text:
    John Tijan, Appellee, v. Illinois Steel Company, Appellant.
    Gen. No. 5333.
    1. Evidence-—when admission of substantive will not reverse. To permit an injured member to be exhibited to the jury is discretionary with the court and unless an abuse of that discretion is shown a reversal will not be awarded.
    2. Evidence—what competent to ash unfavorable witness called by party. It is proper to ask a witness whom a party has called and who has appeared unfavorable, not by way of impeachment but to refresh memory and awaken conscience, as to statements made by him to the opposite party.

      3. Evidence—when admission of improper will not reverse. In the absence of objection made in the trial court the admission of improper evidence will not reverse.
    4. Trial—practice where evidence is admissible for some and not for other purposes. In such a case the proper practice is to request that the evidence in question be restricted to the particular purpose for which it is competent.
    5. Verdicts—when not excessive. Held, in an action on the case for personal injuries that a verdict of $18,066, was not excessive where it appeared that the plaintiff, prior to the accident, was a man 25 years of age, strong, healthy and earning from two dollars to $2.40 per day and that as a result of the accident his head was crushed, his jaws broken in three places so that they had to be wired together, his teeth loosened so that he could not eat meat or hard food, his spine twisted, three ribs broken on one side and four on the other, one lung solidified, one shoulder made five inches lower than the other, with the consequence that he suffered constant pain, became a physical wreck and unable to do any work.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Charles B. Campbell, Judge, presiding.
    Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Rehearing denied November 18, 1910.
    Statement by the Court. This is an appeal by the Illinois Steel Company from a judgment for the sum of $18,066, recovered by John Tijan, in the Circuit Court of Will county, for personal injuries alleged to have been sustained by appellee, through the negligence of appellant. There were two trials in the Circuit Court. At the first trial a verdict for $20,000 was returned. A motion for a new trial was granted and at the second trial a verdict for $18,000 was returned, on which with interest the judgment appealed from was rendered.
    The appellee was employed by appellant, as a member of a gang of men known as the sailor gang, repairing a reheating furnace in the billet mill in appellant’s steel works. A row of furnaces extended east and west. South of the furnaces, and about a foot from them, a narrow gauge track extended east and west the entire length of the row of furnaces. Upon this track, a small but heavy iron car or ingot buggy about two feet high and four feet long was operated for carrying steel ingots. The space between the furnace and the car was from six to ten inches and there were some gear wheels, on the side of the car, that approached still nearer to the furnace. The car was moved by means of cables attached to each end that run over drums at either end of the track. The power was furnished by electricity that moved the drum at the end towards which it was desired to move the car. The power was applied and controlled in a cage or shanty about seven feet square that was elevated somewhere from ten to eighteen feet above the track. There were two appliances in the cage which controlled the power that moved the drums. The first appliance was an electric switch on the east side of the cage about four and a half feet from the floor for the purpose of cutting out the electric current from the controller. The switch was an ordinary fork switch about six or eight inches long and three or four inches wide; at the top or above the switch were two prongs or forks; the switch had a wooden cross bar and two copper bars at right angles with it which entered the forks to close the switch; .the wooden handle was on the cross bar and the lever ends of the bars were pivoted. The switch would be opened by pulling the wooden handle so as to cause the connecting bars to come away from the prongs; the electrical connection would then be broken and the car could not be moved, except when the switch was closed. The switch was open when the wooden handle stood out from the wall or hung down, and was only closed when the handle was upright above the forks. The other appliance was the controller, which was a metallic box about two and one-half feet long from east to west with a lever extending out of the top which moved east or west. When the lever stood upright in the center, it was in a neutral position and the machinery did not move; if the lever was moved to the east, when the switch was closed, the car moved east, and if the lever was moved west from the center, the car would move west. The further east or west the controller was moved, the faster the car would move in that direction. There was also a lift, a steam lever, a whistle, a bench seat and a stove in the cage; the lift was to work another gearing which was upon the buggy so as to remove the ingot off the buggy; the lever was to start the engine up to run the ingot off the rolls and the‘whistle was to call for another ingot.' These appliances were all operated by the man in the cage in charge of the controller and switch. The accident happened between one and two o’clock on the morning of December 10,1907, while work in the billet mill had been suspended for about twenty minutes previously for want of material. The appellee under the direction of his foreman was at work with his gang repairing one of the reheating furnaces while the billet mill was not running. The ingot buggy had been standing a few feet east of the furnace the gang was repairing. While the appellee was stooping down lifting an iron rail, between the narrow gauge track and furnace, the ingot buggy suddenly started west and caught appellee between the buggy and the furnace, rolling him in the narrow space and very seriously injuring him.
    The counts on which the trial was had severally allege that the appellant was negligent, (1) in failing to. exercise reasonable care in providing reasonable safety appliances or safe guards for a certain electric switch; (2) in failing to make, promulgate and enforce reasonable rules in warning and prohibiting its servants and persons on its premises from moving, starting or interfering with electric switches, controllers or appliances when appellant’s machinery was not in motion; (3) in failing to make, post or enforce rules preventing the assembling of servants in places where they were not employed; (4) in neglecting by its servants to move the switch a reasonably safe distance from the fork and to turn the switch in a downward position; (5) in failing to remove or blockade the car and prevent it from running on the track, and (6) in permitting its servants to assemble in the cage. Each count averred that appellee was in the exercise of due care; that the injuries did not result from an assumed risk and were not caused by the negligence of a servant who was a fellow servant with appellee.
    Garnsey, Wood & Lennon, for appellant; Knapp & Campbell and William Beye, of counsel.
    John W. D’Arcy, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

It is insisted that the court erred in not directing a verdict for the appellant and that the verdict cannot be sustained on the evidence. The evidence shows that the electrical appliances in the cage were operated in the night time by Leslie Fewtrell, a boy of the age of seventeen years, and William Erick of the age of sixteen years. Each of these boys operated and attended to the appliances for thirty minutes at a time, each spelling the other every thirty minutes; when one was operating the appliances the other was resting. The machinery had been shut down for want of material shortly after one o’clock a. m. while Fewtrell was in charge of the appliances. When the machinery was closed down Fewtrell moved the controller to the neutral position and opened the switch by moving the wooden handle so that it stood out from the wall. Erick took charge of the cage and the appliances in it at 1:30 o ’clock a. m. with both the electrical appliances in a safe position, and Fewtrell then had thirty minutes during which he was off duty, resting, but remained in the cage. There were in the cage at the time besides the boys two men, Etheridge, an oiler, and Moriarty, who was sitting on the bench reading a newspaper. Moriarty moved over on the bench so as to let Fewtrell sit on the bench near the stove. It was too warm for Fewtrell there, and he moved the lever on the controller the entire distance to the west, and sat upon the east side of the controller. There was proof also that two other men, Lincoln and Morgan, at times before the accident had rested or loitered in the cage. None of these four men, Etheridge, Moriarty, Lincoln or Morgan had any duty to perform in the cage and Moriarty left the cage before the accident. Fewtrell had a stick in his hand and seeing the movable part of the switch hanging apart from the forks, either accidentally or intentionally, touched the handle with the stick closing the switch, when the car shot forward catching appellee between it and the furnace and injuring appellee.

Fewtrell and Erick were employes of appellant and had charge of the dangerous machinery in the cage every alternate half hour from six o ’clock to six o ’clock, and do not appear to have had any other place than the cage to stay during the half hours they were resting.

Erick, the boy in charge of the machinery when the accident happened, testified that he saw Fewtrell move the controller from its neutral position and permitted it to remain, so that the car would move rapidly towards the west, if the switch should be closed, knowing that the sailor gang were at work on the furnace. Fewtrell drew pay for the entire time and must be held to be an employe of appellant during the time he was resting. Heldmaier v. Cobbs, 195 Ill. 172. Erick’s act, in permitting Fewtrell to move the controller and letting it remain so that the closing of the switch would move the car, was the act of appellant. The appellant had committed to Fewtrell and Erick, its employes, the care of this dangerous machinery. The law imposes upon appellant the duty of safeguarding its employes and the duty of exercising ordinary care and diligence thereabout; the acts of Fewtrell and Erick, who were not co-employes with appellee, were the acts of appellant, and appellant is responsible for their acts in using the machinery or guarding it, while in charge of it, and the jury were justified in finding the acts of Fewtrell and Erick to be negligence on the part of appellant.

The presence of loiterers in the cage, where the control of dangerous machinery was located, was proved to have occurred at times for several months. The safety of many employes was dependent upon the care of the operators of the machinery controlled from the cage. We are of the opinion appellant was negligent in not preventing its employes from spending their spare time in the cage and distracting the attention of its employes in charge of such dangerous machinery as the proof shows was controlled in the cage. We conclude, that negligence was proved as alleged in several of the counts, and that the verdict and judgment are sustained by the evidence.

Appellant also contends that the court erred in admitting improper evidence offered on behalf of appellee. The appellee was permitted to exhibit to the jury the upper part of his body. The introduction of substantive evidence of that character is in the discretion of the court and is not ground for reversal. Swift & Co. v. Rutkowski, 182 Ill. 18; Pronskevitch v. C. & A. Ry. Co., 232 Ill. 136; C. & A. Ry. Co. v. Walker, 217 Ill. 605.

The court permitted counsel for appellee in their reexamination of Fewtrell and Erick to question them as to statements made by them to their employer on the day the injury occurred. Erick was still in the employ of appellant and by some of his answers showed a disposition to favor appellant. The re-examination was proper, not to impeach either of them, but to draw from them facts which had not been fully disclosed, and the questions were for the purpose of refreshing their memories and awakening their conscience. Chicago City Ry. Co. v. Gregory, 221 Ill. 591.

There was evidence admitted concerning the area covered by the plant of appellant and the number of its' employes; this was admitted under the count alleging negligence in not making and promulgating rules and was proper on that issue. The only objection made to this evidence was that it was immaterial. It was material as tending to show, that in such a plant, there should be rules requiring employes not to interfere with other employes in the discharge of their duties. Where evidence is admissible for some purposes, and is inadmissible for others, an objection is properly overruled. The proper practice is to request that it be restricted to the particular purpose for which it is competent. 9 Encyc. of Evi. 130.

A physician testified that “this man’s anatomy had been driven out of place by impact of the car that struck him or whatever the object was that struck him.” This answer was made in reply to a question to which there was no objection; neither was there any motion to exclude the answer. .

While the answer was not proper appellant has not saved any question concerning it. However, there is no dispute as to what caused the injury nor the extent of it, hence the answer is not reversible error. There was also some evidence concerning the possession of a revolver by Fewtrell in the cage at another time. It was afterwards excluded. This evidence was improperly admitted, but it was harmless error.

It is contended the damages are excessive. Appellee was a man twenty-five years of age, strong, healthy and earning from $2 to $2.40 per day; his head was crushed, his jaws broken in three places so they had to be wired together, his teeth were loosened so that he cannot eat meat or hard food, Ms spine is twisted, three ribs were broken on one side and four on the other, one lung is solidified, one shoulder is made five inches lower than the other and he suffered constant pain. He cannot do any work and is a physical wreck because of the injury. We cannot say the judgment is excessive. Finding no reversible error, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Mirian D. Merrill, Appellee, v. Michigan Central Railroad Company, Appellant.
    Gen. No. 5337.
    1. Passenger and carrier—when relation established. A person becomes a passenger when, intending to take passage, he enters the waiting room of a depot or place provided by the carrier for the reception of passengers at a time when such place is open for the reception of passengers intending to take passage on trains of the company and desiring to buy a ticket, or if the ticket office is not open undertakes to get on the train while the train is standing for the reception of passengers, intending to pay his fare on the train.
    2. Passenger and carrier—duty of latter to exercise care. The duty of a carrier to exercise a high degree of care extends to the time of passage by the passenger from the depot to the train.
    3. Passenger and carrier—when rules of latter incompetent. Rules affecting the conduct of passengers are not competent against a passenger in an action for personal injuries in the absence of evidence of knowledge thereof by him or by the public.
    4. Evidence—when admission of erroneous will not reverse. In the absence of objection having been made thereto in the trial court the admission of erroneous evidence will not reverse.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Charles B. Campbell, Judge, presiding.
    Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Statement by the Court. Mirian D. Merrill, a resident of Joliet, with her husband arrived at Niles, Michigan, from the east on Saturday, September 29, 1906, and on the morning of the next day went to the depot of the Michigan Central Railway Company at Niles to take the train going west at 6:13 a. m. She went into the depot from the street and her husband went to the baggage room to see about the baggage. The train came in before the return of the husband and she attempted to go to the train through the door from the waiting room, but finding that door locked went through an adjoining room used as a restaurant and dining room out on the platform and walked toward the train for the purpose of getting on board it as a passenger. An employe of the railroad company who had been in charge of the restaurant since the previous evening was on the platform ringing a bell in his right hand. Mrs. Merrill, going towards where a brakeman stood by the train, passed behind the bell ringer, but just as she was passing him he turned and swinging the bell in another direction from what he had been swinging it, struck Mrs. Merrill with the edge of the bell just above the knee. She brought this suit to recover damages for the injuries sustained. On the trial the jury returned a verdict for plaintiff for $1,000. There was a remittitur of $80 and judgment for $920 against the defendant who appeals from that judgment.
    J. L. O’Donnell and T. F. Donovan, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    Snapp & Heise, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

The chief contention of the appellant is that the judgment cannot be sustained on the evidence, and the argument is that neither negligence on the part of the appellant nor ordinary care on the part of the appellee was proved. The declaration avers that appellee was a passenger at the depot about to get aboard the train of appellant and that a servant of appellant upon the platform ringing a bell, to attract passengers to the railroad restaurant located in the depot, carelessly and negligently with great violence struck appellee, etc. The evidence proves that the appellee and her husband went to the depot for the purpose of becoming passengers on the train; the ticket office was closed so that they were unable to get tickets but they had money sufficient to pay their fare and intended to pay it on the train. A person becomes a passenger when, intending to take passage, he enters the waiting room of a depot or place provided by the carrier for the reception of passengers at a time when such place is open for the reception of passengers intending to take passage on trains of the company and desires to buy a ticket, or if the ticket office is not open undertakes to get on the train while the train is standing for the reception of passengers, intending to pay his fare on the train. Elliott on Railroads, sec. 1879; C. & E. R. R. Co. v. Jennings, 190 Ill. 478; Pennsylvania Co. v. McCaffrey, 173 Ill. 169. “It is the duty not only to exercise a high degree of care while the passenger is upon the train, but also to use the highest degree of care and skill reasonably practicable in providing the passenger a safe passage from the train.” Pennsylvania Co. v. McCaffrey, supra. The same must be the rule concerning the passage of passengers from depots to trains. If the defendant company was only required to exercise ordinary care in providing a safe passage.from the depot to the train, yet, it was a question for the jury to say from all the evidence whether the appellant was guilty of negligence in swinging the bell and then turning and swinging it in another direction so as to strike and injure a passenger going from the depot to the train, and whether the appellee was in the exercise of ordinary care in passing two or three feet behind such bell ringer. The jury have passed on these questions favorably to the contention of appellee and we cannot reasonably say that the jury was mistaken.

It is also contended that the court admitted erroneous evidence on the part of the appellee. Appellant is correct in this contention, but the evidence was admitted without objection. The first witness called was Earl Merrill. He was asked his age and answered “eighteen;” and then was questioned as follows: ‘-‘Your are a son of plaintiff?” and answered “Yes.” “Your father is Fred Merrill, a letter carrier who was here A,moment ago ? ’ ’ and answered “ Yes; ” “ Have you any™brothers and sisters?” “I have two brothers, but no sisters.” “What are their ages?” To this there was an objection which was overruled and he answered “Fifteen and thirteen.” “Are they living at home with their parents?” “Yes sir.” These facts were proved by appellee without any objection being-interposed except an objection to the question concerning the age of the two youngest children. All .this evidence was clearly improper, and had an objection been made and overruled to the proof of the family relations, the case would have to be reversed. Jones & Adams Co. v. George, 227 Ill. 65; Lauth v. Chicago Union Traction Co., 244 Ill. 244. All that appellee was entitled to recover was compensation for her injuries. The proof that her husband was a letter carrier and that she had three children who were living at home was irrelevant, and perhaps was introduced for the purpose of appealing to the sympathy, passions or prejudices of the jury. This court, however, cannot reverse judgments because counsel for appellant permitted objectionable questions to be asked and answered without objection while the trial was in progress, nor because counsel on the other side got before the jury improper evidence without. objection and exception. If counsel for appellant did not object to the question and permitted irrelevant and prejudicial testimony to go to the jury we cannot aid them.

It is also contended that the court improperly sustained an objection to certain evidence offered on behalf of appellant. Appellant sought to prove orally certain regulations regarding how passengers were to reach trains. If the regulations were a matter of record or printed, then the evidence offered was secondary evidence, and besides there was no proof tending- to show that appellee or the public had any notice of such regulations; and the objection was properly sustained.

Finding no error in the case to which objection was made requiring the reversal of the judgment, it is affirmed.

Affirmed.


text:
    Robert W. Crossen, Appellee, v. Chicago & Joliet Electric Railway Company, Appellant.
    Gen. No. 5341.
    1. - Measure of damages—in action for injury to personal property. Where personal property has been injured by the negligence of another and can be repaired, the proper measure of damages is the cost of the repairs and the value of the loss of the use of it while it is being repaired; if the property cannot be repaired then the measure would be the difference between the market value of the property before the injury and the value of the wreckage.
    2. Licenses-—effect of failure to take out. In an action for an injury to an automobile the fact that the owner may not have obtained a state license to run such automobile is immaterial upon the question of the right to recover.
    Action in case. Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.
    Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    E. Meers, for appellant.
    J. W. Downey and J. W. D’Arcy, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Robert W. Crossen brought suit against the Chicago & Joliet Electric Railway Company to recover damages sustained by plaintiff to his person and to an automobile in which he was riding on June 14, 1908, by a collision between his automobile and a car of the defendant in the city of Joliet. A trial before a jury was had, a verdict for $1,750 returned upon which. judgment was entered, and the defendant appeals.

Three counts of the declaration aver that the damages were caused by the negligence of the appellant in negligently and carelessly driving its street car over its tracks in Cass street at the intersection of Herkimer street; the fourth avers that appellant carelessly and negligently ran its car at a high and dangerous rate of speed on Cass street and failed to give any warning of the approach of the car to the intersection of Herkimer street. All the counts aver due care on the part of appellee.

• The evidence shows that Cass street in the city of Joliet extends east and west and is sixty-six feet wide; it is paved between the curbing a width of forty-one feet, and appellant has a double track street railway on that street. Herkimer street extends north and south crossing Cass street; it is also sixty-six feet wide and is paved a width of thirty-three feet. The north street car track is the west bound track and the south track is the east bound track. Just prior to the accident a car of appellant went west on Cass street across Herkimer street; another car followed the first car, with a third close behind it. The appellee in his auto with three passengers, a Mr. Wheeler and appellee’s two daughters, were going west on the north side of Cass street by the side or just behind the third car which was running slowly. The second car stopped at the west side of Herkimer street to let a passenger alight. The evidence of appellee tends to show that appellee stopped with his auto by the side or close behind the third car just east of the east sidewalk on Herkimer street across Cass street, and that as soon as the third car had got far enough across Herkimer street to leave any room behind it on that street, appellee started to turn south on Herkimer street off Cass street across the appellant’s tracks from immediately behind the car near which he had been running. Appellee testifies he saw no car coming east on the south track, but as he got on the south track from behind the car he saw a car coming east distant some seven or eight feet from him and that it struck his auto on Herkimer street and pushed it east throwing him on the steering wheel, breaking two of his ribs and smashing his auto. The evidence of appellant tends to show that appellee crossed the tracks on Cass street about thirty feet east of the east line of Her-timer street. Appellee and his daughter Mabel testified the auto did not turn until it was on Herkimer street. They were corroborated by two witnesses, Gorey and Moriarity, but who had testified differently at a former trial. Wheeler and the other daughter, now Mrs. Wheeler, did not testify in the case, while seven witnesses testified on behalf of appellant that the collision occurred east of Herkimer street; the evidence was also conflicting as to the speed of the car. As the case must be reversed for another reason we will not express any opinion concerning the right of recovery as there may be other evidence on that question.

In proving the damages to the machine appellee proved them by two different measures, against the objection of appellant. It was shown that appellee, who runs a wagon and automobile repair shop, repaired the auto in his own shop, and after he had repaired it he found it was not right and he tore it in pieces and rebuilt it and that he expended between five and six hundred dollars in repairs and after that expense it was not worth over $500. He also proved that before the injury the machine had only been used two and a half years, was worth from $900 to $1,250 and that after the damage was done to it the wreck was worth from $50 to $150, the variation being in the estimates of different witnesses.

When personal property has been injured by the negligence of another and can be repaired, the proper measure of damages is the cost of the repairs and the value of the loss of the use of it while it is being repaired. FitzSimons v. Braun, 199 Ill. 390; Travis v. Pierson, 43 Ill. App. 579; Berry v. Campbell, 118 Ill. App. 646. If the property could not be repaired then the measure would be the difference between the market value of the property before the injury and the value of the wreckage. Appellee if he was entitled to recover, was entitled to compensatory damages for the injury, but he had no right to speculate at the expense of appellant in repairing the machine and after once repairing’ it tear it in pieces and rebuild it because of his own mistake, or to make repairs at an expense greater than the value of the machine after it was repaired. He did not have the right to introduce evidence concerning both measures of damages without informing the jury in some way, so they would not be misled, that they could only allow damages by one of the measures, and that measure must be the one which was the least burdensome to appellant. The error might also have been avoided by excluding the evidence concerning the measure of damages which should not have been admitted.

The evidence showed that appellee was the owner and manager of a business in which he had from fifteen to twenty employes and that he was walking around in three or four days after the accident, and back in charge of his business within a week. He was asked what loss, if any, he had sustained annually in connection with the management and operation of his business. To this the court sustained an objection. He was then asked “To what extent has your ability to earn money in your trade as a carriage maker been decreased on account of the injuries'?” To this an objection was overruled, and appellant contends this ruling was error. The loss of profits in conducting a business involving the labor of others is not a necessary consequence of such injury. Silsby v. Car. Co., 95 Mich. 204; Goodhart v. Penn. Ry. Co., 177 Pa. St. 1. The profits of a business are speculative, uncertain and dependent upon too many contingencies to be a measure of damages in a suit in case. The reduction of his earning capacity, if any, by the injury, was, however, proper and there was no error in the ruling of the court on these questions.

It is also insisted the court should have instructed a verdict for the appellant because appellee did not prove he had a license from the state to run his automobile on the highways. This is a suit in case for damages to the person and the machine, and is distinguishable from that class of cases where an action is brought to recover compensation for something done by a licensee by virtue of a license. Whether appellee had a license or not was in no way connected with the cause of action and was immaterial.

For the error indicated the judgment is reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Dibell took no part in the consideration of this case.


text:
    John Andreicyk, Appellee, v. Chicago & Eastern Illinois Railroad Company, Appellant.
    Gen. No. 5342.

      Verdicts—when set aside as against the evidence. A verdict against the clear preponderance of the evidence will be set aside on review.
    Action in case on personal injuries. Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding.
    Heard in this court at the April term, 1910.
    Reversed with finding of facts.
    Opinion filed October 18, 1910.
    W. R. S. Hunter, for appellant; Homer T. Dick, of counsel.
    E. P. Harvey, N. L. Piotrowski and Cooper & Hobble, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case for personal injuries. There have been two trials before a jury. The first terminated in a judgment against the appellant for $10,500. This court on appeal reversed that judgment for error in instructions, but refrained from expressing any opinion on the merits of the case, except to suggest that the preponderance of the proof seemed to favor appellant’s theory of the case. Andreicyk v. C. & E. I. R. R. Co., 150 Ill. App. 539.

The second trial from which this appeal is prosecuted, resulted in a judgment for $5,000 against appellant. There is no change in the pleadings since the first appeal and the evidence of the witnesses on this appeal with the exception of two new witnesses, Bennett and Robinson, is substantially the same as on the former trial. It will, serve no useful end to repeat the statement of the evidence made in our former opinion.

The contention of appellant is that the evidence does not. sustain the judgment, while it is claimed by appellee that the evidence of the two additional witnesses in the record corroborates his testimony. Bennett testified that he had been a teamster for fifteen years and is now in the mail service, and that while he was in a corn field the Sunday appellee was hurt he saw two men, he thought brakemen, scuffling in a coal car and one of them fell off; that the train stopped and people ran that way but he was not interested and did not go to the place of the accident, although he crossed the railroad near there while a crowd was there. The witness Robinson testified that he was at the C. & E. I. depot a little after 12 on November 17, 1907; that he saw a freight train pass and saw two men looking out of the engine door on the west side of the engine and saw a boy in a coal car and a man walking north in the car towards him. On cross examination he admitted he had difficulty with the C. & E. I. Ry. and had a suit against the company while this suit was pending; that the attorneys for appellee were his attorneys at the time of the first trial of this case, and that he was in the court room at the time of the first trial under subpoena on behalf of appellee, but was not called to testify on that trial.

The story of appellee is that he was standing on the beam end of a coal car and that a railroad man, standing on the cross beam on the outside of the tender of the engine, on the moving train, grabbed him around the waist and threw him off the train. The story of appellee is unreasonable, because of the danger there would be to a man standing on a narrow beam in grabbing another around the waist and throwing him off a moving train. If such an act could be done it would be' extremely dangerous to both men. The proof is conclusive that there were several box cars between the engine and the first coal car at the time appellee was injured. The clear preponderance of the evidence is that appellee had repeatedly been put off the train, and that he was getting on again when the train was moving, and that he ran against the pot signal by which he was injured, while trying to board the train, and was knocked under the train. The material evidence of appellee is contradicted by four witnesses who are in no way impeached, while many things in appellee’s evidence are contradictory and tend to impeach him.

The judgment is reversed because it is against the clear preponderance of the evidence.

Reversed.

Finding of fact. Appellee was injured while wrongfully attempting to board a train of appellant, and was not thrown from a train by employes of appellant.


text:
    J. C. Masters, Appellee, v. Harry Wagenseller et al., Appellants.
    Gen. No. 5345.

      Practice—when special interrogatories submitted too late. Special interrogatories not submitted until after the arguments of counsel were closed and the jury instructed, are properly refused.
    Assumpsit. Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.
    Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    White & Tuesburg, for appellants.
    E. A. Agard and Bert W. Adsit, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Appellants with appellee and another party were partners in the ownership of some stallions and in breeding horses. Appellants bought the interest of appellee in the business and agreed to pay him $300, less whatever he owed the firm for stallion service. They disagreed as to the amount appellee owed for such service, and appellee brought suit in assumpsit to recover the $300. Appellants filed the general issue, a plea of tender of the sum of $175 and a plea of set-off on which issues were joined. Appellee recovered a judgment for $205 or $30 more than the sum tendered.

Appellants contend that the court erred in refusing to submit to the jury certain special findings of fact requested by them. The bill of particulars shows that appellants did not submit the special findings until after the instructions had been given to the jury. Section 79 of the Practice Act requires that a party desiring special findings of fact to be made by a jury must submit such questions of fact to the adverse party before the commencement of the arguments to the jury. Appellants not having submitted such questions of fact until after the arguments were .closed and the jury instructed, the court did not err in refusing them, regardless of whether they were or were not properly framed.

The printed rules of the partnership provided that if the owner of a mare sold her before she foaled then the stallion service was at once due and payable. The testimony offered by appellee showed that there was an agreement that this rule should "not apply to the owners of mares who sold to persons residing in the vicinity of the owner. Appellants denied that there was any such change in the printed rule. Another printed rule of the company made it necessary before the partnership was entitled to stallion service that a foal should stand and suck, and it was a disputed question whether a certain foal did stand and suck. It was also a disputed question as to how many mares appellee had bred to the stallions of the partnership. The evidence was very evenly balanced on all the controverted questions of fact. The jury believed the evidence for the appellee. The trial judge saw the witnesses and approved the finding of the jury, and we see no reason why this court should invade-the province of the jury. The judgment is affirmed.

Affirmed.


text:
    Michael D. Harvey, Appellee, v. William McQuirk, Appellant.
    Gen. No. 5348.
    1. Instructions—predicated upon evidence. Instructions must be predicated upon some evidence in the cause.
    2. Instructions—directing attention to particular evidence. An instruction should not single out particular evidence and specifically direct the attention of the jury to the same.
    3. Instructions—when error to refuse, having reference to ef

      feet of greater number of witnesses. Where such an instruction is pertinent to the state of the case and is correct in form, it is error to refuse it.
    Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding.
    Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Gunsall & Mighell, Harry Edwards, Henry S. Dixon and George C. Dixon, for appellant.
    Brooks & Brooks and John E. Erwin, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in assumpsit brought by appellee against appellant to recover half of the profits alleged to have been made by appellant on the purchase of a farm. A trial by jury resulted in a verdict and a judgment in favor of appellee for $1,250 from which this appeal is prosecuted.

Appellant and appellee are farmers. Appellee testified that in April, 1908, while appellant was on his way to town, he had a conversation with appellant on the road near appellee’s farm; that appellee told appellant that he knew of a farm that could be bought cheap but he did not have money enough to handle it; that the farm consisted of 160 acres and could be bought for $23 an acre; that appellant said “Ton better take me in with you in this matter and let us buy the land together and we will divide the profits.” “He says ‘Will you do that’ and I says ‘I will do it’ and he says ‘Where is the land’ and I says ‘The O ’Dell -farm; ’ ” that thereafter without any other consultation between the parties appellant bought the farm and afterwards sold it. The proof shows that appellant paid $3,900 for the land; afterwards he borrowed $4,500 by, giving his note with a mortgage on the farm; that the title was imperfect and appellant had to, pay out other sums in perfecting the title; that he farmed the land one season hut appears not to have made any profit, and that he afterwards traded the farm for town property with the result that appellant sustained a loss in the entire deal.

Appellant denied that he ever made any arrangement with appellee to join with him in buying the farm and to divide the profits. Appellee did not take any part in trading for the farm, advanced no money towards its purchase, assumed no liability and did not agree to share any loss. He never consulted with appellant about the farm after its purchase and does not appear to have had any interest in it until he brought this suit. The testimony and the actions of appellee are inconsistent.

The only proof that tends to show that there was any profit realized by appellant is the evidence of a witness, Charles Ross, who testified that he heard appellant say in a saloon “I had a little land deal with a man living west of town. I cleaned up about $5,000 or $6,000.” “It’s Mac Harvey.” Appellant denied the conversation with Ross and denied being in the saloon. Appellant testified to the particulars of the trades arising out of the O’Dell farm transaction, and from the facts detailed it clearly appears that he made no profit in the deal. To sustain this judgment it must be shown by a preponderance of the evidence that he made a profit of $2,500 in the transaction. There is no evidence in the record which reasonably establishes any such profit.

Errors are assigned and argued on the giving and refusing of instructions. The fourth instruction given for the appellee informed the jury that the consideration mentioned in a deed made by appellant conveying the O ’Dell farm was proper evidence to be considered by the jury. The deed mentioned was not offered in evidence. There was no evidence on winch to base the instruction and it was error to give it. Had there been evidence on which to base the instruction, still an instruction should not single out a particular deed from other deeds and thereby specially direct the attention of the jury to a particular part of the evidence, for this tends to mislead the jury into ignoring other evidence. Error is also assigned on other instructions that they assume that there was a profit, but as these objections will be avoided on another trial it is not necessary to discuss them.

The court refused an instruction offered by appellant informing the jury that if it believed from the evidence that the evidence of a smaller number of witnesses on one side is more credible and trustworthy than the evidence of a greater number on the other side then the evidence preponderates on the side of the smaller number of witnesses. The instruction is copied verbatim from St. L. & O. F. Ry. Co. v. Union Bank, 209 Ill. 457, where it is approved. Inasmuch as appellee called several witnesses in an attempt to corroborate his testimony, and had a greater number of witnesses than appellant, and the instruction announced a correct legal proposition, it was important and necessary that it should have been given, and its refusal was error.

The judgment is reversed, but as appellee may produce other evidence at another trial the cause is remanded.

Reversed and remanded.


text:
    John Hamilton et al., Appellants, v. John W. Chaffee et al., Appellees.
    Gen. No. 5351.
    1. Witnesses—when husband incompetent. If a wife is incompetent by virtue of interest, the adverse party suing or defending in a representative capacity, her husband is likewise incompetent.
    2. Appeals and errors—-when improper argument of counsel not saved for review. In the absence of objection made thereto in the trial court and a ruling had upon such objection, the propriety of arguments of counsel is not saved for review.
    Contested claim in court of probate. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding.
    Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    W. R. S. Hunter, for appellants; C. E. Botsford, of counsel.
    Harry G. Hempstead, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

David B. Hamilton died in Kane county, December 17, 1896, leaving a last'will and codicil which were admitted to probate. The will gave to Margaret Hamilton, the widow of the testator, the use of a farm of one hundred and sixty acres during her life, and the remainder after her death to John Hamilton, Mary Marshall, Jessie Hamilton and Mary Clark, share and share alike. The evidence shows he had no daughter Mary Clark, but had a daughter Marguerite Clark. The remainder men were children of the deceased by a former wife. Jessie Hamilton died during the life of the testator and he thereupon executed the codicil, which devised hér share to be equally divided between his wife Margaret and a niece, Annie Hamilton. Margaret Hamilton died testate, in March, 1907, and John W. Chaffee and Addie Outhouse were appointed executors of her estate. John Hamilton, Mary Marshall, Marguerite Clark and Annie Hamilton, the heirs of David Hamilton, filed in the Probate Court a claim against the estate of Margaret Hamilton for $1,400 for waste “caused and suffered to be done by Margaret Hamilton while she occupied and had the life use of the premises and buildings owned by David Hamilton at the time of his decease.” An appeal was taken from the judgment of the Probate Court to the Circuit Court, where on a hearing before a jury, a verdict was returned in favor of the defendants on which judgment was rendered; from that judgment this appeal is prosecuted.

Among the errors assigned and insisted upon, it is urged that the court erred in sustaining objections to questions asked George Marshall, on behalf of appellees. George Marshall is the husband of Mary Marshall, one of the claimants. The witness was clearly incompetent since the adverse parties were defending as executors of a deceased person, and the. claimant being incompetent under the statute, the husband was also incompetent under sections 2 and 5 of the Evidence Act. Treleaven v. Dixon, 119 Ill. 548; Heintz v. Dennis, 216 Ill. 487; Shaw v. Schoonover, 130 Ill. 448; McGooden v. Bartholic, 132 Ill. App. 392.

It is contended that the case should be reversed because of improper argument of counsel before the jury. The record contains no objection to such argument, ruling on objection or exception thereto, so that the question is not saved for review. Peterson v. Pusey, 237 Ill. 204; City of Salem v. Webster, 192 Ill. 369.

Appellants contend that the judgment in favor of the appellees cannot be sustained on the evidence. Appellees contend that under the statute (sec. 79, chapter 3) a widow is not liable for permissive waste, but only for voluntary waste, and that it has been held in Smith v. Mattingly, 96 Ky. 228, under a similar statute that a life tenant is not liable for permissible waste, and that at common law an action of waste did not survive the death of the life tenant, and that there is no statute in this state that revives the cause of action. We do not deem it necessary to pass on these questions as there is a more serious obstacle to the claimants’ right of recovery. Claimants must prove their right of recovery by a preponderance of the evidence. Claimants proved that shortly after the death of David Hamilton and many years before the death of Margaret Hamilton there was a proceeding to partition the land devised by the will of David Hamilton, and that twenty-four and one-half acres of the land was set-off and allotted to Margaret Hamilton. Claimants offered in evidence the records in the partition suit and they were admitted, but they have not been copied into the record. Notwithstanding anything contained in the record, the buildings on which it is claimed waste was suffered may have been on the lands allotted to Margaret Hamilton, the widow. No. other judgment could be sustained on the evidence before us in this record.

We find no reversible error in the record; the judgment is affirmed.

Affirmed.


text:
    Alice Randall, Appellant, v. Sterling, Dixon & Eastern Electric Railway Company, Appellee.
    Gen. No. 5354.
    1. Instructions—propriety of, upon manner of deliberation. It is proper for the court to inform the jury that in deliberating upon and determining the issues they should first decide upon the question of liability, and until that question has been determined they should not consider the nature, character or extent of the injuries made the. basis of the claim for damages.
    2. Instructions—propriety of, upon obligation to consider testimony of unimpeached witness. An instruction is proper which tells the jury that they have no right to disregard the testimony of an unimpeached witness simply because he was in the employ of the defendant company.
    3. Instructions—argumentative in character. Instructions argumentative in character should be refused.
    4. Passenger and carrier—burden of proof to establish negligence. The burden of proof to establish the specific negligence charged in the declaration is upon the passenger, and likewise is the burden upon the passenger to show prima facie the exercise of ordinary care for his own safety.
    Action in case for personal injuries. Appeal from' the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding.
    Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    John E. Erwin, for appellant.
    Henry S. Dixon and George C. Dixon, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Alice Randall brought suit against the Sterling, Dixon & Eastern Railway Company to recover damages, alleged to have been received by her, because of the negligence of defendant, while alighting from its car. A jury returned a verdict in favor of defendant on which judgment was rendered and the plaintiff appeals.

Appellant was a passenger on a car of appellee going south on Cottage avenue in the city of Dixon. Between Second and Third streets she gave a signal that she desired to get off the car at Third street. The evidence shows that appellee was accustomed to stop its cars at street crossings for passengers to alight, after they had crossed the intersecting street. Appellant claims the car stopped for her to alight and that as she was about to alight, the car suddenly started and threw her to the ground injuring her. The preponderance of the evidence is that she was thrown to the ground, while trying to alight from the car, while it was in motion, where it did not stop and was not accustomed to stop. The injuries received by appellant were much less serious than claimed by her, yet, if she was injured by the negligence of appellee, while in the exercise of due care, she would be entitled to recover compensation for her damages. The evidence of appellant is that she was getting off the rear end of the car, when it was in the center of the street intersection, and the front end of the car was near the south- side of the intersecting street. It is not contended on this appeal, but that the verdict is right on the facts, and is warranted by the evidence, which preponderates in favor of appellee. It is however insisted that the court erred in giving and refusing instructions.

It is contended that the court erred in giving the tenth instruction requested by appellee. This instruction informed the jury that in deliberating upon and determining the issues, they should first decide upon the question of liability, and until that question has been determined, they should not consider the nature, character or extent of her injuries. Such is the natural order of considering the issues and if appellant was not entitléd to recover there is no reason for considering the damages or character and extent of the injury. Chicago City Ry. Co. v. Hagenback, 228 Ill. 290; Chicago City Ry. Co. v. Allen, 169 Ill. 287; North Shore Street Ry. Co. v. Strathmann, 213 Ill. 252. Objection is made to the appellee’s seventh instruction which told the jury they had no right to disregard the testimony of an unimpeached witness simply because he was in the employ of appellee. This instruction was approved in Cicero Street Ry. Co. v. Rollins, 195 Ill. 219, and I. C. R. R. Co. v. Haskins, 115 Ill. 300.

It is argued that, because appellant was a passenger, when she proved she had been injured, she had made out a prima facie case and the burden of proving she was not in the exercise of ordinary care was on the appellee. The burden of rebutting the prima facie case was on the appellee, but the burden of proving the specific negligence alleged in the declaration, and that appellant was in the exercise of ordinary care, remained on the appellant. There was no accident or any unusual occurrence on the part of the appliances of appellee that the law required appellee to explain or rebut. Chicago Union Traction Co. v. Mee, 218 Ill. 9.

Appellant contends there was error in refusing the second instruction requested by appellant. The instruction in part is: “The court instructs the jury that the fact that the law does not make a common carrier an insurer of the safety of its passengers does not even to the slightest extent relieve such common carrier of its legal duty to exercise the highest degree of care for the safety of its passengers ’ ’ etc. This instruction was properly refused because of the argument contained in it. The court should only announce the law and not "argue the case for counsel. The remaining half of the instruction, which was proper, was given in two other of appellant’s instructions.

Appellant contends that the court erred in regard to other instructions, but after a careful examination of all points made in her behalf we find no reversible error of law. It would needlessly prolong this opinion to review every instruction which is questioned. It is sufficient to say that the jury were fully instructed and there is no reversible error in the case. The judgment is affirmed.

Affirmed.


text:
    Henry Swenson, Appellee, v. James F. Doyle, Appellant.
    Gen. No. 5361.
    1. Appeals and errors—-when assignments of error waived. Assignments of error not argued are deemed to have been waived.
    2. Verdicts—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review in the absence of errors of law.
    Assumpsit. Appeal from the County Court of Lake county; the Hon. DeWitt L. Jones, Judge, presiding.
    Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    R. W. Churchill, for appellant.
    Benjamin H. Miller, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Appellee occupied a farm of appellant under a five year lease. Under the terms of the lease appellee was to haul certain materials and do the work for certain repairs but the lease did not provide that the appellee should haul material or do any work or board any men for appellant in the building of new buildings or the making of any new improvements on the premises. At the termination of the lease appellee brought suit to recover for work done in excavating for a new barn, hauling gravel and lumber, carpenter work, boarding men and teams, and for some material furnished by him. On a trial before a jury a verdict was returned in favor of appellee for $393.75. Appellee had judgment thereon.

Only one instruction was given for appellee, and appellant in his argument says he believes it to be erroneous but does not point out wherein it is erroneous. Counsel, to have an assignment of error considered, must point out in what the error consists. This court will not enter upon an independent investigation for the purpose of ascertaining whether the view of the law taken by the trial court was correct. Duggan v. Ryan, 211 Ill. 133; D. R. I. & N. W. Ry. Co. v. De Yaeger, 112 Ill. App. 537; City of Mt. Carmel v. Havill, 128 Ill. App. 331.

The only question argued is that -the verdict is contrary to the evidence. It is not disputed by appellant that he built a new barn on the premises and that appellee did excavating for the foundation and hauled gravel and material, etc., but it is contended that the claim was not presented in time and that it is fabricated to defeat the last payment of rent. Appellee testified that he presented the bill on different occasions, but did not attempt to enforce its collection because of his fear that appellant might attempt to cancel the lease. Whether this be true or not, appellee was not required to begin suit before he wished to, provided it was begun before the statute of limitation barred his remedy. The judgment is supported by the evidence, and is for little more than half of the claim of appellee as shown by his itemized bill of particulars. Where the evidence is conflicting it is the peculiar province of the jury to find the truth, and while the evidence in the record may seem to preponderate in favor of appellant, this court would not be justified in reversing the judgment where it is not clearly against the weight of the evidence. The jury and the trial court were in a much better position to judge of the credit that should be given to the witnesses than this court that has no opportunity of seeing them. When the entire evidence is considered we see no reason to disturb the judgment; it is therefore affirmed.

Affirmed.


text:
    People of the State of Illinois, Defendant in Error, v. Charles W. Bardwell, Plaintiff in Error.
    Gen. No. 5364.

      Verdicts—when set aside as against the evidence. A verdict manifestly against the weight of the evidence will for that reason be set aside on review.
    Action commenced before justice of the peace. Error to the County Court of Will county; the Hon. George J. Cowing, Judge, presiding.
    Heard in this court at the April term, 1910.
    Reversed with finding of fact.
    Opinion filed October 18, 1910.
    Edward Corlett and George J. Clare, for plaintiff in error.
    George A. Barr, for defendant in error; E. Meers and M. F. Lennon, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

Charles W. Bardwell was arrested on December 16, 1908, upon a charge of disorderly conduct under a warrant issued by a justice of the peace. On' the trial before the justice he was found guilty. An appeal was taken to the County Court of Will county where on a third trial before a jury he was again convicted and sentenced to pay a fine of one dollar and the costs. The defendant prosecutes this writ of error to review that judgment.

The proof shows that Thomas Hennebry and Frank Calhoun were doing some work on a north and south highway. The highway had just been graded by scraping the dirt from the sides to the center of the road and by gravelling the center wide enough for a driveway. Holes had been made on the east side of the road by taking gravel therefrom to do the gravel-ling, and Hennebry and Calhoun were engaged with a team and plow in filling these holes. They drove to the place where they were working in a wagon with planks on it such as are nsed in hauling gravel. They unhitched the team, leaving the wagon on the turnpike occupying one half of the traveled track, although near there was a level place on the side of the road where the wagon might have been left so as not to interfere with travel along the road. On. December 15, 1908, plaintiff in error had occasion to go south along the highway past the Hennebry wagon for a load of hay with a hay rack of the usual width of his wagon, and claims that his empty wagon slued to the west because of the slope as he passed the Hennebry wagon. Later in the afternoon he returned with a load of hay, and stopped two or three rods south of the Hennebry wagon, and asked Hennebry to move it so he could pass. Hennebry replied he had sufficient room to pass and at least half the road and that was all he was going to get. Bardwell got down off his load of hay, took hold of the tongue of the Hennebry wagon and pushed it off the turnpike down the slope on the east side of the grade. After Bardwell let go of the tongue, the wagon continued to move, cramped and tipped upon two wheels. The claim of the people is that Bardwell during the controversy threw a pitchfork at Hennebry.

There were six witnesses to the transaction, Hennebry and Calhoun who testified that Bardwell threw a fork at Hennebry, and Bardwell, Christ Johnson, his hired man, and Francis Cooper and Florence Cooper who were driving in the opposite direction and from a distance two or three rods north of where the controversy occurred saw the whole of it. These witnesses all testified no fork was thrown, but. that Bard-'well took his fork to aid himself in getting off the load of hay and that when part way down he tripped in some manner and the fork fell to the ground. When all the evidence is considered together the preponderance is that the fork was not thrown at the prosecuting witness by Bardwell.

The evidence of Hennebry is that his wagon did not stand on the gravelled part of the road. He is contradicted in this by all the other witnesses. The People’s witness, Calhoun, states that he does not know whether he left the wagon in the wagon track. Other witnesses who drove by the wagon before it was run in the ditch testified they had to drive around it in the road and that the ground was soft and slushy. The clear preponderance of the evidence is that the Hennebry wagon was wrongfully left standing on the traveled part of the road when the team was unhitched from it. It could easily have been run off by Hennebry so as to leave plenty of room for° people to pass on the gravelled way. It also clearly appears that after its removal was requested, the request was maliciously refused because of some ill-will between the parties with the hope by Hennebry that Bardwell’s load of hay would upset in the ditch as his wagon did. The preponderance of the evidence is with the plaintiff in error and the judgment is reversed.

Reversed.

Finding of fact: The plaintiff in error is not guilty of the charge of disorderly conduct.


text:
    Mott R. Pharis et al., Appellees, v. Moline Plow Company et al., Appellants.
    Gen. No. 5365.
    1. Contracts—what considered upon application to reform. Even if there is doubt as to the intention of the parties in making the contract, the interpretation which the parties by their acts under the contract have practically given it, will have weight and may be controlling in arriving at the intention of the parties.
    2. - Contracts—what defense inappropriate in action upon patent royalty contract. Even though the contract may not specifically estop the licensee from setting up invalidity and non infringement to an action for royalties, yet such defenses are inappropriate where the licensee continues to enjoy and claim the benefits of the license.
    Bill in equity. Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest, Judge, presiding.
    Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Statement by the Court. Mott E. Pharis and Louis A. Keene, appellees, claiming to be the inventors of a machine known as the “National Manure Spreader,” on June 1,1903, filed in the Patent Office at Washington, their application, No. 159,567, for letters patent on the improvements embodied in this machine. This National Manure Spreader, embodying the inventions and improvements made by appellees, was manufactured and sold for appellees by the Sandwich Enterprise Company, of Sandwich, Illinois, from the time of filing the application for the patent up to May 24, 1904. On May 24, 1904, the Moline Plow Company and the Mandt Wagon Company, corporations which have the same president and appear to work together, made a contract with appellees by which they obtained the exclusive right to make and sell the National Manure Spreader and agreed to pay appellees a royalty of $3 for each machine manufactured by' appellants. On October 25, 1904, letters patent No. 773,505 were issued to appellees under application No. 159,567. Appellants did not make any of the machines until after the letters patent were issued. Between the fall of 1904 and July, 1907, appellants manufactured and sold 7,696 spreaders and paid the appellees about $20,000 royalty as agreed. On September 18, 1907, appellees were notified by a letter from appellants that the contract only required appellants to pay royalties on the spreaders during the life of said application No. 159,567, and that after the letters patent were issued, appellees were not entitled to any further royalties; that appellants had been paying royalties by mistake until they learned from their attorneys that they were under no obligation to pay r03mlti.es under said contract. The appellants continued to manufacture and sell the spreaders, but refused to pay any further royalties for machines made subsequent to July 1, 1907.
    The appellees filed this bill in equity, setting up the foregoing facts and the negotiations between the parties leading up to the written contract, which is pleaded at length. The bill alleges that by the agreement made between the parties, if was "the mutual intention of appellants and appellees, and the agreement was that appellants would pay to appellees such royalty during the life of such application and the letters patent, to be issued on such application, so long as appellants manufactured such spreaders, and it prays that the contract be reformed and corrected to comply with the agreement, intention and understanding of the parties, and for an accounting.
    The appellants answered the bill, admitting the appellees were the patentees of the spreaders, but neither admitting nor denying that" the appellees were the inventors of the devices described in the letters patent, and stating that the machines made by appellants under the contract with appellees are an infringement upon a patent No. 534,810 held by James Taggert. Appellants admit in their answer that they paid royalty during the life of the application and also certain sums subsequent to the granting 'of the letters patent, but state that sáid sums were paid by mistake; they admit that they have manufactured and sold the spreaders since July 1, 1907, and that they refuse to pay further royalties; they admit the writing of the letter of September 18, 1907, but deny that the clause in the contract sought to be reformed was written by mistake, or that it was intended to make it any different than it appears in the written contract. They admit that appellees by said contract agreed to defend all suits for infringement, and state that James G. Taggert has filed a bill in equity against appellants in the Federal Court seeking to recover damages for infringement, etc., and deny appellees are entitled to any relief. They also filed a cross bill, alleging the filing of the original bill and answer and that the spreader is an infringement on inventions owned by others, and that by the tenth paragraph of the contract of May 24, 1904, it is provided, that in case the said National Manure Spreader be found by the decision of a court of competent jurisdiction to infringe any of the essential features of any patent or patents owned by others, these cross-complainants should be released and relieved from liability to pay royalties under or by reason of said contract and that all such payments shall cease, and praying that the court pass upon and find that the National Manure Spreader, mentioned in the contract of May 24, 1904, infringes upon certain mentioned patents, and that cross complainants be relieved from any further payments under said contract.
    Appellees filed exceptions to that part of the answer referring to infringement and moved to strike the cross bill from the files. The court sustained the exceptions to the answer and struck the cross bill from the files. A replication was filed, and the cause was referred to the master, who reported the evidence with his conclusions, reporting that the contract should be reformed and that there was due appellees $10,554. On a hearing the court overruled the exceptions to the report of the master, and entered a decree reforming the contract as prayed and decreed the payment to appellees of the amount found by the master to be due for royalty.
    Banning & Banning and George W. Wood, for appellants.
    Luther L. Miller and Jackson, Hurst & Stafford, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

There are two questions involved in this casé, first, are the' appellees entitled to have the contract reformed; second, are the appellants entitled in this action to show the invalidity of the patents involved in the contract as a defense to the accounting prayed.

The evidence shows that the appellees were having the National Manure Spreaders manufactured elsewhere and sold at a considerable profit and that appellants solicited the exclusive right to make the manure spreaders under the invention of appellees and under any new devices for which appellees might obtain patents thereafter during the life of the patent; that appellees turned over to appellants, under the contract, the good will of the business, the’ exclusive right to continue to use the name “National” on the spreaders, the patterns and forms owned and used by appellees in the manufacture of the spreaders, the exclusive right to use the letters patent No. 773,505 and agreed to assign to appellants any patents concerning. spreaders thereafter obtained by appellees, and to defend at their own expense the patents and all suits brought against appellants for alleged infringement, and to prosecute infringers.

It appears that the contract was prepared in typewriting with blanks to be filled in, and at the time of its execution the president of appellants drew a line through the word “patent” near the end of the contract and inserted the words “application for patent.” It is on this change that appellants contend they never understood they were to pay royalties during the life of the contract. There are numerous clauses in the contract that conclusively show the contract was to cover and extend over not only the application but also the life of the patent. The oral proof made by appellees shows conclusively that both parties understood royalties were to be paid during the life of the patent, and this proof was not denied by any evidence on the part of appellants. The appellants manufactured no spreaders under the application before the patent was issued. Under the theory of appellant, if it be true, they got the patent and all future inventions of appellees concerning the spreader, the right to use the name “National,” all the patterns and forms used by appellees in the manufacture of the spreaders, and the obligation of appellees to defend •the patents, defend suits for infringement and to prosecute infringers, for nothing during the life of the patent and yet appellants paid to appellees $20,000 in royalties under the patent during the first two and a half years after it was issued, when they say they were not required to pay anything under the contract.

The letter written by appellants September 18, 1907, to appellees and signed by appellants is:

“Moline Plow Company

Moline, Illinois, September 18, 1907. Messes. L. A. Keene, Waterman, Illinois.

Mott E. Pharis, Syracuse, N. Y.

Gentlemen :

We have just learned that our liability to pay you royalties on manure spreaders under our contract with you dated May 24, 1904, long since ended by the issuance of your patent, and that the contract is, and for nearly three years has been, a fully paid up one. The contract specified that royalties should be due and payable ‘only during the life of the application for letters patent of the United States No. 159,567, filed June 1, 1903. ’ This is the application on which your patent No. 773,505, of October 25, 1904, was issued. Our patent counsel advise us that an application for a patent only continues to be a live or pending application until the issuance of the patent, after which it has no life or existence as an application. It seems, therefore, that we have been paying you royalties after the expiration of the time specified in the contract. Now, however, that we have been informed of the fact —the expiration of the application specified—we must decline to pay you any further royalties under the contract or to recognize your right to any.

We deem it only just to you to say that we believe that in receiving royalties that you were not entitled to that you were as ignorant of the fact as we were in paying them.

Tours very respectfully,

Moline Plow Company,

By L. C. Blanding Asst. Secy.

The Mandt" Wagon Company,

By L. C. Blanding, Asst. Secy. ’ ’

This letter with the other evidence established beyond doubt that the parties mutually understood that appellants were to pay royalties during the life of the patent. Even if there were any doubt as to the intention of the parties in making the contract, the interpretation which the parties by their acts under the contract have practically given it, will have weight and may be controlling in arriving at the intention of the parties. Walker v. I. C. R. R. Co., 215 Ill. 619; Whalen v. Stephens, 193 Ill. 121; Close v. Browne, 230 Ill. 228; Street v. Chicago Wharfage & S. Co., 157 Ill. 605; Garrison v. Nute, 87 Ill. 215; Kerz v. Galena Water Co., 139 Ill. App. 598; Bishop on Contracts, sec. 412. It is evident that the appellees were entitled to a reformation of the contract.

The principal question remaining relates to the action of the trial court in refusing appellants the right to set up that the patents were invalid and an infringement on patents held by other parties as a defense tó the accounting, and to secure affirmative relief from liability on the contract by the cross bill.

The tenth section of the contract provides: “The said party of the first part agrees that in the event of their not being able to sustain their patents against infringements, or in the event of National Manure Spreader being found by the decision of a court of competent jurisdiction, to infringe any of the essential features of any patent or patents owned by others, the party of the second part shall be under no further obligation to pay royalties and all such payments shall cease.” By the third section appellees agreed to defend all suits brought against appellants and to pay-all expenses of such defense, and in the fourth appellees agreed to prosecute all infringers. By the agreement appellants are to pay royalties until it has been determined by a court of competent jurisdiction that appellees’ patent infringes on that of others. Appellants are continuing to manufacture the spreaders under the patent, and use the name “National.’’ They are claiming and insisting on all the benefits of the contract, and using the patterns and forms they received from appellees under the contract. So far as can be gathered from the cross bill and the parts of the answer expunged, appellants propose to retain and insist upon all rights they have under the contract and to continue to make the spreaders under the contract, but to discontinue paying royalties. Appellants as licensees of appellees are estopped to raise the question of the validity of the patents while they are receiving the benefits of the patent under the contract and the patent has not been adjudged invalid or to be an infringement on others, and the tenth clause of the contract is the .measure of appellants’ right in that regard. United States v. Harvey Steel Co., 196 U. S. 310; Rhodes v. Ashurst, 176 Ill. 351; Illinois Watch Case Co. v. Ecaubert, 177 Ill. 587; Havana Press Drill Co. v. Ashurst, 148 Ill. 115; White v. Lee, 14 Fed. R. 789; Brown v. Lapham, 27 Fed. R. 77.

A party may not claim the benefits of a contract and at the same time repudiate its burdens. If appellants were not continuing to make the spreaders and were not receiving the benefits of the contract, there would be some reason in their contention that the State court had jurisdiction to consider the invalidity of the patent as a defense to the accounting, and to relieve them from its obligation. We are of the opinion that there was no error in rejecting the defense of the invalidity of the patent under the pleadings in the case and in refusing to relieve appellants from the contract.

While some other questions are presented, the disposition of the principal questions disposes of the remaining questions, as it is not seriously contended that there is any error in the accounting.- Finding no error in the case the decree is affirmed.

Affirmed.


text:
    Laban Hayward, Administrator, Appellant, v. S. S. Sencenbaugh, Appellee.
    Gen. No. 5367.
    1. Corporations—what not defense to action charging stock liability. The fact that the debt against the corporation has been reduced to judgment against it does not preclude the enforcement of individual stockholders’ liability.
    2. Statute of Limitations—when no defense to action to enforce stock liability■ imposed by laws of another state. Held, that the plea in this case which relied upon the Statute of Limitations, was not a defense to the action brought.
    Assumpsit. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding.
    Heard in this court at the April term, 1910.
    Reversed and remanded with directions.
    Opinion filed October 18, 1910.
    Statement by the Court. This is an action in assirmpsit brought by Laban Hayward, as administrator of the estate of William B. Russell, against S. S. Sencenbaugh. It was before this court at a former term and the opinion then filed appears in 141 Ill. App. 395. The case was originally tried upon a declaration consisting of one count. The cause of action sued for in the declaration, when this case was before us at the former hearing, was a liability, under the Kansas statutes, of the defendant Sencenbaugh, as the holder of fifty shares of the capital stock of the Aurora Mining Company, a Kansas corporation, of the par value of one hundred dollars each, to a creditor of the corporation holding bonds of the corporation after it had become insolvent. The original record is not before us—it having been transferred to the Supreme Court (Hayward v. Sencenbaugh, 235 Ill. 580), but the abstract and the opinion show that the declaration averred that the defendant had not paid anything on his stock and the suit was brought to recover the amount of the stock subscription, the averment being “that he had not paid therefor the par value of said shares of stock and he has paid no money whatever upon his original subscription as such stockholder and that the full amount of the par value of said stock is now due and owing.” The general issue and four special pleas concerning which questions are raised were filed, the substance of which is stated in the opinion. Two of the pleas set up that fhe bonds had been merged in a judgment before this suit was begun and certain decisions of the Kansas court of last resort. The replication simply traversed the pleas. The trial court on the hearing found for the plaintiff notwithstanding the pleas were proved by the evidence ; hence this court reversed the judgment and remanded the cause.
    The record in the present appeal does not show any leave to amend the original count of the declaration, yet that count as it appears in this record and abstract avers: “The said defendant was a stockholder in said Aurora Mining Company and was the owner of fifty shares of the capital stock thereof, of the par value of one hundred dollars each; that he has paid therefor the sum of five thousand dollars being the par value of the said shares, but has paid nothing in addition thereto on account thereof.” It also avers a statute of Kansas that dues from a corporation shall be secured by individual liability of the'stockholders to an additional amount equal to the stock owned by each stockholder and that, where certain corporations created under said statute are dissolved leaving debts unpaid, suit may be brought by creditors against any person, a stockholder at the time of such dissolution, to enforce such individual liability; that„the Aurora Mining Company on September 27, 1907,- made its six certain bonds in the sum of $500 each, to the said William B. Russell, payable at Galena, Kansas, on September ,27, 1899, with interest, etc., and that on July 1, 1892, the said Aurora Mining Company suspended business and became insolvent and without assets and unable to pay said indebtedness. By means whereof the defendant became liable to pay the plaintiff the sum of $5,000 being the additional amount equal to the stock owned by him, etc.
    The additional count filed March 7, 1910, by leave of court is identical with the first count in the present record with the additional averments, (1) that the charter of the Aurora Mining Company provides among other things that the places where its business is to be transacted are at Galena, Kansas, and Aurora, Illinois, and that it was doing business in the state of Illinois on September 27, 1897; (2) that on April 17, 1906, in the Circuit Court of DeKalb county, Illinois, in a proceeding by the plaintiff against the Aurora Mining Company for the recovery of the principal and interest due on said bonds a judgment was rendered in favor of plaintiff against the Aurora Mining Company for $8,364 and costs; (3) that said mining company has “remained insolvent, and without assets, arid has not paid and is unable to pay said indebtedness or judgment or any part thereof. ’ ’
    The record also shows that defendant, by leave of court, before the granting of leave to file the additional count, amended the fifth plea by adding thereto a provision of the Kansas statute “that when a right of action is barred by the provisions of any statute it shall be unavailing either as a cause of action or ground of defense.” The plaintiff by leave of court withdrew his replication to the special pleas. On motion of the defendant it was ordered that the pleas also stand as pleas to the additional count. The plaintiff then filed a general demurrer to the 4th, 5th, 6th and 7th pleas to the original and additional counts of the declaration, which was overruled, and the plaintiff abiding by his demurrer, judgment was rendered in favor of the defendant that plaintiff take-nothing by his suit, etc. The plaintiff appeals to this court.
    John M. Raymond and John K. Newhall, for appellant.
    S. N. Hoover and John A. Russell, for appellee.
   Mr. Justice Thompson

delivered the opinion of'the court.

The statements and arguments filed in this court on behalf of appellant (page five of his statement) and appellee (page three of his statement) both allege that the original and additional counts of the declaration aver that Sencenbaugh was a stockholder in the Aurora Mining Company, holding fifty shares of the capital stock of the par value of $100' and that he had paid no money whatever and the full amount of the par value of said stock is now due and owing from the defendant. The two counts in the record and abstract both aver that he has paid $5,000 but has paid nothing in addition thereto. The record on the former appeal contained the averment that Sencenbaugh had not paid anything but the record now before us avers that he has paid his subscription in full, and only declares for the additional liability under the Kansas statute. The misapprehension of counsel for both parties is very surprising.

"When the case was in this court before, we reversed the judgment because the averments of the special pleas were simply traversed, and the pleas were proved by the evidence. Now the declaration contains a count averring that the charter of the corporation authorizes it to do business at Gralena, Kansas, and at Aurora, Illinois; that said “Aurora Mining Company, on September 27, 1897, and from thence hitherto, was doing-business in the state of Illinois, at, to-wit, Aurora, Illinois;” that the corporation issued $3,000 of bonds to plaintiff September 27,1897, due September 27,1899, upon which a judgment was rendered against the corporation in favor of plaintiff in the Circuit Court of DeKalb county, Illinois, in April, 1906; that the corporation became insolvent and without assets July 1, 1902, and from thence hitherto has remained insolvent and without assets and has not paid said indebtedness or judgment or any part thereof; that the corporation suspended business July 1, 1902, and from thence hitherto has not done any business whatever, an averment inconsistent with the previous averment that it was doing business at Aurora on September 27, 1897, and from thence hitherto, and concerning which no question is presented.

The replication to the pleas being withdrawn and a demurrer to them filed the question now raised is, do the pleas or any of them present a defense to the original and additional counts as they appear in this record.

The fourth and seventh pleas aver that the bonds described in the original count were merged in a judgment before the beginning of this suit. The pleas assume that this is a suit simply upon the bonds. The bonds were only evidence of the liability of the corporation and the fact that the corporation had issued the bonds was only one of the links by which a liability of a stockholder is proven. The bonds had been merged in a judgment before this suit was begun, but the original declaration did not go far enough and aver the continuing liability of the corporation by averring the judgment and that it was unpaid. The demurrer was properly overruled to these pleas as pleas to the first count but the pleas do not answer the additional count and the demurrer should therefore have been sustained to them as to the additional count.

The fifth plea sets up the general statute of five years limitation of Kansas within which an action upon an agreement, contract or promise in writing must be brought, and the statute of Illinois that when a cause of action arises in a state out of this state, and by the laws thereof an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this state, and avers that the cause of action did not accrue within five years before the beginning of this suit. The suit is to recover the additional liability of defendant as a stockholder in the Kansas corporation under the laws of Kansas. If the Kansas statute controls, yet the liability does not attach according to the averments of the declaration until the corporation has been dissolved. The dissolution relied upon is that which arises by operation of law under the statute of Kansas by the corporation ceasing to do business for one year. The averment of the declaration is that the corporation ceased to do business July 1, 1902, and therefore became dissolved as to the stockholders’ double liability July 1, 1903, and this suit was begun April 24, 1906; therefore the fifth plea does not state a defense to either the original or amended count and the demurrer to the fifth plea should have been sustained.

The sixth plea sets up the general statute of three years limitation of Kansas within which an action upon a contract not in writing and an action upon a liability created by statute other than a forfeiture or penalty must be brought, and the statute of Illinois, that is set out in the fifth plea, and then avers that the cause of action in plaintiff’s declaration mentioned is a liability, on account of defendant’s subscription to the capital stock of the corporation, created by the statute of Kansas other than a forfeiture or penalty and that the supposed cause of action in the declaration mentioned, did not accrue within three years before the commencement of this suit. The declaration avers that William B. Russell at the time of his death April 1, 1901, and for ten years prior thereto was a resident of Kane county, Illinois, and had not been during any portion of said time in the state of Kansas or owned any property therein. Appellee in his argument (page 33) states “at the time of the maturity of these bonds the Aurora Mining Company and its officers and stockholders were residents at that time and ever since of Kane county, Illinois, the same county in which during the same time the plaintiff and plaintiff’s intestate resided,” thereby stating that the allegation' of the declaration is true. The right to bring the suit against the stockholders accrued July 1, 1903. The suit was begun April 24, 1906, within three year's from the time cause of ’action accrued. The plea therefore, if the Kansas statute pleaded is applicable, does not set forth a defense, without regard to the fact that neither the plaintiff nor the defendant was within the state of Kansas at the time nor since the cause of action accrued. The demurrer should have been sustained to the sixth plea. The judgment is reversed and the cause remanded with instruction to overrule the demurrer to the fourth and seventh pleas as to the first count, and to sustain it as to these pleas as to the additional count and to sustain it to the fifth and sixth pleas to both counts.

Reversed and remanded with directions.


text:
    George D. Brooks et al., Appellees, v. A. J. Ostrander, Executor, Appellant.
    Gen. No. 5370.
    1. Trial—effect given to stipulation as to evidence. Stipulations entered into in open court with reference to certain facts in the case when acted upon will be enforced.
    2. Contracts—when express 'agreement to pay for care and nursing established. s Held, under the evidence, that the claimant, who was a member of the family of the deceased, rendered the services of care a.nd nursing for which compensation was sought, under an express agreement that the same should he paid for.
    Contested claim in court of probate. Appeal from the County-Court of Knox county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    F. L. Brooks and J. C. Stevens, for appellant.
    Hardy, Welsh & Hardy, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

George D. Brooks filed a claim for $360 and Emma Brooks filed a claim for $280 against the estate of Austin Brooks, deceased, for services in caring for the deceased during the last months-of his life. The claims were allowed in the Probate Court and an appeal was taken to the Circuit Court by the executor where the claims were by agreement tried together before a jury. The claims were allowed in full in the Circuit Court and the executor" appeals to this court.

On the trial in the Circuit Court, after the claimants had introduced several witnesses to show that the services were rendered and that the charges therefor were the reasonable value of such services, the attorneys for the estate admitted that the services were rendered and that the amounts claimed were reasonable charges for the services rendered, and stated that the sole defense-was that the claimants were members of the family of the deceased and therefore not entitled to compensation. The appellant objected to appellees encumbering the record by the introduction of further testimony concerning the nature and value of the services, as all the claimants might prove in that regard was admitted. Thereupon no further testimony was offered on that branch of the case.

Counsel for appellant now argue that ‘‘without any intention of here in this court in any manner repudiating said stipulation, yet at the same time we insist that the court below trying this case as it did on appeal * * * should not have allowed said sums even though admitted, if the value and merits of the claims were not substantiated.” In the trial court appellant did not seek to withdraw or modify the stipulation made on behalf of the estate and accepted by appellees. A stipulation entered into in open court with reference to certain facts in a case will when acted upon be enforced. Culver v. Cougle, 165 Ill. 417; Wilson v. Spring, 64 Ill. 14. It would be very unjust to permit appellant to withdraw in this court the stipulation deliberately made in the trial court. Concessions of facts not intended to be controverted should be encouraged and when made should be upheld.

It is contended that the services were rendered by claimants as members of the family of the deceased. The evidence shows that Austin Brooks was an old man suffering from heart disease and other difficulties. His condition was so serious that he needed some one to care for him. Dr. Cowan, the attending physician, testified that from early in July, 1907, until he died in January, 1908, he needed an attendant or nurse; that he could not sleep except when under the influence of drugs; that he was given salts to produce watery stools to relieve the swelling in his legs and body; that his discharges were not controlled, so that it was very disagreeable work to take care of him. His wife died in June," 1907. lie had a son who lived in Chicago and a daughter living in New York. Austin Brooks wrote to his brother, George D. Brooks, who resided in New York, asking him to come and take care of him. George and his wife Emma, with a little grandchild, at the request of his brother, came and took care of the deceased from July until his death, with the exception of a month when George had to return to New York to attend to some business matters.

If services are rendered by one member of a family to another the mere fact of rendering service will not raise an implied contract to pay for suck services. There must be other evidence from which a contract may be inferred. George Brooks was not a member of the family of Austin Brooks; one lived in New York the other in Galesburg, Illinois. It was proved by two witnesses that claimants came from New York at the request of Austin Brooks for the purpose of taking care of him. An express contract may be proven by facts and circumstances which show that both parties at the time the services were rendered contemplated or intended pecuniary compensation other than such as naturally arises out of the family relation. Miller v. Miller, 16 Ill. 295; Heffron v. Brown, 155 Ill. 322; Neish v. Gannon, 198 Ill. 219. The jury could not rightfully have found otherwise than that there was a contract under which the services were rendered by appellee to Austin Brooks, in his lifetime.

It is also insisted that the court erred in giving instructions for appellees. Appellant contends that it was “immaterial where appellees lived prior to the time they came to the house of Austin Brooks or for what purpose they came.” We cannot agree with such contention. Inasmuch as appellees were not competent, witnesses to testify in the cause, it was competent to prove all the attending facts. We find no reversible error in the giving or refusing of instructions.

Under the evidence no other verdict could have been sustained. The judgment is affirmed.

Affirmed.