight or ten inches long and perhaps two inches wide broke out from the pole at the point where the spur was inserted. Appellant’s theory of the accident, which there is evidence tending to prove, is that there was a knot in the pole where the plaintiff inserted the right spur; that there were usually in poles knots that were hard so that it was difficult to drive a spur into them, and that workmen were usually careful to avoid such knots; that the accident happened because of the knot and the failure of care on the part of the plaintiff to avoid it. The plaintiff’s theory is that the outside of the pole was much scarred and broken by constant climbing and therefore unsafe; that a piece of the wood, because of this weakened condition, gave way at the point where the spur was inserted and caused the accident. There is no question that the outside of the pole to the depth of the penetration of a spur was much marked and weakened, otherwise the pole was sound.

Section 3 of the Workmen’s Compensation Act of 1913 [Cal. Ill. St. Supp. 1916, [¶ 5475 (3) ] provides that in actions to recover damages against an employer who shall elect not to provide and pay compensation according to the provisions of the act it shall not be a defense that, first, the employee assumed the risk of the employment; second, the injury or death was caused in whole or in part by the negligence of a fellow-servant; or, third, the injury or death was proximately caused by the contributory negligence of the employee. Appellant, while conceding that its business brought it within the provisions of the Compensation Act, takes the position that nevertheless the plaintiff necessarily agreed to assume all risks which are ordinarily and usually incident to the service, and if the injury was the result of one of the risks ordinarily incident to the work in which plaintiff was engaged, then he cannot recover. It offered instructions based on that theory, which were refused by the trial court, and prosecuted its appeal to the Supreme Court because of its contention that the part of the Employers ’ Liability Act abolishing the defense of assumed risk is unconstitutional. The Supreme Court [271 Ill. 544] transferred the case to this court, therefore it must be assumed no constitutional question is involved, and we must disregard that part of the brief and argument first filed in the Supreme Court and now filed here that is devoted to that question. Appellant, however, says that at common law there are two classes of risks which are assumed by the servant: First, those risks which are not created by the master’s negligence, being the ordinary risks of the service; and, second, those risks which are created by the master’s negligence, or extraordinary risks, the assumption of which is dependent wholly or in part on the servant’s knowledge of the existence of the danger. That to say the servant does not assume the former class of risks—the usual and ordinary hazards of the business—is to say that the master is an insurer, that there can be no recovery against the master unless he is guilty of some breach of duty owing by him to the servant; that the ordinary risks are assumed by the servant, which means that the master is not an insurer against injuries resulting from dangers which cannot be removed by the exercise of due care upon his part. While the statute in question creates a liability on the part of the master regardless of his negligence or want of negligence, if he elects to come under its terms, we have no doubt that in cases like the present one, where the master rejects the provisions of the act, his negligence must be averred and proven to warrant a recovery. The provisions of the act above quoted simply exclude certain defenses, among them assumed risk. In considering the defense of assumed risk in common-law actions, the courts have often distinguished between ordinary and extraordinary risks, and have discussed extraordinary risks as those created by the negligence of the master, and used the terms non-negligent and negligent risks, also sometimes classifying risks as “known” and “unknown.” An exhaustive discussion and citation of authorities on this subject is found in a note in 28 L. R. A. (N. S.) page 1218. But the question in the present case is whether the Legislature intended to exclude the entire defense of assumed risk regardless of classifications and subdivisions of the subject. We' are of the opinion that it did, and that in so doing it did not make the master an insurer because it is still necessary to show him negligent. In the cases of Streeter v. Western Wheeled Scraper Co., 254 Ill. 244 [1 N. C. C. A. 828]; Deibeikis v. Link-Belt Co., 26.1 Ill. 454 [5 N. C. C. A. 401]; Crooks v. Tazewell Coal Co., 263 Ill. 343 [5 N. C. C. A. 410]; Dietz v. Big Muddy Coal & Iron Co., 263 Ill. 480 [5 N. C. C. A. 419]; and Bell v. Toluca Coal Co., 272 Ill. 576, the Supreme Court considered questions arising in denying masters the defense of assumed risk. In the first mentioned case there is an extensive discussion of the doctrine of assumed risk. We find nothing in those cases upon which to base a theory that the Legislature only intended to exclude the defense in one class of assumed risks. To say that the servant assumes risks that do not arise from the master’s neg-. ligence adds nothing in the present case to the statement that the master is not liable if not negligent. The jury were instructed that negligence on the part of the defendant must be proven as an affirmative fact by a preponderance of the evidence; that the defendant was not an insurer of the plaintiff against injury while in its employment and that they could not find a verdict against the defendant merely because the plaintiff was injured, that they could not find the- defendant negligent merely because the spikes attached to the plaintiff’s climber slipped out of the pole; that if they believed from the evidence that the injury to the plaintiff was the result of an accident and that the defendant was not the cause thereof, they should find the defendant not guilty; that if they found the injury was caused by plaintiff’s negligence and not by the negligence of the defendant, they should find the defendant not guilty; that if they believed the accident occurred because of hidden defects in the pole not known to defendant and that could not be known to defendant by the exercise of ordinary diligence in time to avoid the injury, then they should find the defendant not guilty; that they could not find the defendant guilty even if they found the pole was defective in some respects unless they further found from the evidence that such defect was the proximate cause of the injury, and that the defendant knew of such defects, or by the exercise of ordinary care should have known of the same in time to avoid the injury; that if the injury was the direct and natural result of an accident and not the direct and natural result of the defendant’s negligence, they must find for the defendant. The instructions left no ground for a verdict against the defendant if the evidence failed to show its negligence as the proximate cause of the injury. Nothing of legitimate benefit to the defendant could have been obtained by trying to inform the jury of distinctions and differences in the rules of assumed risk. The risk was that the outside of the pole, because of its scarred and weakened condition, might splinter and give way under the pressure of the spur. There was no special inspection required. The defect was obvious and as well known to the plaintiff as to the defendant. If the defendant was under no duty to the plaintiff to remedy this defect it is not liable. If the defect should have been remedied by placing spikes in the pole on which to climb, or in some other practicable way, then the defendant was liable, notwithstanding the danger was obvious. And the plaintiff might have been held, in the absence of the statute, to have assumed the risk and notwithstanding he might by the exercise of greater care have safely ascended the pole. We may assume that appellant was not liable if the accident was occasioned by a knot in the pole that it in the exercise of ordinary care was not required to guard against. There was sufficient evidence that it was caused, as appellee suggests, by the splintering of the pole, to forbid a court’s disturbing the verdict of a jury based on that finding of fact. It appeared that most of defendant’s other poles in the vicinity had steps or spikes inserted upon which the workmen could climb. And while it also appears that the primary object of inserting such steps was not that of safety and very likely an unscarred pole could as safely be climbed without them, yet weethink the jury were justified in finding that- because of the weakened condition of the outside of the pole reasonable safety required the master to provide some such means of climbing.

Appellant asked the court to instruct the jury that it was not the duty of the defendant to place steps in its poles, which the court refused, and it is argued that this was error, and that the court also erred in permitting evidence to be introduced showing that the pole in question was not stepped. It is a sufficient answer to these objections that evidence was necessarily heard on the condition of the pole as part of the res gestee, and such evidence would necessarily disclose whether there were steps upon it, and that it was not for the court to determine, as matter of law, whether steps should have been placed upon the pole. It was for the jury to determine whether the pole was reasonably safe, and the court could not instruct them what construction was or was not sufficient for that purpose.

Appellant also contends that the court erred in refusing to admit evidence of the. general custom among companies operating pole lines to make no independent inspection of its poles other than that made by the linemen themselves, and erred in refusing to instruct the jury that no duty of inspection rested on the defendant. This matter could only be important if some hidden defect of the pole had been in question. No such defect was under consideration. The jury were instructed that the defendant was not liable for hidden defects which it could not reasonably discover and repair. If it had been a question of hidden defect, we know of no authority permitting a court to say to a jury, as matter of law, what specific thing the defendant should have done or need not do to discover and repair it. Where all the facts of a situation have been ascertained and made intelligible to the jury, it is not a question for expert opinion whether the condition is safe or unsafe, nor should evidence be heard of what specific things other men do or are in the habit of doing under such circumstances. (Bell v. Toluca Coal Co., supra, and authorities there cited.) Appellant asked the court to instruct the jury that before they could find that the injury of the plaintiff was caused by a defect in the pole it was necessary not only that the circumstances should all concur to show that the injury was caused by such defect, but that they are inconsistent with any other rational conclusion. This instruction was based on the theory that the evidence was entirely circumstartial, which was not the fact, therefore the court for that reason, if for no other, did not err in refusing that instruction.

Appellant in its brief states five points relied on for the reversal of the judgment. What we have said disposes of the questions presented in its statement of those points. There is a suggestion in the argument that the verdict is excessive. The injury was permanent, resulting in a thickening and stiffening of the ankle, .and a shortening of the limb about an inch. We are of the opinion that the verdict was not excessive. Finding no substantial error in the record the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Niehaus

text:
    Penn Mutual Life Insurance Company, v. M. S. Forbes, Administrator, et al., Appellees. Arthur B. White, Appellant.
    Gen. No. 6,177.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Carroll county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Bill in equity filed by the Penn Mutual Life Insurance Company, complainant, against M. S. Forbes, administrator of the estate of Lizzie White, deceased, Arthur B. White and Lulu M. Wheeler, defendants, praying that the defendants be impleaded and their rights to the proceeds of a life insurance policy in the hands of the complainant be determined. From a decree, the defendant Arthur B. White appeals.
    Lizzie White, deceased, in her lifetime took out a life insurance policy in the sum of $2,000, in the Penn Mutual Life Insurance Company, which was payable to the executors, administrators or assigns of the insured. On the 16th day of October, 1894, this policy was assigned by her to her two children, Arthur B. White and Lulu M. White, who were minors at that time. The assignment was properly executed by the insured in the regular way, as required by the insurance company, and witnessed by an agent of the insurance company. A duplicate copy of the assignment was furnished by the insurance company and received by the company about November 1,1894, and the company accepted the assignment as a transfer of the right to the benefits accruing under the policy. Whether the assignment was ever attached to the policy, which was retained by the insured, did not clearly appear.
    The insured died on December 24, 1912. At the time of her death the insurance policy was still in her possession. Just prior to her death the insured made a last will in which she bequeathed the entire proceeds of the policy to her daughter, Lulu M. Wheeler, formerly Lulu M. White. The will was afterwards probated in the County Court of Carroll county, and the defendant M. S. Forbes was appointed administrator of the estate. The administrator claimed the proceeds of the policy and thereupon the insurance company filed a bill of interpleader in the Circuit Court of Carroll county, in which the company set forth the facts relative to the issuing of the policy to the insured and the subsequent assignment thereof to her children, and the fact that the proceeds of the policy were also claimed by the administrator of the estate of the insured. It also appeared from the bill that the net amount due under the policy was $1,760.32; that under the terms of the policy an unpaid premium note of $262.48 was to be deducted from the gross amount due under the policy, and the complainant prayed to be allowed to pay the money into court so that the parties claiming the same could interplead.
    Upon the hearing of the bill of interpleader the court entered a decree directing the insurance company to pay the $1,760.32 to the clerk of the court for the benefit of the party who might subsequently be decreed to be entitled thereto, and discharging the insurance company from all further liability in connection with the matter. The cause was thereupon referred to a special master in chancery to inquire into and report which of the defendants interpleading was entitled to the fund in controversy. The master, under the reference, heard all evidence offered by the respective parties to the suit.
    Evidence was offered before the master not only concerning the matters pertaining to the assignment, the validity of which was in controversy, but there was also considerable evidence offered concerning the supposed disposition of some of the assets of the insured by her brother, Frank E. Adams, and concerning a supposed contract entered into by Adams with Lulu M. White, on the strength of which it was claimed by Adams that she requested him, as executor, named in the will of the insured, to pay her brother $1,000, and to reimburse himself from the proceeds of the policy, when he should collect the same; also evidence tending to prove that Lulu M. WTbite afterwards, at the instance of her husband, repudiated this alleged agreement and that afterwards Adams was arrested in Clinton, Iowa> upon a charge of concealing the will of the insured, and that certain parties, including Lulu M. Wheeler and her husband and Arthur B. White, by means of this arrest and threatened prosecution, procured from Adams the payment of $1,000 to Arthur B. White, and also other money. Adams testified that before his arrest he had voluntarily paid to Lulu M. Wheeler, by the directions he had received from his sister, the deceased insured, before her death, the sum of $500, and also $200 to Arthur B. White.
    Abstract of the Decision.
    1. Insurance, § 567

      —what not proper issues in action of inter-pleader. In a suit in equity where an insurance company paid the amount due on a policy into court and impleaded as defendants the administrator of the deceased insured’s estate and her two children, claiming the proceeds of such policy as assignees thereof, held that the issues whether certain moneys, claimed to have been paid by one not a party to the suit to the assignees on the alleged agreement that reimbursement should be had from the proceeds of such policy when collected, were in fact so paid, and whether they were paid from assets of the estate or from moneys belonging to such third party individually, were issues not properly within the suit since rights under such agreement, if existent, were personal ones between the assignees and the third party, and as to whether the money so paid belonged to the estate was a matter to be settled between the administrator and such third party in a proper proceeding in which he should be duly made a party.
    2. Insurance—when administrator may not question assignment of policy. Though an insurance company requires that the assignment of a policy be attached to the policy, failure to comply therewith cannot be raised by the insured’s administrator in an attack on the validity of such assignment, the estate having been the original beneficiary and the company having recognized the assignment.
    3. Insurance, § 174

      —how delivery of assigned policy may he

      made. Manual delivery of an assigned policy of insurance to the assignees is not necessary to validate the assignment, and such delivery may be by acts without words, or by words without acts, or by both.

      He further testified that there never were any assets of the estate of Lizzie White in his hands from which any payment could be made; that she had donated to brm all the assets of her estate before her death, and that she left none except the insurance policy.
    McMahon & Rogers, for appellant Arthur B. White,
    F. J. Stransky, for Mark S. Forbes, Administrator.

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

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

4. Compromise and settlement, § 16*—when acceptance of settlement by minor presumed. In the case of minors where a voluntary settlement is made for their benefit, an acceptance is presumed.

5. Insurance, § 175*—when assignment of policy valid. Where the insured executed in duplicate an assignment of a policy, payable to her estate, to her minor children, and sent a copy of such assignment to the insurance company, which was accepted by it, and retained the policy in her possession until her death, held such assignment was valid without a manual delivery of the policy.

6. Insurance, § 504*—who may be made beneficiary upon change of. An insurance policy payable to the insured’s estate may, by him with the consent of the insurer, be made payable to any one not prohibited by law from becoming a beneficiary thereunder.

7. Insurance, § 504*—when substituted beneficiary entitled to proceeds. A delivery of a- policy to one substituted,, with consent of the insured, as beneficiary therein is not necessary to entitle such beneficiary to the proceeds thereof.

8. Insurance, § 504*—what constitutes change of beneficiary. A duly executed assignment of a policy of insurance, payable to the insured’s executors, etc., is in effect but a change of beneficiary, and no delivery is necessary to make it valid.

9. Insurance, § 179*—what is effect of will malcing different disposition of proceeds of assigned policy. Where a policy of insurance payable to the insured’s executors, etc., was duly assigned to the insured’s minor children, though she retained possession thereof until her death, held that a different disposition of the proceeds thereof by will was ineffective.


text:
    Payton J. Tuohy, Appellant, v. Chicago & Joliet Electric Railway Company, Appellee.
    Gen. No. 6,195.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Will county; the Hon. Arthur W. Deselm, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Suit by Payton J. Tuohy, petitioner, against the Chicago & Joliet Electric Railway Company, respondent, to establish an attorney’s lien. From an order dismissing the petition, the petitioner appeals.
    The petition averred that James W. Miner, of the City of Joliet and county of Will, retained the petitioner to represent him, as personal representative of Harold Miner, deceased, in probating the estate of the deceased, and also in an action for personal injuries resulting in the death of said Harold Miner, such action to be brought against the Chicago & Joliet Electric Railway Company; that the petitioner on or about the 28th day of October, 1912, entered into a contract with said Miner, whereby he was to receive for his services rendered in that behalf a fee of one-third of the amount recovered against the Chicago & Joliet Electric Railway Company; that in compliance with the terms of the aforesaid agreement, he attended the inquest over the body of the aforesaid Harold Miner, deceased, and examined all the witnesses before the coroner; that on or about the 31st day of October, 1912, he served upon the Chicago & Joliet Electric Railway Company a notice of attorney’s lien; that thereafter James W. Miner and the Chicago & Joliet Electric Railway Company compromised the said claim, with James W. Miner as administrator of the estate of Harold Miner, deceased, and that the sum of $600 was paid to James W. Miner, as administrator, in full of all claims without the knowledge of the petitioner, and without any notice having been given petitioner.
    Abstract of the Decision.
    1. Attorney and client, § 138

      —when attorney not entitled to lien for services. "Where an attorney makes a contract with another, who subsequently is appointed administrator, to bring an action for damages for the death of the, deceased, but such contract is not ratified by the administrator after his appointment, such attorney cannot, by serving notice on the one who caused the death, acquire a lien on such cause of action.
    2. Attorney and client—how notice to establish lien must be given. A notice to establish an attorney’s lien must be served personally and cannot be made by mail.
    3. Attorney and client—what is effect of admitting service of notice for lien. In a suit to establish an attorney’s lien, held that the respondent by admitting the service upon him of the notice set out in the attorney’s petition did not admit that the service was made in the manner required by the statute.
    The petition also averred that the notice required by the statute to be given was served and filed, in order to establish the lien, and was served and filed as required by law, but the evidence showed that the notice was served by mail. *
    Payton J. Tuohy, for appellant.
    E. Meers, for appellee.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Louis Schildmiller, Appellee, v. Cigarmakers’ International Union of America et al., Appellants.
    Gen. No. 6,198.
    (Not to he reported in full.)
    Appeal from the County Court of Rock Island county; the Hon. Nels A. Larson, Judge, presiding. Heard in this court at the Oeto.ber term, 1915.
    Affirmed.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Action by Louis Schildmiller, plaintiff, against the Cigarmakers ’ International Union of America and Cigarmakers’ International Union of America Local No. 201, defendants, to recover a death benefit. From a judgment for plaintiff, defendants appeal.
    It appeared from the evidence that the father of the plaintiff, Henry Schildmiller, was at the time of his death in good standing as a member of the defendant Cigarmakers’ International Union of America Local No. 201; that he had been such member for more than fifteen years prior to his death, which occurred on or about February 15, 1914; that under the constitution and by-laws of the organization named, it was provided that upon the death of such a member, a death benefit of $550 should be paid to any person designated in writing by such member; that if he failed to designate a person in writing, such death benefit should be paid to his widow; that if there was no widow, then to his minor children; that if there be no widow nor minor children, then to any relative of the deceased member who, at the time of his. death, was dependent for support, in whole or in part, upon such deceased member.
    It appeared that the deceased did not designate any one in writing as beneficiary; that he left no widow nor minor children, but did leave surviving him his son, the plaintiff, who claimed that he was partly dependent upon his father for support.

      The evidence showed that the local organization was a part of the national organization, and under its control; that the local organization collected for and had the custody of the benefit fund out of which death benefits were payable; that the national organization controlled the fund, 'of which the local organization had the custody; that the local organization was prohibited by the by-laws of the organization from paying death benefits, except by the direction of the national organization.
    The deceased member was a widower, and lived with the plaintiff, who was his only son; and while living with his son, and for at least two years prior,to his death, he earned $30 per month for nine months of the year, which he paid over to his son, who used it for the support of himself, his family and household, of which the deceased was a member. The earnings of his father was the only money, outside of his wages, which plaintiff had or could depend on for the support of himself and family. The plaintiff was earning at the rate of $50 per month, and the amount required for such support varied from about $87 to $93 per month. The father while living with the plaintiff received as a part of this family expense from the plaintiff, not only food and clothing, but small incidentals, such as tobacco.
    Johnston & Bailsback, for appellants.
    Ben A. Stewart, for appellee; Wole & Love, of counsel.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

Abstract of the Decision.

1. Insurance, § 861 —when action properly brought against local and national organizations of mutual benefit association. Where a local organization of a benefit association was part of and under the control of the national organization, the former collecting dues and having custody of the benefit fund which the latter controlled and whose authority was necessary to permit the local organization to pay benefits, held that a suit for a death benefit was properly brought against both organizations.

2. Insurance, § 816—when person in part dependent. Where a member of a benefit association lived with his son, to whom he gave his wages, and the son, from such wages and those earned by himself, supported his family and his father, held that the son was partly dependent on the father for support, and entitled to recover a death benefit payable to one in whole or in part dependent on a member for support.

3. Insurance, § 897*—when dependency question of fact. Whether one is dependent for support on a member of a benefit association, within the meaning of the certificate, is a question of fact to be determined from the facts and circumstances of each particular case.

4. Insurance, § 816*—when person entitled to recover as dependent. In order to entitle one to recover on a death benefit certificate as a dependent of a deceased member of a benefit association, it is not essential that there should have been any legal duty of the deceased member to support such dependent.

5. Insurance, § 816*—when person entitled to recover as dependent. In order to entitle one to recover as a dependent, a death benefit of a deceased member of a benefit association, it is only necessary that such dependency exist to a substantial extent.