text:
    William Vollbracht and A. M. Omer, trading as William & H. F. Vollbracht, Appellants, v. Western Union Telegraph Company, Appellee.
    1. Tender, § 20

      —how tender must be proved. Admission of testimony by the clerk of court that “five dollars and cost was put 'up as a tender” was improper in the absence of evidence of a tender having been made to either of plaintiffs or their attorneys and in the absence of showing as to the amount of cost “put up.”
    2. Tender, § 20*—what is proper evidence of tender. ' Tender may be shown by evidence of an offer to a party or his attorney, either before or after the commencement of suit, and the bringing of the amount into court.
    3. Evidence, § 304*—io7i<z£ is necessary to introduce letters in evidence. Admission in evidence at the trial in question, of a number of telegrams and letters which had been produced at the taking of a deposition, was improper without further proof although a large number had no relation to the shipment in question, and no one testified to having written any of them to plaintiffs.
    4. Evidence, § 304*—when identification of letter is essential. A letter set forth in a special plea in a suit against a telegraph company to recover damages sustained through an error in using the word “ten” instead of “one,” in stating the time of delivery of seed in a telegram, was improperly admitted in the absence of proof of its having been sent, and therefore that part of the plea setting up negligence of plaintiffs in discovering such letter which would have put plaintiffs on notice of the error, was not supported.
    5. Telegraphs and telephones, § 38*—what instruction as to evidence is erroneous. Where in a suit against a telegraph company for damages caused through error in using the word “ten” instead of “one,” in stating the time of delivery of seed in a telegram, the defendant claimed that the seed was refused because of plaintiffs’ refusal to permit an inspection, a special finding by the jury that the seed was refused because of the refusal of leave to inspect before payment was wrong, where there was insufficient evidence on which to base it.
    6. Telegraphs and telephones, § 39*—when submission of question to jury is erroneous. Where in a suit against a telegraph company for damages caused through error in using the word “ten” instead of “one” in stating the time of delivery of seed in a telegram, there were various defenses, a special interrogatory asking whether the consignees waived their right to refuse the seed because the same was not delivered in one day as stated in the telegram, presented a question of law and should not have been submitted to the jury.
    7. Tblegbaphs and telephones, § 32

      —what evidence of damages is proper. The refusal to admit evidence of the amount paid for the expense of a trip by one of the plaintiffs was error in an action against a telegraph company for damages resulting from a mistake in a telegram in using the word “ten” instead of “one” in stating the time of delivery of seed, where it was shown that said plaintiff, after learning of the refusal to fulfil the contract, went to defendant to ascertain the wording of the telegram, and upon defendant's failure or refusal to give the desired information, made the trip in question and, upon learning of the error, immediately began to try to sell the seed and succeeded in doing so at a loss.
    Appeal from the Circuit Court of Adams county; the Hon. Habky Higbeb, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed October 27, 1920.
    Hubbard & Groves, for appellants.
    John E. Wall, for appellee.

      See Illinois Notos 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 t< pic and section number.

   Mr. Presiding Justice Waggoner

delivered the opinion of the court.

Appellants are engaged in business at Camp Point, Illinois, a part of which is buying and selling seed. John J. Buffington & Company are in the wholesale seed business at Baltimore, Maryland. Sales of seed were made, by the former to the latter, by means of offers and acceptances by exchange of telegrams.

On August 14,1912, appellants delivered to appellee, for transmission, the following telegram:

“John J. Buffington & Co., Baltimore, Md. Message received—cannot accept your bid—will take five dollars hundred our track—two hundred fifty bags—ten days shipment—like sample of other car—wire instant acceptance—will wait until noon August fifteenth— market looks higher in the west owing to wet weather. Wm & H. F. Vollbracht.”

The message was transmitted and when delivered, to the firm to which it was addressed, read “one days shipment” instead of “ten days shipment.”

On receipt of this telegram, John J. Buffington & Company replied by wire, saying:

“Tour wire received. We accept. Ship Baltimore and Ohio Railroad.”

Assuming that they had made a sale of two hundred and fifty bags of timothy seed at five dollars a hundred pounds to be shipped within ten days to John J. Buffington & Company, appellants made a shipment of that number of bags of such seed weighing thirty-three thousand eight hundred and seventy-five pounds within that time. The consignees did not accept the timothy seed, appellants sustained a loss by reason thereof, and this suit was brought to recover such loss.

The declaration contains two counts charging, in substance, that appellee was employed by appellants to transmit a telegram from Camp Point, Illinois, to John J. Buffington & Company, Baltimore, Maryland, for the sale of timothy seed, consisting of two hundred and fifty bags at five dollars a hundred pounds, f. o. b. Camp Point, on ten days’ shipment, but by mistake of the telegraph company, the telegram was caused to read “one day” shipment, and appellants thereby lost the difference between the market value, after a serious decline, when they learned of said mistake, and what would have been the contract price if said mistake had not prevented a contract between John J. Buffington & Company and appellants; and also loss and expense of one of appellants’ firm in necessary travel to Baltimore to ascertain what the trouble was in reference to the sale of the seed.

To the declaration a plea of general issue was filed, together with a special plea, stating that the appellants ought not to recover more than nominal damages because John J. Buffington & Company, on the receipt of said (appellants’) telegram, believing that a mistake had been made in the offer and proposition contained therein providing for shipment in one day, immediately executed a letter in words and figures following :■

“Baltimore, Md., Aug. 15, 1912. Messrs. Wm. & H. F. Vollbracht, Camp Point, Ill. Gentlemen:—This morning we 'received your- night wire of 14th inst., offering 250 bags of timothy seed at $5.00 per 100 lbs., f. o. b. for shipment in one day, quality like sample of other car for our wire to reach you by noon this date. We wired you this morning accepting the lot of seed, requesting prompt shipment. Hope you will get the seed out promptly. Please let us call attention also to be careful to keep the quality fully up, as it is only on the line of what we must have in quality. Make arrival draft allow inspection against bill of lading.
Yours very truly,
John J. Buffington & Co.”

The special plea also alleged that said letter was placed in an envelope, properly stamped and addressed to the appellants, and deposited in the post office at Baltimore, Maryland; that it was duly received by the appellants and read by an agent and employee of the appellants duly authorized to open mail; and notwithstanding the receipt of said letter, appellants negligently failed to read the same or give proper attention and negligently failed to reply and without the exercise of reasonable care to ascertain its purport, failed to discover said mistake of the appellee; that if appellants had exercised reasonable care, they would have discovered before shipping the seed in controversy, that the telegram delivered to John J. Buffington & Company, at Baltimore, Maryland, was not the telegram delivered by the appellants to appellee at Camp Point, Illinois, and did not submit to John J. Buffing-ton & Compand, the proposition or offer appellants intended to submit by their said telegram, but on the contrary, submitted an entirely different proposition, to wit: An offer to ship such seed in one day instead of ten days, and solely by reason of the negligence of the appellants they failed to discover said mistake before purchasing and shipping such seed, and well knowing the premises, the appellants, nevertheless, more than eight days and after the receipt of said letter and reading the same, procured said seed designated in said proposition and shipped the same by freight to John J. Buffington & Company, who first placed their refusal to accept said seed upon the ground they were denied by the appellants the right to inspect the same, but afterwards placed such refusal on the ground that the said seed was not shipped in the time stated in the telegram received by them; that appellants were not compelled to deliver said seed to John J. Buffington & Company, and that the same was purely voluntary, arid that the loss or damage resulting by reason of such shipment must be borne by appellants.

Appellants filed a replication to the special plea, in which they denied receiving the letter in question.

The court submitted to the jury three special interrogatories asking (1) if appellants, before shipping the seed in controversy, received the letter dated August 15, 1912; (2) did John J. Buffington & Company refuse to' receive the seed designated in the telegram in question because appellants would not permit them to inspect it before paying for it; and (3) did John J. Buffington & Company waive their right to refuse the seed because the same was not delivered in one day as stated in the telegram in controversy. The jury answered each of these questions in the affirmative, and returned a verdict finding appellee not guilty. The court rendered judgment in favor of appellee for its cost, in excess of those tendered by it, and ordered that appellants have leave to withdraw the sum of five dollars of the amount tendered.

bio evidence was offered of any tender having been made to either of appellants, or to one of their attorneys, either before or after the commencement of the suit, and of bringing an amount tendered into court, which should have been done in order to constitute a tender. All that is shown by the record, in reference to a tender, is that on the trial it was agreed that the record might show that the clerk testified, over the objection of appellants, “that five dollars and cost were put up as a tender. ’ ’ Nothing is said about the amount of cost “put up.” Appellants’ objection to the admission of the testimony of “the clerk” should have been sustained in the absence of evidence of a tender having been made, together with the amount thereof, to the appellants, their attorneys or some one of them, and of the amount tendered having been brought into court. The instructions, given on the subject of tender, should have been refused.

The deposition of John J. Buffington was taken, by appellants, and on cross-examination he was asked to produce all correspondence relating to the shipment in question from August 14, 1912, to September 12, 1912, and in response to such request produced a number of telegrams, letters (originals and copies) which he said had been handed him by his employees. All of the letters and telegrams, without further proof, were admitted in evidence on the trial, notwithstanding the fact that a large number of them had no reference whatever to the car of seed in controversy but related to other shipments; that no one testified to having written or sent, to appellants, any of them; that they were irrelevant, immaterial and could serve no purpose other than to confuse the jury and render obscure the issue being tried.

William Vollbracht was on cross-examination shown the letter set out in the additional plea, and testified that he did not know whether he received it or not; that the first communication received from John J. Biiffington & Company in reference to the car in controversy, after the telegram accepting the offer made them by appellants, was on September 10; that they got no letters—just telegrams.

There was no evidence tending to support that part of the additional plea in regard to appellants’ negligence in discovering that appellee had made a mistake, other than this letter which the court erred in admitting. It was also error to give appellee’s instructions numbered twelve, thirteen, fourteen, fifteen and sixteen, for the reason that there was no evidence upon which to base either of them, and the first interrogatory should not have been submitted to the jury for a like reason. John J. Buffington testified that he refused to receive the car of seed for the reason that it had not been shipped in time; that when the car arrived “we did not refuse to pay the draft. We wired for permission to sample the seed”; that they delayed payment of the draft for a considerable time until allowed to sample or inspect the seed. Appellants denied the right of inspection and a sale was subsequently made of the seed to John J. Buffington & Company without an inspection having been made. Buffington testified that it was inspected after he bought it. Under this evidence the jury, by their answer to the second interrogatory, found that John J. Buffington & Company refused to receive the seed because appellants would not permit them to inspect it before paying for it. There was insufficient evidence upon which to base this interrogatory. The answer to it was clearly wrong. Instructions twenty-one and twenty-two, in regard to the refusal of the seed, should not have been given.

The fourth interrogatory presented a question of law and should not have been submitted to the jury.

The evidence shows that after receiving a telegram from John J. Buffington & Company, that appellants had not fulfilled their contract, William Vollbracht went to the agent of appellee at Camp Point, and asked him for a service message in order to ascertain the wording of the telegram when it was delivered. He applied several times for this information, but the agent failed or refused to furnish it, and after waiting three or four days, trying to get some information through appellee, William VoIIbracht went from Camp Point to Baltimore to learn what the trouble was. After getting to Baltimore he saw the telegram as it had been delivered to the addressees with the error in it, and immediately began to try to make a sale of the seed, and succeeded in so doing at four dollars and twenty cents a hundred pounds.

Appellants offered to show, on the trial of the case, that the actual railroad fare and hotel expenses necessitated by the trip to Baltimore were forty-nine dollars and fifty cents. The admission of this evidence was refused. Appellee by a mistake in transmitting the telegram and its subsequent conduct rendered it necessary for one of appellants to go to Baltimore, and we know of no reason why, as the damages' are specially •laid in the declaration, they should not be recoverable. If it be suggested that appellants could have obtained a knowledge of the contents of the telegram by a less expensive means than by going to Baltimore in person, by telegraphing John J. Buffington & Company to repeat the message as received by them, it should be remembered that appellee was bound to use reasonable efforts to save itself and appellants from loss (Western Union Tel. Co. v. Hart, 62 Ill. App. 120, 124), and might have done so by furnishing the information requested.

For the errors above indicated the judgment rendered in the circuit court is reversed and this cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Waggoner

license: Public Domain

text:
    Flora M. Nelson, Appellee, v. Richard Elmer Nelson, Appellant.
    1. Husband and wife, § 236

      —when fact of marriage justifies temporary alimony. Where in a separate maintenance proceeding the marriage ceremony was admitted by the defendant and only its legality questioned, allowance of temporary alimony was justified.
    2. Husband and wife, § 232*—when temporary alimony may he allowed. It is no objection to the allowance of alimony pending the wife’s bill for separate maintenance that the husband denies the facts alleged by her. The court may, if it deems necessary, enter into a sufficient examination to determine the good faith of complainant in exhibiting her bill, which will ordinarily be confined to an inspection of the pleadings.
    3. Husband and wife, § 236*—what is effect of dispute as to legality of marriage as to alimony. Where the validity of the marriage was a disputed question in a bill for separate maintenance, it could not be prejudged on an application for temporary alimony, solicitors’ fees and suit money, and the marriage ceremony, which was not denied, was deemed sufficient prima facie proof under the circumstances, and the validity of the marriage was reserved for determination upon the final hearing.
    Appeal from the Circuit Court of Hancock county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Williams & Williams and Mack & Mack, for appellant.
    O’Harras, Wood & Walker, for appellee.

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

   Mr. Presiding Justice Waggoner

delivered the opinion of the court.

Appellee was married to one Robert Jones, and upon a bill filed by her a decree was rendered in the circuit court of McDonough county .granting her a divorce. Subsequently she and appellant were, on June 24, 1913, married by the judge of the county court of such county, and they lived together as husband and wife from the date of their marriage until December 13, 1913, when a separation occurred.

On October 9, 1918, appellee filed a bill for separate maintenance, in the circuit court of Hancock county, against appellant, who answered such bill denying her right to relief, and also .filed a cross-bill for an annulment of their marriage.

The amended bill of complaint asked for separate maintenance, alimony, solicitors’ fees and suit money. Such bill set up the fact of her prior marriage and. divorce, and asked that it might be found, by a decree of court, that she and the said Bichard Elmer Nelson were legally married on June 24,1913, and that by said marriage ceremony on that date they became man and wife; that appellant, by decree, be estopped and precluded from at this time denying the said marriage and from insisting upon the insufficiency, if any, of said decree of divorce.

Appellant, by his answer, denied that appellee was his wife; denied that she had a right to maintain her suit for separate maintenance; alleged that she was the wife of Bobert Jones, and that the decree of divorce rendered in the circuit court of McDonough county was void because the court had no jurisdiction over Bobert Jones, the defendant therein.

Appellant also filed a cross-bill setting up the facts put in issue by the amended bill and answer thereto, and asked for an annulment of their marriage. It is the contention of one of the parties to this suit that the marriage is valid and of the other that it is bigamous and therefore void.

The court entered an order requiring appellant to pay appellee fifty dollars with which to retain counsel, and a further payment to her of forty dollars a month alimony until the further order of the court. No question is raised as to the amount of these sums if an allowance is to be made, but it is insisted that no allowance should be made.

There is no denial of the marriage ceremony that was solemnized between the parties on June 24, 1913, but the legality of that marriage is attacked by appellant. The holding of the Supreme Court in Reifschneider v. Reifschneider, 241 Ill. 92, is conclusive of this case. The Supreme Court, in that case, said: “The marriage ceremony being admitted and only the legality questioned, the court was justified in allowing temporary alimony. It is no objection to the allowance of alimony pending the wife’s bill for separate maintenance that the husband denies the facts alleged by her. The court may, if it deems necessary, enter into a sufficient examination to determine the food faith of the complainant in exhibiting her bill, which will ordinarily be confined to an inspection of the pleadings. Harding v. Harding, 144 Ill. 588; and Cooper v. Cooper, 185 Ill. 163.”

We cannot say that it is clear that the parties hereto are not legally married. The validity of the marriage is a disputed question to be litigated in this case, and we cannot prejudge it on an application for temporary alimony, solicitors’ fees and suit money. We deem the marriage ceremony sufficient prima facie proof under the circumstances in this case, and the validity of the marriage must be reserved for determination upon the final hearing. The very object of requiring the payment of temporary alimony, solicitors’ fees and suit money is to provide appellee with means to present her case fully to the court. Appellant owes her this duty on account of having gone through the marriage ceremony with her, even though it may transpire upon a ^hearing that such marriage so solemnized was void.

The decree entered in the circuit court is affirmed.

Decree affirmed.


text:
    James Isaac Moore, Appellee, v. The Wabash Railway Company, Appellant.
    1. Master and servant, § 133

      —what is duty of master as to place of worh. A master must use reasonable care to furnish his servants with a reasonably safe place for the performance of his work and he is liable for the negligent performance of such duty whether he undertakes its performance personally or through another person; and the question of his exercise of such reasonable care is for the jury.
    2. Master and servant, § 133*—when act of servant is in line of duty. In removing a box of explosives from along the tracks, a railroad patrolman was performing a duty the defendant railroad owed the freight conductor of a train who was on the caboose of his train in the yards and sustained injury by the explosion of the contents of a box while the same was on the platform where it had been placed by the patrolman; and such patrolman was within the line of his duty in placing the box where he did.
    3. Master and servant, § 110*—when negligence is proximate cause of injury. In an action by a conductor against a railroad company for injuries sustained through the explosion of the contents of a box which defendant’s patrolman had found along the tracks and placed on the platform of the caboose of a train standing in the yards and near where plaintiff was seated, it was not necessary that defendant or. its patrolman should have foreseen the exact consequences, and the jury properly found that defendant was guilty of negligence and that such negligence was the proximate cause of plaintiff’s injury.
    4. Master and servant, § 152*—when railroad is liable for negligence. A railroad company was liable for injuries sustained by a freight conductor who, while seated on the steps of the caboose of his train which was standing in the yards, was injured through the explosion of the contents of a box which defendant’s patrolman had found along the tracks and placed on the platform of the caboose.
    5. Master and servant, § 133*—what duties of master are nondelegable. The duty of a master to use due care to furnish a reasonably safe place for his employee to work in is a nondelegable duty of which the master cannot absolve himself by delegating it to another.
    6. Commerce, § 4*—what constitutes interstate commerce. A conductor was engaged in interstate commerce, where he had taken a train containing interstate shipments from Springfield to Decatur and was on continuous service until his return to Springfield, and where at the time of the injury in question he was at work about the caboose of a train standing in the yards and had received a call to take a train containing interstate cars to Springfield and was making necessary preparations to do so.
    7. Limitation of actions, § 62

      —what change of parties does not affect action. Where the pleadings and the sheriffs heturn were amended, in a personal injury case, by changing the name of Wabash Railroad Company to Wabash Railway Company, and where the sheriffs return by virtue of such amendment showed that defendant was served within 2 years after the injury occurred, the error in name was merely a misnomer of which defendant could have availed itself by plea in abatement, and its failure to do so waived any claim of the statute of limitations.
    Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Allen, Humphrey & Converse, for appellant; N. S. Brown, of counsel.
    T. J. Condon and Robert H. Patton, for appellee.

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

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

   Mr. Presiding Justice Waggoner

delivered the opin- ■ ion of the court.

Appellee brought an action on the case, under the Federal Employers’ Liability Act, against The Wabash Railway Company to recover damages for personal injuries sustained. At the close of appellee’s evidence and at the close of all the evidence, the court denied appellant’s motion to direct a verdict. The jury returned a verdict of $10,000 for appellee, and a judgment was rendered thereon.

Appellant claims there was no negligence on its part; that if negligence is shown it was not the proximate cause of the injury; that its patrolman, R. A. Thomell, was not acting within the scope of his employment, and for that reason appellant is not liable for his acts; that appellee assumed the risk; that he was not engaged in interstate commerce; that the cause of action is barred by the statute of limitations and that there was error in the instructions.

Appellee was a freight conductor in the employ of appellant, lived at Springfield, Illinois, and was injured on August 15, 1917, at Decatur, Illinois. On the morning of that day he left Springfield at four thirty-five o’clock, with a train containing interstate commerce cars, arriving at Decatur about seven o’clock in the evening, and was on duty continuously from the time he left Springfield until the accident. After arriving at Decatur he made out his train reports and stayed around the yard office (as he had a right to do), talking to other employees. About eight o’clock a. m.' on making inquiry of Stephen O’Connell, an assistant yardmaster, he was told that he would get train number ninety-five at eleven-thirty a. m. out of Decatur, immediately after the arrival of train number iiinetvthree from Chicago, and that he could take the arrival of the last-named train as his time and call. O’Connell also told him that there were certain cars made up for his train on track number five.

Appellant offered evidence to show that it could not be known at Decatur what conductor would go on a train’ until called by a train caller whose custom was to call a conductor an hour or an hour and a half before a train left; that up to the time of the injury appellee had not been called; that the same caboose had been used by him for many years and would be used by him regardless of the train he was called for. On the other hand appellee and O’Connell each testified to the custom of calling conductors in the manner appellee was called in this instance and appellee testified he was called two-thirds of the time in that way and that often the caller did not go to the caboose. Appellee in the discharge of his duty took the numbers of the cars, twelve or fifteen of which were destined to Kansas City, Missouri, and entered them on the train book in his caboose. He also entered, on a form used for that purpose, the names of the brakeman and himself but not that of the engineer or fireman. He had gotten ice for water in the caboose and had caused signals to be placed on the east end of it to indicate that it was going west.

About ten o’clock a. m. when appellee was in the caboose, Thomell, a patrolman in the yards of appellant, called him to come out from the car and see if he knew what it was that he (Thomell) had found. "Appellee went out and sat down on the bottom step of one of the steps of the caboose. At that time Thornell had a box in his hand, about the size of a cake of soap, and set it on the sill of the caboose platform. The box contained caps two inches long, about the size of a lead pencil, a number of which Thomell scattered on the platform of the caboose and handed one of them to appellee. There was a white flour-like powder sifting out from it, which appellee testified looked like ammunition of some kind. Thornell had found the box inside of the track near one of the rails and it had apparently been crushed by the flange of a car wheel. The lid was gone and some of the caps were on the ground. Thomell told appellee that he would go back and see if he could find any more. Appellee said, “Here, take these with you, and if you find any more take them to the chief detective’s office and see if he can find out what they are,” but Thornell went back to look for more leaving the broken box of caps on the caboose platform. While appellee was still sitting on the car step, with a cap in his hand, a brakeman came out, knelt down behind him, and at that instant the caps exploded. Appellee’s body was burned; his right eyeball was bursted; his left eyeball was penetrated by sixteen pieces of copper and he was left blind and a nervous wreck as a result of the explosion.

Negligence has been defined as “the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a prudent and reasonable man would not do.” (Pittsburg, Ft. W. & C. Ry. Co. v. Callaghan, 157 Ill. 406, 412.) “Negligence is the opposite of care and prudence; it is the omission to use the means reasonably necessary to avoid injury to others, and is not a legal question, but one of fact to be proven like any other question.” Chicago & A. R. Co. v. Pennell, 94 Ill. 448, 455.

It is well settled that a master must use reasonable care to furnish his servants with a reasonably safe place for the performance of his work; and he is liable for the negligent performance of such duty, whether he undertakes its performance personally, or through another person. Missouri Malleable Iron Co. v. Dillon, 206 Ill. 145, 151; Metcalf Co. v. Nystedt, 203 Ill. 333, 339; and Donk Bros. Coal & Coke Co. v. Thil, 228 Ill. 233, 235-236.

The question of the exercise of reasonable care in providing a reasonably sáfq place for a servant to work is for a jury. (Stephen v. Duffy, 237 Ill. 549, 557; Milauskis v. Terminal R. Ass’n, 286 Ill. 547, 557 and Chicago City Ry. Co. v. Gemmill, 209 Ill. 638, 640-641.) Negligence is ordinarily a question of fact, and is certainly a question of fact where the evidence as to the material facts is conflicting, or where, in a conceded state of facts, a different conclusion would reasonably be reached by different minds.' It only becomes a question of law where, from facts admitted or conclusively proven, there is no reasonable chance of different minds reaching different conclusions. (Illinois Cent. R. Co. v. Anderson, 184 Ill. 294, 304.) If there is in the record any evidence from which the jury could “without acting unreasonably in the eye of the law” find that all the material averments of the declaration had been proven, then the cause should be submitted to the jury. (Libby, McNeill & Libby v. Cook, 222 Ill. 206, 212.)

We find, from the evidence in the record that it was the duty of appellant’s patrolman Thornell to have removed the box of caps found in the railroad yards. In removing the caps the appellant, through its patrolman, was performing a duty it owed appellee and other employees to use reasonable care to furnish its servants a reasonably safe place to work. When Thornell found the caps he did not know that the powder inside of them was fulminate of mercury, the most sensitive and powerful explosive known to science but he did know that they were dynamite caps. Appellee did not know the nature of the caps, but thought they were some kind of government ammunition. We cannot say that an average prudent person, knowing they were dynamite caps, would have acted as Thornell did. The jury from the evidence might as reasonably say that an average prudent person, knowing that the caps were dynamite caps, would have used more care than he did in the premises. The jury as reasonable men might have well found that while Thornell did not know the full nature of the danger from the caps, still he knew enough that an average prudent man would not have exposed appellee to danger under the circumstances disclosed by the record. In any event, we cannot say that there is no evidence fairly tending to prove the allegations of the declaration. Neither can we say that the verdict is manifestly and palpably against the weight of the evidence but on the contrary do find that the preponderance of the evidence sustains the allegations of the declaration and that the jury may well have found, as reasonable men, from the evidence that appellant failed to use reasonable care in furnishing appellee a reasonably safe place to work.

It. is not necessary that appellant, or its patrolman, be able to foresee the exact consequences in order to be liable. “Consequences which follow in unbroken sequence, without an intervening cause from the original wrong, are natural; and for such consequences the wrongdoer must be held responsible, even though he could not have foreseen the particular results, provided that by the exercise of ordinary care he might have foreseen that some injury would result from his negligence.” It would be very unreasonable to make the liability of appellant depend on the question whether the precise injury complained of and the manner of its occurrence ought to have been foreseen. (Pullman Palace Car Co. v. Laack, 143 Ill. 242; City of Dixon v. Scott, 181 Ill. 116, 119.) The jury properly found that appellant was guilty of negligence and that such negligence was the proximate cause of appellee’s injuries.

The contention that Thomell was not acting within the scope of his employment ignores the duty appellant owed appellee to use reasonable care to furnish him a reasonably safe place to work. This was a nondelegable duty, and appellant could not absolve itself by delegating it to another. (Donk Bros. Coal & Coke Co. v. Thil, 228 Ill. 233, 237.) When appellant appointed Thomell to perform this duty it became liable for the manner in which he performed it. There was rio excuse or legal reason for Thomell taking the box of caps to the caboose. He knew enough about them that as an average prudent man he should have known that by taking the caps to the caboose he rendered the place dangerous. His act was the direct cause of the injury and appellant thus failed in its duty towards appellee to use reasonable care to furnish him a reasonably safe place to work.

The doctrine of assumed risk is that the servant assumes the risks necessarily incidental to the employment. (Illinois Terminal R. Co. v. Thompson. 210 Ill. 226, 237.) This was clearly not such a risk. The doctrine of assumed risk does not relieve appellant of its duty to use reasonable care to furnish appellee a reasonably safe place to work. (McCarthy v. Spring Valley Coal Co., 149 Ill. App. 275, 279.) Assumed risk and contributory negligence are entirely different things in law, although both may arise under the facts in the same case. (Cleveland, C., C. & St. L. Ry. Co. v. Curtis, 134 Ill. App. 565, 567.) Contributory negligence is no bar in this case by virtue of the provisions of section three of the Federal Employers’ Liability Act. It could only be considered in diminishing damages and not as a bar to the action.

It is contended that appellee was not engaged in interstate commerce. He had taken a train from Springfield to Decatur that contained cars in interstate shipments and was on continuous service until his return to Springfield. At the time in question he was at work in the caboose and had just finished a report of the outgoing trip to be given to the proper official at Springfield. He had received a call, in the manner that calls were given him two-thirds of the time, to take a train containing interstate cars to Springfield and was making necessary preparations to do so. Under these facts he was clearly engaged in interstate commerce. North Carolina R. Co. v. Zachary, 232 U. S. 248; Peery v. Illinois Cent. R. Co., 123 Minn. 264.

This suit was brought against The Wabash Railroad Company. Summons was served August 13, 1919. On August 27,1919, leave was given appellee to amend the prceeipe, summons and declaration, and to the sheriff to amend his return, by changing the defendant’s name to The Wabash Railway Company, and the same was done. The sheriff’s return by virtue of such amendment now shows appellant was served with summons on August 13, 1919, which was within two years after the injury occurred. If appellant desired to claim it had been sued by a wrong name, it should have filed a plea in abatement (Pennsylvania Co. v. Sloan, 125 Ill. 72, 77), and therefore cannot successfully claim a bar of the statute of limitations. The error was a mere misnomer and was properly corrected by amendments.

The questions raised in reference to instructions in the case are no different in principle than the questions above passed upon, and for similar reasons we hold there was no error in the instructions.

The judgment rendered in the circuit court is affirmed.

Judgment affirmed.


text:
    George A. Farris, Appellee, v. Amos Messimore, Appellant.
    1. Malicious prosecution, § 10

      —what is malice. Probable cause and malice defined in an action for malicious prosecution.
    2. Malicious prosecution, § 10*—what is necessary to justify action. In an action for malicious prosecution, both want of probable cause and malice must concur, and the existence of one or the nonexistence of the other will prevent a recovery.
    3. Malicious prosecution, § 76*—when malice .is not shown. The institution of criminal proceedings for the theft of part of a harness, for the purpose of recovery of the prosecuting witness’ property and enforcing the law, was legitimate and did not show the existence of malice.
    4. Malicious prosecution, § 75*—when nonexistence of probable cause is not shown. ■ Where the record in a malicious prosecution suit warranted the belief that part of a harness in plaintiff’s possession had been stolen from defendant, that the latter was not actuated by any wrong motive in instituting the prosecution complained of, and where plaintiff did not say when, where or from whom he got the harness but simply said that he had owned it ,for 5 years; the nonexistence of probable cause was not shown.
    5. Malicious prosecution, § 77

      —when termination of prosecution is shown. Evidence in a malicious prosecution suit, that neither defendant nor any one for him, appeared before the justice at the time set for the hearing of the charge against plaintiff, and that the case was dismissed, sustained the allegation of the declaration that plaintiff was fully acquitted and discharged of the supposed offense and the prosecution wholly ended and determined, although it also appeared that defendant’s failure to appear was because the State’s Attorney had advised him that the case had been brought in the wrong county and that he should let it be dismissed.
    6. Malicious pbosecution, § 96*—when attorney’s fee is element of damage. The amount paid by plaintiff in malicious prosecution, in employing a lawyer in consequence of defendant’s wrongful act, would be an element of damage.
    7. Malicious prosecution, § 96*—what does not' prevent attorney’s fee being element of damage. The fact that one who was employed by plaintiff in a málicious prosecution suit, to defend him at the contemplated hearing before the justice upon the charge against him, was not a licensed attorney, but had been a justice and had acted for clients before justices, would not have prevented the reasonable amount paid him tor necessary services from being an element of damage. ’
    Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M Jett, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed October 27, 1920.
    Harry O. Stuttle and Lane, Dryer & Brown, for appellant.
    D. R. Kinder and George P. O’Brien, for appellee.

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

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

   Mr. Presiding Justice Waggoner

delivered the opinion of the court.

Appellant lives in Montgomery county, Illinois. On August 14, 1917, he drove a horse to the village of Sorento, in the adjoining county of Bond. While the horse was standing hitched to a rack, in such village, a part of the harness on the horse was stolen.

On January 27, 1919, appellant made a complaint before a justice of the peace, in the county in which he lived, alleging that a set of single harness had been stolen from him, and that he had reasonable grounds to believe that appellee was guilty of the offense charged. A warrant was issued on such complaint. Appellee was arrested, taken before such justice of the peace, who set the cause for hearing on February 4, 1919, and appellee entered into a recognizance in the sum of fifty dollars for his appearance. On February 4, appellant asked for a continuance on account of the absence of Fritz Weingand, a witness who had been subpoenaed, was sick and unable to attend at that time. The cause was continued until February 8, 1919, and Fritz Weingand was resubpcenaed. Appellant consulted the State’s Attorney, for Montgomery county, with reference to representing the People, and was advised by him to dismiss the case, or let it be dismissed by the justice of the peace, because the prosecution should take place in Bond, and not in Montgomery county. The State’s Attorney also told Fritz Weingánd, over the telephone, that it would not be necessary for him to attend as a witness.

On February 8, 1919, appellee, with two witnesses, appeared before the justice of the peace. Appellant did not appear. The justice of the peace dismissed the case. Appellee brought this action of trespass on the case for malicious prosecution against appellant and recovered a judgment for $850 damages.

To sustain this action it is incumbent upon the appellee to show clearly, by a preponderance of the evidence, that appellant did not have probable cause to institute the criminal prosecution against him (Ross v. Innis, 35 Ill. 487; Davie v. Wisher, 72 Ill. 262 ; Calef v. Thomas, 81 Ill. 478), and further that appellant acted maliciously in so doing. Both want of probable cause and malice must concur. (McElroy v. Catholic Press Co., 254 Ill. 290, 293.) The existence of one or the nonexistence of the other will prevent a recovery.

In Harpham v. Whitney, 77 Ill. 32, 42, the court said that: “Probable cause is defined as such a state of \facts, in the mind of the prosecutor, as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion that the per-son arrested is guilty. Bacon v. Towne, 4 Cush. (Mass.) 217. It does not depend on the actual state of the case in point of fact, but ■ upon the honest and reasonable belief of the party commencing the prosecution. * * *

“A belief of the guilt of the accused, founded on circumstances tending to show that he has committed a criminal offense, is sufficient to show probable cause. Jacks v. Stimpson, 13 Ill. 702.

“The question of malice is for the jury, and, to sustain this averment, the charge must be shown to have been wilfully false. 2 Greenlf. Ev., sec. 453; 1 Hilliard on Torts 514.

“In Williams v. Taylor, 6 Bing. 186, it is said, by Tindal, C. J., upon this subject: ‘The facts ought to satisfy any reasonable mind that the accuser had no ground for the proceeding but his desire to injure the accused. ’

“And in Mitchell v. Jenkins, 5 B. & Ad. 594, by Parke, J.: ‘ The term malice, in this form of action, is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives.’ ”

The evidence shows that Fritz Weingand, a harness maker, made for appellant a set of single harness differing in several respects from single harness as ordinarily made, Appellant testified the harness was bought by him from Weingand in April, 1917, and is corroborated by Weingand . as to ¡the purchase and identity of it. Appellant further testified that in November, 1918, he saw parts of the harness, which had been stolen from him, in appellee’s possession; that he afterwards communicated that fact to a deputy sheriff, and on January 27, 1919, made the complaint upon which a warrant was issued and appellee arrested.

Appellant caused the harness maker to be subpoenaed as a witness, and was present himself at the time set for a hearing by the justice of the peace. He applied to the State’s Attorney for his assistance and abandoned the prosecution, under the complaint made, when advised by such attorney so to do.

.. On cross-examination appellant testified that his 'purpose in having the warrant issued was to get his harness and'to enforce the law. The evidence in the record does not show that appellant, in instituting the criminal proceeding, was actuated by any improper motive. To have done so for the purpose of recovering his property and enforcing the law was legitimate and does not show the existence of malice on his part.

Appellant acted in good faith, and that “is always a good defense, on the part of a prosecutor, unless it appears that he closes his eyes to facts around him which are sufficient to convince a reasonably cautious man that no crime, in fact, has been committed by the person about to be prosecuted.” Palmer v. Richardson, 70 Ill. 544, 546.

Appellee, when testifying in his own behalf, did not say when, where or from whom he got the harness but simply said he had owned it for four or five years.

The evidence, in' the record as it now stands, warrants the belief that the harness in appellee’s possession had been stolen from appellant; [jhat appellant was not actuated by any wrong motive in instituting the prosecution] and that appellee has failed to show the nonexistence of probable cause,

Evidence that appellant, nor any one representing him/or any witness in his behalf, did not appear before the justice of the peace at the time set for the hearing of the charge made against appellee and that the case was dismissed by the justice of the peace, sustains the allegation made in the declaration that “the plaintiff was fully acquitted and discharged of the supposed offense * * * and the said complaint and prosecution wholly ended and determined” (Gilbert v. Emmons, 42 Ill. 143; 18 R. C. L. p. 23, sec. 12), and the court properly held that there was no variance between the allegations of the declaration and the evidence offered in .that regard.

If a plaintiff, in a suit for malicious prosecution, has in consequence of the wrongful conduct of the defendant been put to expense in the employment of an attorney, the amount so paid would be an element of damage in an action against the defendant arising out of such wrongful conduct. Lawrence v. Hagerman, 56 Ill. 68, 75; Krug v. Ward, 77 Ill. 603; Wheeler v. Hanson, 161 Mass. 370, 42 Am. St. Rep. 408.

Appellee employed a man named Green, as an attorney, to defend him at the contemplated preliminary hearing before the justice of the peace. Green was not a licensed attorney, but had held the office of justice of the peace, and served in the capacity of an attorney for clients before justices of the peace. If appellee had made a case that entitled him to recover, and the services of Green were necessary and the charge of ten dollars made by him reasonable, then notwithstanding the fact that he was not licensed to practice law in courts of record, the amount of such charge would have been a proper element of damage to be considered by the jury.

There are a number of errors assigned on the record which we do not deem necessary to discuss in view of the holdings above announced. -

The judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


text:
    Irene Pihl, Appellee, v. Springfield Consolidated Railway Company, Appellant.
    1. Cakbiebs, § 476

      —when evidence establishes negligence alleged. In an action by a passenger against a street car company, in which the declaration consisting of one count charged, in substance, that defendant negligently caused a pole to be thrown, pushed or dropped upon plaintiff’s head, and where defendant claimed that the charge of negligence was specific and not general and that the specific charge was not proven, the court, while not holding that the charge was not a general charge, held that, assuming it to be specific, there was ample evidence to support it.
    2. Pleading, § 458*—when question of variance is waived. The question of variance between the proof and the allegations of the declaration is waived by not specially raising the question in apt time in the trial court, and pointing out wherein the variance consisted.
    3. Tbial, § 155*—rwhen question of fact arises. In a personal injury case, where there was no direct impeachment of witnesses called by either party, and the testimony on behalf of defendant was diametrically opposed to that of plaintiff, and there were facts and circumstances tending to corroborate each side, a case peculiarly within the province of the jury was presented.
    4. Damages, § 119*—when verdict for personal injuries is not excessive. A verdict for $1,200 was not excessive in an action by a woman passenger of a street car who was struck by a pole, where plaintiff was troubled with dizzy spells, fainting and sickness in the stomach, and where after several days a fractured skull was discovered, and where about 4 months after the accident she had an attack of dizziness and was again taken to a hospital .and stayed there for a week, and where the dizziness still continued at the time of the trial.
    Appeal from the Circuit Court of Sangamon county; the Hon. Elbebt S. Smith, Judge, presiding. Heard in this court, at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    P. B. Warren, A. M. Fitzgerald and W.-A, Ruegg, for appellant.
    T. W. Quinlan and A. F. Bernard, for appellee.

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

   Mr. Presiding Justice Waggoner

delivered the opinion of the court.

Appellee, Irene Phil, brought an action on the case against appellant, Springfield Consolidated Railway Company, for damages sustained on account of injuries received while a passenger on a street car operated by that company in Springfield, Illinois, and recovered a judgment for $1,200.

The negligence charged, in a declaration of one count, is that “the defendant or its servants carelessly and negligently caused a pole of great weight, of the weight of, to wit: ten pounds, to be violently and forcibly thrown, pushed and dropped upon the head of the plaintiff.”

On September 1, 1919, appellee and her mother left their home about noon and walked to the grounds where a circus was showing. They each testified that about half-past two o’clock, in the afternoon, as the show was commencing they started to go back up town, and are corroborated in their testimony by W. J. G-etzwiller, who was running a refreshment stand. One of appellant’s open summer street cars stopped on Eleventh street opposite the show grounds and about thirty feet from W. J. G-etzwiller’s stand. The car, when it stopped, was headed north. The conductor turned the trolley pole to go south towards the city. The motorman took the controller handles and walked on the west side of the car from the north to the south end preparatory to the return trip. Appellee’s mother testified that the conductor called out, “Car ready for town,” and that she and her daughter were the only persons who boarded the car at that point; that the guardrail on the west side was down; the one on the east side was up; that she boarded the car on the east side about four or five seats from the south end, and that her daughter was following her when the motorman or conductor “left the side railing down on toil of her (the daughter’s) head.” Appellee testified that she helped her mother onto the car; that she then Stepped up, and as she was standing on the second step holding to the side of the ear, going into the car, the guardrail fell on her head. Appellee further testified that the motorman was at the front (or south) end of the car “tinkering” with the guardrail, and “left the side railing fall” on her head.

While the injury was quite painful at the time, appellee and her mother did not think it serious. Appellee was troubled with dizzy spells, fainting and sickness at the stomach, and on September 5, 1919, Dr. D. H. McCarthy was called and found her suffering severe pain and found a slight swelling at the top of her head. Even then the doctor did not consider the injury serious. He left a prescription. The doctor was summoned again in two or three days, and then, after receiving a history of the injury, took appellee to a hospital; had an X-ray picture taken which showed that her skull was fractured. She was put to bed and an ice pack was put on her head. The' swelling disappeared but she has since suffered pain and dizziness. In December, following the accident, dizziness attacked her and she fell down stairs. She was again taken to a hospital, was there a week, and the dizziness has not completely left her.

Appellant called, as witnesses, a motorman and conductor, both of whom testified that the accident occurred at about half-past four o’clock in the afternoon, just as the show was out. They also testified that they let the guardrail down, on the east side, two blocks before arriving at the point in question, when they raised the west-side guardrail. They further testified that a large crowd boarded the car. The conductor said about eighty women got on. They do not know how the accident happened but both deny letting the guardrail fall on appellee’s head. Appellant produced two witnesses who claimed to be standing by at the time and to have seen the accident that occurred at half-past four o’clock but were not "able to identify appellee as being the person injured. The inference, from the testimony of one of these witnesses, is that a number of persons were crowding under the rail on the wrong side and that one woman dropped it on the bead of another woman. The inference, from the testimony of the other, is that a woman was crawling under the rail and bumped her head. Appellee and her mother, on rebuttal, both testified that the conductor and motorman, who had been called as' witnesses, were not in charge of the car on which appellee was injured.

Appellant argues that the charge of negligence is a specific and not a general charge of negligence; that the specific charge made has not been proven, and in arguing that point ignores everything contrary to its contention, considering only sucb parts of the evidence as supports that theory. It is true, there is evidence tending to support appellant’s theory, and there is also ample evidence tending to support appellee’s theory and the charge made in the declaration. The testimony of appellee, her mother and W. J. Getzwiller clearly and plainly supports the charge as made in the declaration. We do not hold that the charge in the declaration is not a general charge of negligence, but do hold that assuming it to be a specific one there is ample evidence in the record to support it.

Further, appellant has waived any supposed variance between the proof and the allegations of the declaration by not specifically raising that question in apt time in the trial court and pointing out wherein the variance consisted. (City of Chicago v. Bork, 227 Ill. 60, 62-63.) The salutary effect of the rule of waiver is evident when it is remembered that if there was any merit in this highly technical objection it could have been easily obviated by an amendment if it had been raised in the trial court by an objection specifically pointing it out. (Chicago City Ry. Co. v. McClain, 211 Ill. 589, 594.) In the last-named case, quoting from City of Joliet v. Johnson, 177 Ill. 178, the court said: “It is well settled that an objection alleging variance between the allegations and proofs must be made in the trial court, in order to afford an opportunity to the plaintiff to airiend the declaration. Such objection should properly be made at the time the evidence is offered, otherwise it will be waived.”

The criticism of the fourth instruction, given for appellee, is not well founded. It is substantially the same as the instruction approved, by the Supreme Court, in Chicago Union Traction Co. v. Newmiller, 215 Ill. 383, 388-389.

There is no direct impeachment of witnesses called by either party. The testimony of the witnesses, on behalf of appellant, is diametrically opposed to that of appellee. There are facts and circumstances, shown by the record, tending to corroborate each side and thereby presenting a case peculiarly within the province of a jury to determine what the truth is, and we would not be justified in setting aside the verdict on the ground that it was manifestly against' the weight of the evidence.

The damages awarded are not excessive.

We find no reason for reversing the judgment of the lower court and therefore affirm it.

Judgment affirmed.


text:
    Fred R. Bell, Appellant, v. H. R. McDonald et al., Appellees.
    1. Pleading, § 200

      —what is effect of demurrer. A plaintiff by-failing to demur, and on the contrary filing a replication to special pleas in an action on a note, admitted the pleas to be good in law and raised an issue on the facts alleged, and therefore could not be heard to complain in the Appellate Court that neither of the pleas set forth a defense.
    2. Pleading, § 102*—what is effect of special plea. Where a case was tried twice on the theory that special pleas presented good defenses, and where instructions were given to both parties in reference thereto, and on the second trial it was stipulated that such pleas were to stand to the amended declaration', only questions of jurisdiction of the subject could subsequently be raised upon such pleas.
    3. Appeal and error, § 1710*—when objections to pleas are waived. Objections to written pleas, not enumerated among the points set up in a written motion for new trial, were waived.
    4. Evidence, § 265*—when evidence based on memoranda is proper. Where in an action on a note, defendant sought to show that the consideration for the notes had failed, and where plaintiff denied having had any such conversation, it was error to refuse to permit the telephone operator, who took calls during that month and made memoranda thereof, to answer a question as to whether from an examination of her memoranda and accounts, plaintiff called defendant during the said month.
    5. Evidence, § 265*—what evidence based on private memoranda is proper. Objection to the introduction of memoranda of telephone accounts, in an action on a note, was improperly sustained, where the attorney merely stated “they are objected to,” where such memoranda were relevant on the question whether plaintiff received notice before maturity as to defenses, and were competent because the witness had identified them as being in her handwriting and correct.
    Appeal from the Circuit Court of Vermilion county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed October 27, 1920.
    M. F. Keegan and Walter T. Gunn, for appellant.

      Acton & Acton and J. M. Boyle, for appellees.

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

   Mr. Presiding Justice Waggoner

delivered the opinion of the court.

At the October term, 1915, of the circuit court of Vermilion county, appellant took judgment by confession against appellee H. B. McDonald on two judgment notes, each for the principal sum of $1,400, bearing interest at the rate of seven per cent per annum, dated May 27, 1915, due in five and six months, respectively, after date. The notes were executed by H. B. McDonald, payable to the order of Pioneer Stock Powder Company, and were indorsed by such company together with A. G-. Litson.

An order was afterwards entered, by the court, opening the judgment and giving leave to file pleas. In pursuance of such leave appellee H. B. McDonald filed pleas of the general issue, breach of warranty, failure of consideration and want of consideration. Beplications were filed to the special pleas and issues were joined thereon. The case was tried before a jury, which returned a verdict in favor of appellee H. B. McDonald. Judgment was rendered on the verdict. Fred B. Bell brought the case, by appeal, to the April term of this court, and such judgment was reversed and the cause remanded.

After the case had been redocketed, in the circuit court, an amended declaration was filed in which Pioneer Stock Powder Company and A. G-. Litson were made defendants; the plea of general issue was withdrawn, and by agreement of parties the special pleas, replications and rejoinders at that time on file, were “to stand to the amended declaration. ’ ’ The additional defendants were defaulted and a second trial of the case had, which resulted in a judgment in favor of H. B. McDonald.

Appellant claims that the second judgment should be reversed for the reasons, (1) that neither of the special pleas set forth a defense; (2) that the court erred in excluding evidence offered for the purpose of showing that appellant had no telephone conversation, in reference to the notes, with appellee H. E. McDonald, and (3) that the verdict is against the weight of the evidence.

Appellant did not demur to either of the special pleas and thereby give the trial judge an opportunity to pass upon their sufficiency in law, but filed replications thereto, and by so doing admitted the pleas to be good in law and raised an issue on the facts alleged. Garden City Sand Co. v. Christley, 289 Ill. 617, 622.

Furthermore, this case has been twice tried in the circuit court, and once in this court, on the theory that such pleas presented good defenses, instructions were given, by both parties, in reference thereto, and on the second trial it was stipulated, as above stated, that the special pleas were to stand to the amended declaration. Where parties agree that pleadings are sufficient they cannot afterwards raise any question upon them except the question of jurisdiction of the subject. Farmers’ Loan & Trust Co. v. Canada & St. L. R. Co., 127 Ind. 250, 11 L. E. A. 740, 741.

No reference is made to the pleas in appellant’s written motion for a new trial nor in the assignment of errors upon the record, but their sufficiency is questioned for the first time in the statement of points relied upon for a reversal of the judgment. Where a party files a written motion for a new trial he will be held to have waived all causes therefor not set forth in the written motion. Erikson v. Ward, 266 Ill. 259, 266, and this court will only consider such matters as are assigned, as error, on the record.

We do not hold that the special pleas are good, but do hold that, for the reasons above indicated, the question of their sufficiency cannot be raised at this time.

Appellant paid $2,473.20 for the notes on August 24, 1915, before the maturity of either of them, and the defenses sought to be proven, by appellee, would be of no avail unless appellant bought the notes with notice of the existence of the defenses set up in the special pleas, and the burden of proving such knowledge, on the part of appellant, was upon appellee H. R. McDonald. Bemis v. Horner, 165 Ill. 347.

Appellee testified that on August 10, 1915, a man called him over the telephone and said his name was Bell; that the only way he (appellee) had of knowing it was appellant was from what the man said and his voice; that it was the voice of Fred Bell; that he had never talked with Fred Bell over the telephone before and never had had any business transactions with him. Appellee further testified that he told the person to whom he talked, over the telephone, not to buy the notes unless he wanted to buy trouble; that the stock powder was no good and that the notes were not to be sold.

Appellant denied having had a conversation over the telephone with H. B. McDonald on August 10, 1915, or at any other time. His testimony, in reference to this matter, was directly opposed to that of H. B. McDonald. Any competent testimony offered in corroboration of either of these parties should have been admitted in order to enable the jury to correctly determine whether or not such conversation took place. If the conversation was had it was over a line of the Cadwallader Telephone Company and through an exchange at Pence, Indiana, where Lena Woody was the only telephone operator in charge of the switchboard and was also bookkeeper for the company, at that place, during August and September, 1915.

As such bookkeeper Lena Woody kept the accounts of Fred B. Bell, and the Ban]? of Pence in which he was cashier, with the Cadwallader Telephone Company. She was called as a witness in behalf of appellant and testified that she had no recollection in reference to any telephone call having been made by appellant on the date in question. She was then shown statements of the accounts of the Bank of Pence and Fred R. Bell, with the Cadwallader Telephone 'Company for the months of July, August and September, 1915, which did not show a telephone call, on either account, on August 10, or at any time to H. R. McDonald. She testified that the accounts were correct and that she made them from tickets made when calls were made. She was also shown the account of the same parties in a book of the telephone company and then asked from an examination of the books and statements, above referred to, whether or not Fred R. Bell called H. R. McDonald over the telephone during the month of August, 1915. Appellee objected to the question on the grounds that “she had not refreshed her recollection from those tickets made at the time,” and the court says: “No, they are not memorandums made at the time. The objection is sustained.” The objection interposed was not well taken. If appellant made no call on August 10,1915, what memorandum would have been made? There is no claim made, or any evidence to indicate, that any memorandums were made on August 10, in reference to which either party had any connection. If no other objection was interposed the evidence should have been admitted.

This witness was called, not for the purpose of showing that a telephone call was made, in which event there would be some memorandum of it, but in an effort to establish, as being a fact, that no call was made and in that way to corroborate the testimony of appellant.

After the ruling of the court in sustaining the objections to the question asked this witness, appellant offered in evidence the accounts of himself and the Bank of Pence with the Cadwallader Telephone Company for the months of July, August and September, 1915, which do not show a call made to H. R. McDonald. The only objection interposed was the statement of an attorney for appellee that “they are objected to,” and such objection was sustained. By this general objection relevance and competency of the evidence offered were all that was challenged. It was relevant to the determination of the question in dispute as tending to support appellant in his contention that he bought the notes in question without notice of the defense set up in the special pleas, and competent, as the witness testified that the entries in the book and on the statements were in her handwriting and were correct.

The court erred in sustaining the objections made to the admission of this evidence and the judgment rendered must be reversed.

Reversed and remanded.


author: Mr. Justice Eldredge

text:
    Katherine Kelly O’Connell et al., Defendants in Error, v. Thomas D. Heed, Receiver of Chicago & Eastern Illinois Railroad Company, Plaintiff in Error.
    1. Adverse possession, § 25

      —when railroad, is not trespasser. Under the rule that the use and occupation of a strip of land by a railroad company by constructing and maintaining a switch track thereover with the acquiescence of the owner of the land for 15 years, implied an oral license from the owner to such use and occupancy, the company in question did not become a trespasser upon the land in question by laying tracks and switches which' were connected with the main line and used in connection with a coal mine in which a brother of plaintiffs’ deceased father was interested, where neither .the decedent for about 7 years before his death, nor plaintiffs for 8 years after his death, ever objected in any form; and therefore the improvements in the nature of ties and rails placed upon the land did not become a part thereof, and neither decedent nor those who took under him obtained any title thereto, and plaintiffs were not entitled to recover from defendant the value of such improvements after their removal.
    2. Estoppel, § 50*—when estoppel arises. Estoppel may arise from silence as weU as words where there is a duty to speak and the party on whom the duty rests has an opportunity to speak and, knowing the circumstances, keeps silent.
    Error to the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed with finding of facts.
    Opinion filed October 27, 1920.
    H. M. Steely and H. M. Steely, Jr., for plaintiff in error.
    Actor & Actor and Crayton & Boyle, for defendants in error.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

This suit was brought by the defendants in error as the daughters and heirs at law of William Kelly, deceased. The action is in trespass and charges that on November 18, 1917, plaintiff in error with force and arms broke and entered the close of the defendants in error and took, carried away and converted to its own use railroad rails and railroad ties of the value of $5,000. The trial resulted in a verdict and judgment in favor of defendants in error for the sum of $1,800.

William Kelly and Michael Kelly were .brothers and each owned or operated a coal mine in the vicinity of the City of Danville and the Village of Grape Creek. Michael Kelly had organized a coal company known as the Kellyville Coal Company, and in the year 1902, he, or the Kellyville Coal Company, desired to sink a coal shaft on some land owned by him, or the Kellyville Coal Company, and for the accommodation of this shaft he, on behalf of the Kellyville Coal Company, proposed to the Chicago & Eastern Illinois Railroad Company that he, or the said coal company, would procure the right of way and build the grade and a bridge across Grape Creek, if the railroad company would construct thereon the necessary railroad tracks to accommodate the traffic to and from said mine. The ■railroad company accepted this proposal, and thereupon Michael Kelly, or the Kellyville Coal Company, constructed the grade and the bridge, after which the railroad company laid the necessary tracks, switches and switch stands thereon and connected the switch tracks with its main line and these tracks were used in connection with the business of the mine for many years. In 1911, however, the Kellyville Coal Company ceased to mine coal but the pumps at the shaft were kept going and the railroad company hauled coal over the tracks to the shaft until October, 1912. This coal was used by the Kellyville Coal Company for the purpose of keeping up steam in the boilers which ran the pumps. From that time until November 17, 1917, the tracks were used by the railroad company for storing bad order cars. In November, 1917, the world war. being in progress and all operations at this mine having ceased, and owing to the scarcity and great demand for rails and ties, defendant in error removed the rails and a portion of the ties, whereupon this suit was brought by the heirs of William Kelly who died in March, 1909. '

It appears from the evidence that the switch tracks in question in extending from the main track of the railroad company to the shaft, for a short distance passed over some land owned by William Kelly in his lifetime, and this suit is based upon the theory of defendants in error that William Kelly, their father, in his lifetime never consented or granted to Michael Kelly or to the railroad company the right to construct the tracks across his land and that when the railroad company and Michael Kelly, or the Kellyville Coal Company, built the grade and tracks thereover, they thereupon became trespassers; that the rails and ties therefore became a .part of the real estate then owned by William Kelly and upon his death became the property of the defendants in error, and, consequently, the railroad company had no right to remove the same and defendants in error are entitled to the value thereof.

The evidence conclusively shows, and there is no contention to the contrary, that neither William Kelly in his lifetime nor the defendants in error since his death ever objected in any form to the construction and maintenance of said track over the land of William Kelly. The railroad company had no knowledge that William Kelly owned, or claimed to own, any of the land over which the track was constructed except a constructive knowledge implied from the record title thereof. There is evidence that William Kelly was present several times during the construction of the grading and the tracks and that at one time he complained to his brother, Michael Kelly, that the bridge across the creek was not properly constructed and suggested an alteration thereof. William Kelly lived for 7 years after the tracks were laid and never by word or act objected thereto. For over 8 years the defendants in error had had title to the land in question and had permitted the use of these tracks without protest. Thus for over 15 years these tracks had been used and operated with the acquiescence of William Kelly and defendants in error, his heirs.

If William Kelly knew that his brother had constructed the grade over a part of his land and had built the bridge for the purpose of having the switch tracks connect the Kellyville Coal Company shaft with the main line of the railroad company, and knew that the railroad company would lay its tracks over said grade, then it was his duty to protest and assert his rights at the time. It is claimed by defendants in error that their father knew nothing about the construction of this track until after it was completed, and introduced certain testimony given by him in another case involving another matter, wherein he so testified. If this fact, which is beyond the realm of probability, be conceded, yet he acquired this knowledge in any event after the construction of the tracks, and it was his duty to assert his rights within a reasonable time after obtaining such knowledge. In Milligan v. Miller, 253 Ill. 511, it was said: “Estoppel may arise from silence as well as words where there is a duty to speak and the party on whom the duty rests has an opportunity to speak, and, knowing the circumstances, keeps silent. * * * It is the duty of a person having a right, and seeing another about to .commit an act infringing upon it, to assert his right. He cannot by his silence induce or encourage the commission of the act and then be heard to complain.”

The use and occupation of a strip of land by a railroad company by constructing and maintaining a switch track thereover for railroad purposes with the acquiescence of the owner of the land for a period of 15 years will imply an oral license from the owner of the land td such use and occupancy. This being the rule of law, the railroad company did not become a trespasser and the improvements in the nature of ties and rails placed upon the land did not become a part thereof and neither William Kelly nor those who took under him obtained any title thereto. Howe v. South Park Com’rs, 119 Ill. 101; Noble v. Illinois Cent. R. Co., 111 Ill. 437; Ellis v. Rock Island & M. C. R. Co., 125 Ill. 82. A railroad company has the right to enter and remove rails laid by it upon the lands of another under a parol license. Chicago & A. R. Co. v. Goodwin, 111 Ill. 273; Ellis v. Rock Island & M. C. R. Co., 125 Ill. 82.

Other questions have been' raised on this appeal which, from the view we have taken, need not be discussed. The judgment of the circuit court is reversed and the clerk of this court is instructed to embrace in the judgment herein the finding of the following ultimate facts: The court finds as ultimate facts that William. Kelly in his lifetime had knowledge of the construction and maintenance of the switch tracks in question and acquiesced in the construction and maintenance thereof for a period of 7 years and until his death; that his heirs at law, the defendants in error, had knowledge of the maintenance of said tracks at the time of William Kelly’s death and acquiesced in the same for over 8 years thereafter.

Reversed with finding of facts.


text:
    John Harmon, Defendant in Error, v. Minnie Starbody, Plaintiff in Error.
    1. Parent and child, § 3

      —when parent is entitled to custody of child. A man who was a fit person to have the custody of his little daughter was entitled to obtain possession of such child from his sister, where at the time of the death of such man’s wife she left three girls, the two oldest of whom, aged 12 and 10 years, were in a good children’s home, and where the child in question, who was but a few months old at the mother’s death, had first been- placed with the others until she was about 11 months old, and where thereafter she was placed in said sister’s care and defendant had paid board for the child’s keep, and desired to place her at said children’s home with her sisters.
    2. Parent and child, § 5*—when parent will he deprived of custody of child. It is only in extreme and special cases where the parent is unfit or unable to give the proper care to his children that the court will taken them from such parent.
    Error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    La Forgee, Black & Samhels, for plaintiff in error.
    Clive C. Martin and Lawrence C. Wheat, for defendant in error.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

J ohn Hannon, defendant in error, and Minnie Star-body, plaintiff in error, are brother and sister, and this is a proceeding in habeas corpus brought by the former to recover the possession of his minor child, Grace Harmon.

John Harmon resides in the City of Cincinnati, Ohio, and is a machinist by trade. While he was living in that city his wife died leaving three minor children, all of whom are girls. Elizabeth, the oldest, is now about 12 years of age, Sadie about 10 years of age and Grace, the youngest, about 7 years of age. When her mother died, Grace Harmon was a baby but a few months old. J ohn Harmon at that time being unable to personally take care of and look after his three girls attempted to place them in the Methodist Children’s Home at Worthington, Ohio. The two older children were received by the Home but it was not equipped to -- take care of the baby, Grace, and it was suggested by the officers of that institution that he have Grace taken care of in some other manner until she was 2 years of age. He thereafter, when Grace was 11 months old, took her to his sister, plaintiff in error, who had agreed to take care of her and who has done so ever since that time. John Harmon has paid his sister $50 every 3 months for the care of Grace. He has paid the Methodist Children’s Home $480 a year for the care of Elizabeth and Sadie. When Grace became 2 years of age, he sought to place her also in the Home with her sisters but plaintiff in error objected and has retained possession of the child until the present time. The evidence shows that the Methodist Children’s Home is an institution where the greatest care is taken of children and where they have every advantage that is usually found in such institutions. The children living in the Home attend'the public schools of Worthington, and Elizabeth is now attending the High School in that city. It is John Harmon’s desire to have his three daughters together and that G-race should have the love and companionship of her older sisters.

It is insisted by plaintiff in error that the best interests of Grace require that she be left in the possession of the former. We cannot agree with this contention. So far as this record shows, John Harmon is a fit person to have the custody of his children. It is highly important for his child, Grace, to have the benefit of the affection and companionship of her older sisters, who, in a few years, will be able to take care of their father’s home and the family can again be reunited. We cannot see wherein it would be of advantage to Grace to be brought up' isolated from her father and her sisters. That a parent has the right to the custody of his children against all the world, unless he has forfeited that right or the welfare of the child demands that he should be deprived of it, is a fundamental principle which has been long and firmly established. The home is the foundation of society and civilization and only in an extreme and special case where the parent is unfit or unable to give the proper care to his children will the court take them from him. Sullivan v. People, 224 Ill. 468; Hohenadel v. Steele, 237 Ill. 229; Cormack v. Marshall, 211 Ill. 519; section 4, ch. 64, Rev. St. (J. & A. f[ 6001); 21 Cyc. 63; Stafford, v. Stafford,, 217 Ill. App. 548.

A suggestion is made which questions the jurisdiction of the circuit court to entering the order appealed from. There is no assignment of error in this regard on the record and no such question was raised in the court below. However, we have examined the point raised and find it without merit.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    Annie Besserman, Administratrix of Estate of Steve Besserman, Deceased, Defendant in Error, v. Walker D. Hines, Director General of Railroads, Plaintiff in Error.
    1. Railroads, § 690

      —when contributory negligence prevents recovery for injuries. The fact that the statute makes the running of a railroad train through a municipality at an unlawful rate of speed prima facie negligence, and that therefore the running of the train in question, in an action for the death of plaintiff’s intestate who was killed while riding in an automobile which was crossing defendant’s railroad at unlawful speed, was presumed to be negligence, did not give plaintiff the right to recover where the decedent was guilty of contributory negligence.
    2. Railroads, § 659*—what constitutes contributory negligence. Where plaintiff’s intestate, an adult, while intoxicated, had crowded with three other intoxicated men into a small inclosed automobile, at night, and knew that the car could not he operated efficiently by its inexperienced drunken driver, he was guilty of contributory negligence which precluded' recovery, where a whistle was blown and the train and crossing bells were rung while the train in question, with its headlight visible for miles, was approaching the village crossing at a rate of speed in violation of the statute.
    Error to the Circuit Court of Macoupin county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed with finding of fact.
    Opinion filed October 27, 1920.
    Patton & Patton, for plaintiff in error; William L. Patton, Henry L. Patton and Silas H. Strawn, of counsel.
    Thomas Rinaker and James H. Murphy, for defendant in error.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

This is a writ of error sued out to reverse a judgment of the circuit court of Macoupin county for $2,000 rendered in an action on the case by defendant in error against plaintiff in error as damages for the death of one Steve Besserman, who was killed in a collision between an automobile in which he was riding and the engine of a passenger train at a street crossing in Nilwood, Illinois, at about 11 o’clock on the night of Saturday, March 30, 1918.

The declaration contained three counts. The issues presented by the third count only were permitted by the trial court to go to the jury. This count charges that while Steve Besserman with due care was riding across the railroad of the Chicago & Alton Railroad Company at a street crossing in the Village of Nilwood, the plaintiff in error negligently drove a passenger train across said street at a rate of speed in violation of an ordinance limiting the same to 10 miles an hour, whereby the automobile was struck and Besserman was killed.

The Chicago & Alton Railroad runs northeasterly and southwesterly through the Village of Nilwood and crosses Morean street at right angles about 100 feet north of the railroad depot. On the north side of the crossing is an electric automatic alarm signal which begins to ring when the circuit is closed by an approaching train at a point over 2,000 feet south of the crossing and keeps ringing continuously until after the train has passed over the crossing. Nilwood is a small village of about 400 inhabitants and is not thickly built up in the neighborhood of this railroad crossing. There is an open space south of Morean street to the depot of 100 feet or more on which there are no obstructions of any kind. There is a shop and also a store on the south side of the street east of the tracks with an open space of about 60 feet between them. This open space is 70 feet east of the tracks. The Village of Carlinville is from 6 to 8 miles from Nil-wood and the tracks run perfectly straight between these two points over a flat country so that an electric headlight of a locomotive, as it leaves Carlinville can be seen by a person standing on or near the track at the crossing in question in Nilwood. The proofs show that the passenger train in question at the time of the accident was running at a speed of 35 miles an hour or more, also that there was an ordinance of the Village of Nilwood limiting the speed of such trains through the village to 10 miles per hour.

On the day in question, one John Heslop, who lived in the town of Virden, bought in the City of Springfield a one-seated inclosed (or coupé) Ford automobile. He had never owned or operated an automobile before and he had hired a boy to drive the car for him as far as Thayer, a village about 2 miles north of Virden. The boy drove the car past the Village of Auburn, which is 3 or 4 miles from Thayer, from which place Heslop drove it to Thayer. At Thayer, the boy left Heslop and the latter ran the car to Virden, a distance of about 2 miles, and arrived at the latter .place about 5 o’clock in the afternoon. From that time until about 11 o’clock at night Heslop drove the car about Virden and back to Thayer and back again to Virden, and spent the time in giving his friends rides in his new car. The greater weight of the evidence shows that frequent stops were made by Heslop and his friends at the different saloons in Virden and Thayer and that at 10:30 o’clock that night Heslop, Besserman and also two men named Hammond and Fyfq were intoxicated. While in a drunken condition in one of the saloons in Virden, they were talking about going to Benld and Gillespie, towns south of Carlin-ville. These four men left the saloon and Heslop had a gunny sack containing a dozen bottles of beer which he brought from the saloon and put into the car. Heslop, Hammond and Fyfe got into the car and there was some altercation between them and Besserman in which Besserman insisted upon also getting in and the other three tried to keep him out, but finally Bes serman got into the coupé with the other three men. About 11 o’clock, they reached the Village of Nilwood and were seen going towards the railroad crossing “hollering and singing.” A few minutes later they were struck by a northbound passenger train at the crossing. The only eyewitness to the accident was the engineer on the engine who testified that when his engine was passing the south end of the depot, he saw the automobile going onto the track and that he immediately shut, off the steam and applied the emergency air brake, but the train could not then be stopped in time to avoid the collision.

The evidence is conclusive that all the statutory signals were given by the approaching train. Several disinterested witnesses testified that the whistle was blown and that the bell was' rung and the automatic bell at the crossing was also ringing and several of such witnesses testified that the noise of the approaching train was distinctly heard as it was a cold, clear, still night. The engine struck the automobile and the ' four men therein were instantly killed. After the accident, the gunny sack was found saturated with beer with the broken bottles therein, also, two broken whisky bottles were found. The statutes of this State make the running of a railroad train through a municipality at an unlawful rate of speed prima facie negligence, and it must be presumed that the servants of plaintiff in error, in running the train in question through the Village of Nilwood at a speed greater than that prescribed by ordinance, were guilty of negligence. Besserman, however, was charged with the exercise of due care for his own safety, and if he was guilty of contributory negligence, defendant in error cannot recover in this case. Flynn v. Chicago City Ry. Co., 250 Ill. 460.

The Ford coupé was a small inclosed car and was constructed to carry two persons only. Heslop, its driver was inexperienced and intoxicated and Fyfe and Hammond also intoxicated as well as Besserman. Those four grown men, all of whom were intoxicated, crowded into this small Ford coupé together with a gunny sack of beer and started on their journey. Besserman knew that his companions were intoxicated, that the small inclosed car could not be operated efficiently/crowded as it was and driven by a drunken inexperienced driver. While, ordinarily, the negligence of. the driver of a vehicle cannot be imputed to a passenger therein, yet, from the facts in this case, all men in this coupé were guilty of negligence in permitting themselves to ride therein under the conditions and in the manner mentioned. South Chicago City Ry. Co. v. Dufresne, 200 Ill. 456; Johpson v. Galesburg & K. Elec. Ry. Co., 193 Ill. App. 387. If either one of them had used, or was in a condition to have used, either of their senses of sight or hearing, he could not have failed to have known of the approaching train and the accident could have been avoided regardless of the speed thereof.

The judgment of the circuit court is reversed and the clerk is directed to embrace in the judgment of this court a finding of the following fact: The court finds as an ultimate fact from the evidence that Steve Besserman was guilty of negligence which contributed to his death.

Beversed with finding of fact.