text:
    Strawn Farmers’ Elevator Company, Appellee, v. James E. Bennett & Company, Appellant.
    Gen. No. 5600.
    1. Principal and agent — who not general agent. Held, under ■the evidence, that the agent in question in this case was not a general one and that he was not authorized to hind his principal to the transactions in grain involved in this case.
    2. Principal and agent — obligation to ascertain extent of authority. Persons dealing with an assumed agent are hound at their peril to ascertain not only the fact of the agency hut the extent of the agent’s authority.

      3. Principal and agent — doctrine of ratification stated. The doctrine of ratification of an unauthorized act is that the principal shall he fully and fairly informed of all the facts and circumstances.
    4. Negotiable instruments — who not agent to execute etc. To constitute an agency to execute promissory notes etc., it is essential that the authority be express or be established by showing that like acts have been performed by the agent and authorized or ratified by the principal.
    5. Amendments and jeofails — when leave to file verified plea at close of all evidence will not reverse. In the absence of an abuse of discretion the so granting of leave to file a verified replication to pleas will not reverse.
    6. Interest — when cross-error assigned for failure to allow interest upon verdict not sustained. In order that a cross error complaining of the failure of the court to allow interest on the verdict from the time of its rendition to the time of the entry of judgment may be sustained it must appear that the omission of the court so to do was pointed out in the trial court.
    Assumpsit. Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed April 25, 1912.

      Certiorari denied by Supreme Court (making opinion final.)
    Moses, Rosenthal & Kennedy and C. F. Carrithers, for appellant; Henry H. Kennedy, Walter Bachrach, S. Sidney Stein and Edward D. Wallace, of counsel.
    A. 0. Norton and F. A. Ortman, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

The Strawn Farmers’ Elevator Company, a corporation, owned and operated an elevator at Strawn, Illinois, and another at Risk, a mile or two distant, where it bought, stored, sold and shipped grain. One J. W. Jordan was in charge of these elevators under a written contract. During the time of such employment he speculated on the Board of Trade in Chicago in the name of the Elevator Company, through James E. Bennett, a broker, formerly doing business as Thomas Bennett & Co., later as James E. Bennett & Co. To pay losses sustained in these speculating transactions, Jordan gave Bennett two checks of the Company aggregating $500 and consigned to him a carload of corn, which was sold for $401.47. Later Jordan consigned two more carloads of corn to Bennett, which were sold for $627 and $380.44 respectively, upon which a draft for $325 was paid. During the period of Jordan’s speculations he gave Bennett a note of the Elevator Company for $1,500 executed by himself as manager, in payment of losses sustained. When the Elevator Company learned of these transactions, it discharged Jordan and brought suit in assumpsit in the Circuit Court of Livingston county against Bennett by the style of James E. Bennett & Company to recover the amount of the checks and the value of the three carloads of corn, less the amount of the draft. The declaration contained the common counts only, to which was interposed a plea of nonassumpsit and a number of special pleas, the only one necessary to mention here being a plea of set-off based on the note. At the close of all the evidence a verified replication was filed, denying Jordan’s authority to execute and deliver the note. There was a verdict for $1,583.91 for the Elevator Company, upon which judgment was entered, and from which this appeal is prosecuted.

It is contended that because appellee might, under its charter, deal on the board of trade in the manner in which the trades were conducted by Jordan, that by constituting him general agent, appellee is bound by his acts. The question presented by this record is not the scope of appellee’s' authority to deal in grain, but the scope of Jordan’s authority to bind it in such transactions.

Appellee’s principal office was at Strawn, and, as above stated, it had but two elevators. Jordan’s contract empowered him “to take charge of the elevator, * * * in the capacity of manager, # * * to conduct all business connected therewith in the way of buying grain and storing or disposing of the same, to fix prices paid for grain * * * to draw bills of lading, to receive and pay out all moneys and make all contracts necessary in the regular transaction in said business of buying, selling and storing grain, to draw drafts and issue checks in the name of said corporation, to keep such itemized books of account showing all business transacted as is customary with grain dealers.” From this we think it apparent that the scope of Jordan’s authority was limited to the transaction of business connected with the elevators at Strawn and Risk, and necessarily the grain to be handled was limited to the grain which was handled in connection with such elevators. The contention that Jordan was appellee’s general agent is not borne out by the proof. He was not so designated in the contract. He never signed his name as such. He never held himself out to be appellee’s general agent. All his transactions in connection with the elevators and every paper signed by him as manager is entirely consistent with the position of local manager of the elevators. We are' of the opinion that the scope of Jordan’s authority was not such as to bind appellee in board of trade transactions.

It will be observed from the quotation from Jordan’s contract, that he was not expressly authorized to execute and deliver negotiable paper.

In Railway Equipment and P. Co. v. Bank, 82 Hun 8, which was an action brought to recover for the conversion of certain checks belonging to the plaintiff, it was held that the fact that the agent there was held out as the manager of the business of the corporation in no way authorized the conclusion, that he had the right to bind the corporation by his signature to commercial paper.

In New York Iron Mine v. Bank of Negaunee, 39 Mich. 644, it was held that a general agent, without being specially empowered so to do, had no authority to make promissory notes in the name of his principal, and that, where a general agent in Michigan was accustomed to endorse the company’s paper for collection or discount, and to draw on the treasurer in New York for the current needs of his corporation, and his drafts were duly paid, this could not imply authority in the agent to make promissory notes in the name of the corporation.

It is true that Jordan was the manager of appellee’s elevators and managed the business of running them; but, “An agent having general authority to manage his principal’s business has, by virtue of his employment, no implied authority to bind his principal by making, accepting or endorsing negotiable paper. Such' an authority must be expressly conferred or be necessarily implied from the peculiar circumstances of each case. It may undoubtedly be conferred and by implication, but it will not be presumed from the mere appointment as general agent.” Mechem on Agency, sec. 398.

“When the authority to execute or endorse a negotiable instrument is sought to be deduced from an agency to do certain other acts, it must be made to appear affirmatively that the signing or endorsement of such an instrument was within the general objects and purposes of the authority which was actually conferred. And in interpreting the authority of the agent, it is to be strictly construed.” Daniel on Negotiable Instruments, Yol. 1, 3rd Ed., Sec. 292.

“The nature and extent of an implied authority are deemed to be limited to acts of a like nature with those from which it is implied.” 1 Am. & Eng. Ency. of Law, 2nd Ed., p. 1002.

It is not shown by any evidence whatever in the record, that Jordan ever executed and delivered a promissory note for appellee, except the note here in controversy, and it is not proven that he ever did any such act which was approved or ratified by appellee after it was done.

It was held in the case of Jackson Paper Company v. Commercial Bank, 199 Ill. 151, that proof that an agent was superintendent and manager of a mill, having charge of buying material and manufacturing and selling paper, did not justify an inference that he had authority to endorse checks, and surely the same facts, or the facts in this case, would not justify an inference that Jordan had the more unusual power to speculate in the name of appellee and make and deliver negotiable paper in payment of losses sustained in such transactions. We fail to discover anything in the record in the present case to show that the power to make and deliver the promissory note in controversy was within the general objects and purposes of the authority conferred upon Jordan.

Appellant next contends that as he had no knowledge of the existence of Jordan’s contract of employment, it was error for the court to admit the same in evidence over his objection. The object of its admission was to show the limitations of Jordan’s authority.

Appellant had an agent living within five miles of the elevators under the charge of Jordan, through whom his board of trade transactions were negotiated. This agent knew that Jordan’s business was that of operating the elevators at Strawn and Eisk, and that he made no claim to being more than local manager of these elevators, and such knowledge on the part of the agent was the knowledge of his principal. Appellant’s dealing with Jordan under such circumstances was on the assumption that Jordan had authority to conduct the board of trade transactions. It is to be remembered that persons dealing with an assumed agent are bound at their peril to ascertain not only the fact of the agency, but the extent of the agent’s authority. They are put upon their guard by the very fact that they are dealing with an agent, and must, at their peril, see to it that the act done by.him is within his power. It is their right and duty to ascertain the extent of his power, and to determine whether his act comes within the power and is such as to bind his principal. Mechem on Agency, Sec. 276; Reynolds v. Ferree, 86 Ill. 570; Merchants’ Nat. Bank v. Nichols, 223 Ill. 41. We are therefore of the opinion that it was not error to admit in evidence Jordan’s contract of agency.

It is also contended that appellee ratified Jordan’s board of trade transactions. The doctriné of ratification of an unauthorized act is that the principal shall be fully and fairly informed of all the facts and circumstances. Cadwell v. Meek, 17 Ill. 219; Mathews v. Hamilton, 23 Ill. 416; Reynolds v. Ferree, supra. It is true that the evidence shows that in each instance a written confirmation of the purchase or sale in Jordan’s speculations was sent by mail and addressed to appellee; that such confirmation showed the amount, price, future and the parties of whom the grain was bought o.r to whom it was sold and that an account was sent by mail to appellee at the end of each month, but the evidence also shows that the same were received by Jordan; that none of the directors or officers of appellee, other than Jordan, had any knowledge of such transactions, and that the records of such transactions were not kept in the regular books of appellee, but that they were kept by Jordan in a private book, and that this book was not seen by any of the directors or officers of appellee other than Jordan. It is obvious that appellee was not “fully and fairly informed” of the circumstances of Jordan’s transactions and cannot, under the law, be held to have ratified the same.

Complaint is made of the court’s giving appellee’s 3rd, 5th, 6th and 7th instructions.

Tlie criticism of the third is that it excludes from the consideration of the jury all evidence of a ratification unless the ratification be at the time of the improper transaction. It is doubtful if the language of the instruction will bear such a construction, but even if true, there was no evidence of any ratification, and for that reason the distinction raised by counsel is ineffective.

The fact that there was no evidence of ratification also answers the first criticism made to the fifth. The further objection that this instruction was calculated to give the jury the impression that Jordan’s transactions were gambling ones is not tenable, as it does not assume that his transactions were such. If it did, it was cured by other instructions which plainly told the jury that there was no evidence of any gambling transactions.

It is urged that appellee’s.sixth instruction is subject to the same objection as the fifth and also that it ignored appellant’s theory that Jordan had either express or implied authority to make the deals in question. The contract defining Jordan’s powers being in writing,- and undisputed, the question whether it expressly or impliedly empowered him to make such deals became one of law for the court, and not of fact for the jury.

Appellee’s seventh instruction told the jury that the contract did not authorize Jordan to engage in the purchase and .sale of grain on the Board of Trade in Chicago, except such grain as was handled by him through the elevators of appellee, or by means of cars on track or in a territory tributary to Strawn, and that they should find for appellee unless they found that it knowingly permitted Jordan to buy and sell grain on the board of trade in Chicago, in its name disconnected with the actual grain dealt with in the locality of Strawn. We think this instruction in harmony with the views we have herein before expressed on the question of the scope of Jordan’s authority and therefore not subject to the objection raised against it.

It is urged by counsel for appellant that the action of the court in allowing the verified replication to the plea of set-off to be filed at the close of all the evidence was an abuse of discretion, and say, in support of their position, “While we understand that it is á matter of discretion for the trial court to allow the filing of pleadings, yet we know of no case which can be pointed out where the action of the trial court in allowing the filing of a pleading under circumstances like the case at bar was affirmed.” They have not called our attention to a case that has been reversed where the discretion of the trial court was exercised under like circumstances. Moreover, the bill of exceptions discloses no exception to the ruling of the court on that question. This trial and judgment and bill of exceptions were before the amendment of 1911 to the practice act went into force. If a proper exception had been preserved the ruling would not have been an abuse of discretion under the facts appearing in this record, as the only purpose of the verified replication would be to put appellant on proof of the execution of the note before it .could be admitted in evidence. Before the leave was granted the note had been introduced in evidence. If the filing of the replication in any way prejudiced appellant’s rights, he should have made a showing why he could not proceed further with the trial and ask for a continuance. No such motion was made. He chose to go on with the trial. The record shows that the evidence on both sides was then all in and there is nothing to indicate that appellant could or would have produced other or different evidence concerning the consideration or the execution of the note if the replication had been filed before the trial began. Clearly it was not an abuse of the discretion of the trial court to permit the replication to be filed.

The verdict was rendered on December 1, 1910. The judgment was not entered thereon until February 13, 1911, and then for the amount of the verdict only. Appellee assigns a cross error on the failure of the trial court to allow it interest from the date of the verdict to the date of the judgment. It is a sufficient reply to connseFs argument to say that at the time the judgment was entered the court’s attention was not called to appellee’s right to recover interest. The court was not asked to rule on that subject, and there is nothing in the record to warrant the assignment of the cross error. The affirmance disposes of the motion, taken with the case, relating to the abstract.

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

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Lena Rutz et al., Appellants, v. Hilka Oltman, Appellee.
    Gen. No. 5610.
    1. Suretyship — when obligation arises. As between principal and sureties, the obligation to make good a default is upon the principal so long as he has anything with which to do so; it is only after the exhaustion of his resources that the obligation of the sureties arises.
    2. Contribution — when doctrine of enforced. As between co-sureties the doctrine of contribution is recognized and enforced.
    Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    A. C. Norton and F. A. Ortman, for appellants.
    C. C. & L. F. Strawn, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

On April 28, 1893, Wm. Rutz was appointed administrator of the estate of Emma Cummings, and on June 24, 1895, guardian of her two children, and gave a bond in each capacity, signed by his father, John Rutz, Sr., and his father-in-law, George J. Oltman, as sureties. He got behind in his accounts as such administrator and guardian and on November 20, 1899, judgments were rendered against him. Chas. H. Tuesberg succeeded him in both capacities. On March 10, 1898, Oltman conveyed his real estate to Hilka Oltman, his wife, by two separate deeds. He died September 11, 1898. John Rutz, Sr., died September 9, 1898, leaving a will which was held to be invalid. He left surviving him Reitze Rutz, his widow; Wm. Rutz and John Rutz, Jr., his sons and Myrta Miller, an only child and heir of a deceased son. On December 4, 1899, John Rutz, Jr., died intestate leaving surviving him Lena Rutz, his widow; and John A. Rutz and Roy Rutz, his only children. On August 19, 1899, Wm. Rutz conveyed his interest in the lands of John Rutz, Sr., to his mother-in-law, Hilka. Oltman. On November 26, 1900, she paid half the indebtedness of Wm. Rutz for which the estates of John Rutz, Sr., and George J. Oltman were equally liable as bondsmen. On March 15, 1900, the balance due on the judgments was presented against the estate of John Rutz, Sr., and judgments rendered in favor of Tuesberg as administrator and guardian. John Rutz, Sr.’s personal property was insufficient to pay his debts, and on December 4, 1900, the administrator of his estate filed a petition in the County Court of said county for an order to sell real estate. It was decided that the interest which Hilka Oltman acquired in the lands by her deed from Wm. Rutz . was subordinate to the rights of the creditors of said estate; and that the administrator first apply the interest of Wm. Rutz in payment of the judgments before applying the interest of the other heirs, and any sums that might remain out of Wm. Rutz’s interest be paid to Hilka Oltman. In that proceeding 58 acres were set off to Reitze Rutz for dower and homestead and the interests of all the heirs in 80 acres were sold. For some reason not appearing here, a tract of 22 acres was not sold. The balance due on the judgments was paid and the remainder of the proceeds equally divided between Myrta Miller and the heirs of John Rutz, Jr., nothing being paid to Hilka Oltman. After the sale and the assignment of dower, John A. Rutz took possession of the 22 acres, collected some rents and sold some grain raised thereon to Kirkpatrick, Lackland & Oo. Hilka Oltman notified Kirkpatrick, Lackland & Co. that she claimed one-third of the grain grown on said premises and brought suits before a justice of the peace of said county against John A. Rutz and Kirkpatrick, Lackland & Co. to recover one-third of the rent and grain. She obtained judgments in both cases, which were appealed to the Circuit Court of said county. Reitze Rutz accounted to the heirs for the use of two-thirds of the lands not assigned to her as homestead and dower for the two years immediately following the death of John Rutz, Sr., and paid the other third thereof to Hilka Oltman. A. C. Norton and Frederick W. Winkler became interested in the land through a transfer from Myrta Miller.

On October 2, 1903, Myrta Miller and Joseph Miller, her husband; A. C. Norton and Annie S. Norton, his wife; Frederick W. Winkler and Bertie Winkler, his wife; Lena Rutz, John A. Rutz and Roy Rutz filed a bill in chancery in the Circuit Court of said county making Reitze Rutz and Hilka Oltman defendants, setting forth the foregoing facts in detail and in substance the decree of the County Court, and praying for partition and assignment of dower to Lena Rutz in the 22 acres, and that if the lands be sold, ont of the portion deeded by Wm. Rutz to Hilka Oltman a sufficient amount be paid the complainants to reimburse them for their moneys 'wrongfully applied to the payment of the debt of Wm. Rutz, and interest thereon; and for an accounting between Reitze Rutz, Hilka Oltman and complainants, and that Hilka Oltman be restrained from further prosecution of the suits pending on appeal until the rights of the parties were ascertained. Hilka Oltman and Reitze Rutz answered the bill. Hilka Oltman filed a cross-bill which she afterwards withdrew and filed an amended answer in which she did not deny the specific allegations of the bill, but denied the validity of the County Court proceedings and the legal conclusions sought to be drawn by complainants from the allegations of the bill. Later Reitze Rutz died, and the 58 acres became similarly situated as the 22 acres, and was brought into these proceedings by a supplemental bill. The case was referred to the master, and while pending before him it was stipulated that there might be a partition or sale of the lands, and if a sale, the moneys held without prejudice to the contentions of any of the parties, pending the final order of distribution; that the judgments pending on appeal from the justice court were correct in amount; that the rent paid Hilka Oltman by Reitze Rutz was correct in amount; and that the court in the chancery cases might take jurisdiction of the entire subject of rents and costs in the cases pending on appeal from the justice court and that those cases should be held in abeyance until the decision of the case at bar. Lena Rutz consented that her dower interest might be sold, and the land was sold.

The court heard the evidence bearing on the interest of the parties in the fund arising from the sale, and decreed that the money received from the interest of Wm. Rutz in the estate of John Rutz, Sr., conveyed to Hilka Oltman should he applied in the reduction of the entire indebtedness for which John Rutz, Sr., and George J. Oltman were liable as bondsmen; that Hilka Oltman should be subrogated to the rights of George J. Oltman as to any money she may have paid on his behalf, and that the deficit remaining after applying the entire interest of Wm. Rutz should be borne equally by Hilka Oltman and the estate of John Rutz, Sr., and gave Hilka Oltman the rents accruing from the interest of Wm. Rutz in his father’s estate during the litigation, and directed the master to pay her out of the share of John A. Rutz, one-third of the rents which he had collected from the lands, with interest thereon, and out of the moneys of John A. Rutz to pay the costs of his appeal ease from the justice court, and directed that the cost of the proceedings should be paid out of the general fund, and for lack of jurisdiction, made no order in the suit of Hilka Oltman against Kirkpatrick, Lack-land & Co. and ordered the master to distribute the fund accordingly. From this decree the complainants prosecute this appeal.

Appellants’ main contention is that the court erred in holding that Hilka Oltman should be subrogated to the rights of George J. Oltman; that George J. Oltman or Hilka Oltman had no interests or rights in the land inherited by Wm. Rutz from his father’s estate so long as Wm. Rutz was liable to the estate of John Rutz, Sr., for moneys which that estate had paid out as surety for Wm. Rutz and for which it had not been reimbursed. This contention is not tenable for the reason that it ignores the doctrine of contribution between sureties and the further fact that Wm. Rutz was obliged to pay his own indebtedness so long as he had anything with which to pay before the sureties would be called upon to complete the obligation. If it be conceded that appellants’ contention is true, that Wm. Rutz obtained title by descent from John Rutz, Sr., his father, and that therefore his indebtedness to his father for his half of the bonded liability must be deducted from it, the result claimed by appellants would not follow. The situation then would be that here are two sureties, and a defalcation for which they are both equally liable, and one of them has paid half and the other one has collected a large sum from the principal debtor. In such ease, in our opinion, the surety who had paid would be entitled to contribution from the one who had obtained funds from the principal debtor. When it was fully ascertained how much the loss to the sureties was after the property of Wm. Rutz had been made to respond, that loss should be shared equally between John Rutz, Sr., and George J. Oltman if they had both been living, and between their representatives, they both being dead.

Much is said in the argument of counsel for appellants about the deeds from George J. Oltman to his wife and the deeds from Wm. Rutz to his mother-in-law being made in bad faith and for the purpose of hindering and delaying Wm. Rutz’s creditors and the creditors of George J. Oltman by reason of his joint liability and indebtedness with John Rutz, Sr., on the Wm. Rutz bond, and that Hilka Oltman had knowledge of the defalcation of Wm. Rutz and of the joint liability of her husband and John Rutz, Sr., on the bonds of Wm. Rutz as administrator and guardian, and knew that Wm. Rutz was insolvent and could not reimburse his sureties and that she took the deeds with knowledge of these circumstances. As she had paid half the bonded liability, or half the amount of the judgments obtained upon the liability accruing on the bonds, which is all she could be compelled to contribute as between the Oltman suretyship, it is immaterial in a controversy between these two sureties or their heirs at law or legal representatives for what purpose the deeds were made. The deeds recited a money consideration. Hilka Oltman testified that the deeds were given her to take the place of a will. The disparity "between the nature of the consideration expressed in the deeds and that stated in Hilka Oltman’s testimony liad no bearing on this case, since she paid half of the judgments or bonded obligation, the only amount for which her husband’s estate could be held, as between the sureties. Counsel’s argument would present a different question if the other half of the bond liability or judgment had not been paid and the representatives of the Cummings estates were attacking these deeds. So too, there is proof that the deed from Wm. Eutz to Hilka Oltman was made in payment for an indebtedness which she had paid for him some years before, and no evidence to the contrary. The decree ignores the deed from "Wm. Eutz to Hilka Oltman and she has assigned no cross-errors thereon. It is therefore immaterial whether it was valid or void.

The real controversy in the case is this: By the sale of the interest of Wm. Eutz in the lands in question a considerable portion of the defalcation was made. Appellants contend that as the Oltman half had been paid and only the John Eutz, Sr., half remained to be paid, and as Wm. Eutz could not inherit land from his father except subject to what he owed his father for this bond liability, that the John Eutz, Sr., estate, and through it, its heirs, is entitled to have the benefit of all that was made out of the land. In fact, when a considerable portion of this defalcation had been made out of Wm. Eutz’s land or share of the estate the final deficiency to be made up by the sureties was thereby greatly reduced, and it resulted that Hilka Oltman had in fact paid much more than half of the final deficit. The court held that she was entitled to be reimbursed for the excess paid by her in the distribution of the share arising from the sale of the interest of Wm. Eutz. If we concede that appellants’ position is true; that because Wm. Rutz obtained title by descent from his father, and that therefore his indebtedness to his father for his half of this bonded liability must be deducted from it, the result claimed by appellants would not follow. The situation then would be that here are two sureties and a defalcation for which they are both equally liable, and one of them has paid half and the other one has collected a large sum from the principal debtor. Therefore we hold that the order of distribution complained of was made upon the right basis, and the heirs of John Rutz, Sr., are bound, in law to contribute to Hilka Oltman her proportion of what they had collected from the sales of the land of the principal debtor.

As Hilka Oltman had a deed of Wm. Rutz’s undivided third of the land involved in this proceeding, which had not been set aside, one-third of the rents therefor accrued to her and not to the administrator. As it was stipulated that the equities arising over the rents might be adjusted in this proceeding, the court did not err in affirming the judgment for rents then pending on appeal from the justice of the peace in favor of Hilka Oltman against appellant, John A. Rutz.

The briefs of counsel bristle with many figures of a very confusing character, but being satisfied that the principle of the decree is right, and that if there is any mistake in the figures, the mistake is injurious to appellee and not to appellants, there is no call for ns to discuss the figures in detail.

Some complaint is made about the order as to the costs in the justice case, but we apprehend that the decree will not be enforced to compel John A. Rutz to pay more than he is liable for. The costs of the controversy over the distribution were ordered to be paid out of the general fund and apparently no one but appellee was injured thereby. It is quite probable that appellee was not allowed the full amount due her on account of not allowing her interest on her payment of half the indebtedness, but she has not assigned cross-errors, and she must be treated as satisfied with the decree.

Finding no error in the record, the decree of distribution is affirmed.

Affirmed.


text:
    L. G. Vincent, Appellant, v. Joseph Riling et al., Appellees.
    Gen. No. 5611.
    1. Justice of the peace — how form of action determined. In a suit begun before a justice, tbe action is wbat tbe proof makes it, regardless of tbe name which the plaintiff or the justice may give it.
    2. Landlord and tenant — extent of lien of former. Where a tenant removes from demised premises the landlord having a lien for his rent may take possession and having done so may proceed to perform the tenant’s unperformed covenants and it is only the surplus of property remaining that has to be turned over to the tenant or to his assignee.
    3. Trover — when action does not He. If the original taking was rightful and if the detention was rightful there is no conversion and trover does not lie.
    Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded..
    Opinion filed April 25, 1912.
    B. W. Adsit, A. C. Norton and E. A. Ortman, for appellant.
    G-. L. Lottderback, R. S. McIldufp and B. R. Thompson, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

On February 5,1908, Mary Eiling, by Joseph Eiling, her husband, as agent, rented a farm in Livingston county to Otis Crouch, from March 1 of that year to March 1, 1909. By the terms of the lease the tenant agreed to deliver as rent among other things, half of all the corn raised on the leased premises. In July, 1908, the tenant gave a note secured by a chattel mortgage on his undivided half of 80 acres of corn growing on the leased premises to C. A. Vincent. On September 24, 1908, after the corn had been partially gathered, the landlord caused a notice terminating the tenancy to be served on the tenant and the latter thereupon vacated the premises and the landlord took possession of the premises and husked and cribbed the corn. The mortgagee, learning that the landlord had taken- possession of the corn directed a constable to foreclose the chattel mortgage. The constable found part of the corn cribbed and part still standing in the field unhusked. He took two or three ears of the corn from the crib and notified the landlord’s man in charge that he had taken possession of the corn under the mortgage, posted notices, sold the tenant’s undivided interest in the corn to L. G-. Vincent, who took symbolical possession of the corn by taking two or three ears away with him. The landlord sold and delivered the corn to a third party and received money therefor.

L. Gr. Vincent, the purchaser at the sale, brought suit against the landlord and her agent before a justice of the peace of said county to recover the value of the tenant’s undivided half interest in the corn, which he claimed as purchaser at the mortgage sale, and obtained a judgment from which defendants appealed to the Circuit Court of said county. On the trial the landlord sought to set off as counter-claim that she was entitled to be paid her rent and the cost of harvesting and marketing the crop and damages for various breaches of the covenants of the lease, which provided that the expense of doing whatever the tenant had agreed to do and failed to do should be added to the rent. At the close of all the evidence the court held that the justice of the peace had no jurisdiction of the subject matter of the suit, discharged the jury and dismissed the case, and plaintiff below prosecutes this appeal.

Appellees assign cross-errors, and each party contends that the decision of the court was erroneous. Appellant asks that the judgment be reversed and the cause remanded. Appellees ask that the judgment be reversed and judgment for costs be entered in this court in their favor, and that the cost of the additional abstract be taxed to appellant.

The bill of particulars was for damages for the taking and converting of an undivided one-half of all the corn raised on a certain farm by Crouch, as a tenant in 1908, and the trial court held that this was an action for the conversion of the corn and that a justice had no jurisdiction and he dismissed the suit for want of jurisdiction. In Doherty v. Schipper & Block, 157 Ill. App. 413, on page 422, we held that in a suit begun before a justice, the action is what the proof makes it, regardless of the name which the plaintiff or the justice may give it, and we there cited many eases in Illinois, where that rule had been applied. Therefore the fact that the plaintiff called this, in his bill of particulars, an action for taking and converting an undivided one-half of corn did not make it such, but the question what the action really was depends upon what cause of action the proof showed plaintiff had against defendants. Section 31 of the Landlord and Tenant Act gives the landlord a lien upon the crops, not only for the rent, but also for the faithful performance of the terms of the lease, and Section 33 provides that, if the tenant removes from the premises, the landlord may seize the crops and harvest them and apply the proceeds upon his labor and expenses and for the rent. This lease wRs for cash rent as to the grass land and one-half the corn and two-fifths of the oats. It required the tenant to do many things in relation to the land, for the destruction of weeds, to work the road tax, to haul and distribute tile, to trim hedges, bum hedge cuttings, fill tile ditches after tile was laid, haul material for repairing of buildings and fences, keep all tile outlets clear, etc. In the lease the tenant requested that if the tenant failed to perform these covenants, the landlord should perform them and charge the expense thereof and the damage thereby to the tenant and made the same an addition to the rent. The landlord took possession of this farm in August or September. He claimed that he and the tenant divided the corn. The tenant denied it. The tenant admitted that he left the premises. The landlord claimed that the tenant had failed to perform many of the covenants and that he proceeded to do what the tenant had failed to do and incurred certain expenses in so doing and suffered a certain amount of damages by the tenant’s failure to act. The landlord took and sold the entire crop. Appellant’s father had a mortgage on the tenant’s share of the crop and, after the tenant had left, made an alleged symbolical seizure of the com under his mortgage and advertised and sold it under the mortgage and appellant bought it. In Bates v. Halinan, 220 Ill. 21, it was held, under a similar lease, that there could not be distress for rent for such damages^ under a lease. But this is not a cause of distress. The landlord did not distrain under the statute. It is held that the landlord’s lien, under the sections above referred to, does not require a distress warrant for its enforcement, and that a landlord may take possession of the crops to enforce that lien, in Wetsel v. Mayers, 91 Ill. 497, and Frink v. Pratt, 130 Ill. 327, 333. Under these authorities, the landlord conld take possession (especially when as here the tenant abandoned the farm), conld harvest the crop, perform the covenants left unperformed by the tenant, sell the crop and reimburse himself for his rent and expenses and damages for non-performance of the covenants, before he would owe anything to the tenant therefrom. The mortgage in this case was expressly subject to the lien of the landlord. None of the landlord’s acts in this case were wrongful, but as the result of his acts he had received certain moneys and paid out certain moneys. If there is anything left after the payment of rent and the expenses of performing the covenants in the lease and satisfying the damages for nonperformance of the covenants, that and that alone would belong to the tenant and may be claimed under the mortgage. The action therefore in fact is by the purchaser at the mortgage sale to recover what, if anything, is left in the landlord’s hands of the proceeds of the corn, after all the things for which the statute and the lease gave the landlord a lien have been satisfied. As. the taking and the selling by the landlord was lawful, there was no conversion and no action of trover was in fact before the court, but the action was really in assumpsit on an implied promise to pay the residue of the proceeds, if any.

It is substantial justice that the landlord shall have all that his lease gives him before the buyer under this chattel mortgage shall have any rights. To let this mortgagee take the tenant’s share of the corn with his covenants unperformed would be a serious injustice to the landlord. The costs, including the additional abstract, will be divided equally between the parties.

Reversed on errors and cross-errors o,nd remanded.


author: Mr. Presiding Justice Freeman

text:
    John F. Devine, Administrator, Appellee, v. Chicago & Calumet River Railroad Company, Appellant.
    Gen. No. 16,073.
    1. Saeety Appliance Act — who common carrier 'within meaning of. Held, under the evidence in this case, that the defendant was a common carrier within the meaning of the federal and state Safety Appliance Act.
    2. Safety Appliance Act — construed. Held, upon authority of Luken v. L. S. & M. S. Ry. Co., 248 Ill. 877, first that the duty of the carrier is absolute under both federal and state statutes to equip and maintain safety appliances as those statutes require without question as to reasonable care or absence of intentional violation of the acts. Second, that it was not error to submit the cause to the jury under separate counts on each statute, the federal and state acts, but that it would have been error to require plaintiff to elect under which counts to submit it. Third, that the deceased by going between the cars did not assume the risk under either statute. Fourth, that although one of the cars- between which, in the case at bar, the jury was inflicted, was empty, it was “being hauled from one point in Illinois to another in the same state,” and, “the law applies as well to empty cars as to loaded cars,” that, “the character of the traffic the car was being used for at the time of the injury is to be determined from the proof as to the points between which the car was being moved at the time,” whether the road “was an interstate road and whether the car was sometimes used in interstate traffic or not.” Fifth, that the acts in question are to he liberally construed, though penal, and “are not to be construed so strictly as to defeat the obvious intention of the legislature,” since “tlie design to give relief was more dominant than to inflict punishment.”
    3. Instructions — when technical errors will not reverse. Where it is apparent that the jury have not been misled and the result is substantially correct technical errors do not afford sufficient ground for the reversal of a judgment.
    Action in case. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed March 14, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by tbe Court. In this action appellee seeks to recover for personal injuries resulting in the death of one Yirgil Knox April 20,1907. The deceased was an employe of the defendant, and was at work when injured in the private enclosure of the Western Steel Car and Foundry Company at Hegewisch, Illinois. This enclosed yard of the Foundry Company contained about 120 acres. The accident occurred upon the railroad tracks owned and used by defendant. Deceased was foreman of the switching gang with which he was working the night of the accident. They were handling cars which had been delivered in the yard by different railroads. The deceased had worked for appellant more than a year. He had acted as foreman for several months. The accident happened at a point where there was a sharp curve in the defendant’s track. It is said the curve was such that cars, when brought together, came within eight inches of each other on the inside of the curve, and that no coupler was known at the time of the accident which would automatically couple by impact on such a curve. There is testimony tending to show it was the custom of deceased and his gang of switchmen, when called on to couple to a car standing on the curve at the place in question, to push the car beyond the curve to where the track was straight enough to permit the cars to couple automatically.

      At the time of the accident an engine had been pushing an empty car westward toward a Pennsylvania car, the east end of which was at or near the point of the curve. The deceased had been walking beside the track a few feet from the west end of an empty ear that was being pushed west toward the partly loaded Pennsylvania car. The cars came together but did not couple, and the impact sent the Pennsylvania car westward a short distance along the track and up a slight incline, which it is said had existed unchanged since the tracks were originally located. The westward motion of the train had ceased and the engine had stopped at a point which left the west end of the empty car standing at the so-called point of the curve. The de-ceased apparently had started to follow the Pennsylvania car, but if he did so he turned back and placed himself between the tracks at the west end of the empty car and near the south rail of the track. "While he was standing there the Pennsylvania car of its own motion and by force of gravity started back down the incline and ran against the west end of the empty car, catching the deceased between the two cars and inflicting injuries causing his death.
    Prank M. Cox and E. J. Fellingham, for appellant; Andrew E. Sheriff, of counsel.
    James C. McShane, for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

Counsel have filed in this case briefs and supplemental briefs containing about 313 pages. We cannot within limits appropriate to an opinion undertake to follow these arguments in detail.

Defendant’s counsel state their first contention as follows: That in each count of the declaration “appellee charges that the proximate cause of the accident was the improper condition of the coupler. He did not prove this averment. The evidence proves beyond question that the proximate cause was the acuteness of the curve and the grade in the track at the place in question, with both of which and with the fact that the acuteness of the curve made it impossible to couple cars automatically by impact at that place, deceased and the men under his direction were familiar. Hence the proximate cause of the accident as proven by the evidence was not averred in any count, and did not establish a cause of action against appellant if it had' been for the reason it was not in any degree the result of negligence on the part of appellant. It was a risk assumed by deceased.” Hence, it is claimed, the trial court erred (1) in denying appellant’s motions for a directed verdict; (2) in refusing certain of appellant’s instructions as to proximate cause and assumed risk; (3) in denying appellant’s motions for a new trial and in arrest of judgment; and, (4) in entering judgment on the verdict.

It is urged secondly that plaintiff (appellee) averred in each count of his declaration that deceased was in the exercise of ordinary care in going, between and while between the ends of the cars where he was injured, but did not introduce evidence to support these averments; that on the contrary, by undisputed evidence it appears deceased was guilty of gross contributory negligence.

The third contention is in substance that plaintiff in certain counts of his declaration avers that defendant was a common carrier operating a railroad engaged in moving traffic between points in the State of Illinois; that defendant negligently and contrary to the statute hauled and used in moving traffic between points in said State of Illinois a certain car with a defective coupler and of such kind and construction that it could not be coupled from the side of the car without the necessity of the switchman going between the ends of the cars; that it is averred in other counts that defendant was then and there engaged in moving interstate traffic; that there is no evidence to support either averment ; that the trial court erred in giving and refusing other instructions and that the damages allowed are excessive.

Two counts of the plaintiff’s declaration are based upon the Federal Safety Appliance Act of March 2, 1893, amendments thereto (chap. 196, sec. 2, 27 Stat. at L. 531; U. S. Comp. Stat. 1901, p. 3174), and the Federal Interpretive Act of 1903; (chap. 976, sec. 32, Stat. at L. 943; U. S. Comp. Stat. Supp. 1905, p. 603.) Two other counts are based upon an alleged violation of the Safety Appliance Act of 1905 of the State of Illinois. (Hurd’s E. S. 1908, p. 1709.) The federal acts relate to interstate and the State act to intrastate traffic. It is claimed that this is the only material difference between them. The federal act provides that it shall be unlawful for any common carrier “to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers, coupling automatically by impact and which can be uncoupled without the necessity of men going between the ends of the ears.” (Section 2, U. S. Comp. Stat. 1901, p. 3174.) By an amendatory Act of March 2, 1903, the phrase “any ear used in moving interstate traffic” is to be “held to apply to all trains, locomotives, tenders, cars and similar vehicles used on any railroad engaged in interstate commerce.” In section 8 of the Federal Act it is further provided that any employe of any common carrier who may be injured by any locomotive, car or train “in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk thereby occasioned although continuing in the employment of such carrier after the unlawful use of such locomotive, car or train had been brought to his knowledge.” The Illinois Safety Appliance Act is apparently modelled after the Federal Act. Section 9 is in substance a copy of'section 8 of the Federal Act, except that it provides that any snch employee shall not only “not be deemed to have assumed the risk thereby occasioned,” but adds, “nor to have been guilty of contributory negligence because of continuing in the employment of such common carrier or in the performance of his duties as such employe after the unlawful use” has been brought to his knowledge. Section 8 of the Federal Act containing the provision relating to assumed risk has been construed as impliedly eliminating both assumed risk and contributory negligence, while both these defenses are expressly eliminated by the State Act. It is said that by instructions complained of in this case the trial court treated the question of contributory negligence as the same under all counts of the' declaration, and plaintiff insists it is immaterial whether the use of the cars in question was a violation of the Federal or State Acts, that if it violated either it violated both.

That defendant is a common carrier there is evidence tending to show. Under the constitution of this State however (Sec. 12, Art. 11) all railways are “declared to be public highways and shall be free to all persons for the transportation of their business and property thereon.” To the like effect is section 22 of an Act in reference to the operation of railroads (E. S. p. 1677), which provides that every railroad corporation shall furnish, start and run cars for the transportation of such passengers and property as shall be ready or offered for transportation upon due payment or tender of payment of tolls, freight, etc. In P. & P. U. Ry. Co. v. C. R. I. & P. Ry. Co., 109 Ill. 135-140, the defendant’s principal business was switching cars for other railroad companies, and it was held to be “a common carrier of cars” with or without freight. The court says: “As to the freight the car contains it will be conceded such carrying roads are common carriers and are subject to the strict liability of such carriers.” In the case at bar there is evidence that the defendant handled cars containing freight which were delivered to it by other roads. These cars contained coal and the material ont of which were bnilt new cars and “were loaded when they came in.” They “were regular freight cars,” and defendant was clearly a common carrier within the meaning of the federal and state safety appliance acts.

It is contended in behalf of defendant, appellant herein, that the deceased when hurt was engaged in a switching operation which had nothing to do with interstate or intrastate traffic, that consequently neither of these safety appliance acts applies and the defendant is not liable under them. The plaintiff, it is argued, dismissed the common law counts of his declaration, ¡and if defendant is not liable under the federal and state safety appliance acts there can be no liability in this action. Defendant contends that the switching operation in which deceased was engaged at the time of the-accident was neither state nor interstate commerce. In support of this contention defendant’s counsel cites Howard, admx., v. Ill. Cent. R. R. Co. et al., and Brooks, Admx., v. Southern Pacific Co., 207 U. S. 463. The question involved there related to what is known as the Federal Employer’s Liability Act, and appellant’s argument is that under the holding of the Supreme Court, if the act is broad enough to furnish a remedy to a servant not injured while actually engaged in interstate commerce, then it was unconstitutional. These contentions have been considered in Southern Railway Co. v. United States, opinion by Mr. Justice Van Devanter, reported in the Supreme Court Eeporter (West Publishing Co.) of December 1, 1911. The case involved provisions of the Federal Appliance Acts under consideration in the case at bar. It was argued that “hauling in interstate commerce, although upon a railroad over which traffic was continually being moved from one State to another, was not within the prohibition of the safety' appliance acts of Congress; and that if it was, those acts should he pronounced invalid as being in excess of the power of Congress under the commerce clause of the constitution.” The real controversy, says the court, was over the true significance of the words “on any railroad engaged,” and the true test of their application “is the use of the vehicle on a railroad which is a highway of interstate commerce, and not its use in moving interstate traffic. ” It is held that the original act as enlarged by the amendatory act “is intended to embrace all locomotives, cars and similar vehicles used on any railroad which is a highway of interstate commerce.” Upon the question of constitutionality also the act is held valid. In Devine v. Ill. Cent. R. R. Co., 156 Ill. App. 369-375, we said that construing the federal appliance act in question in accordance with the construction given it by the federal amendatory act of March 2, 1903, “the phrase therein, ‘any car used in moving interstate traffic’ is to be ‘held to apply to all cars used on any railroad engaged in interstate commerce.*” In U. S. v. St. L. I. M. & S. Ry. Co., 154 Fed. 516-518, it is said that the phrase “used in moving interstate traffic” includes “a car that has been used for such purpose, stands ready and is intended to be used for such purpose whenever needed.” In the case at bar it is conceded that one of the two cars between which the deceased was caught and injured — the so-called Pennsylvania oar- — was used in interstate commerce and was partly loaded apparently with the intention of being continued in such use. It was moreover one of many cars used in interstate commerce, handled by defendant in like manner.

The State Act provides that ‘ ‘ The provisions and requirements of this act * * * shall be held to apply to all trains, locomotives, tenders, cars and similar vehicles used on any railroad engaged in moving traffic between points in the State of Illinois.” The same act provides that it shall “be held to apply to common carriers engaged in moving traffic by railroad between points in this State.”

In Luken v. L. S. & M. S. Ry. Co., 248 Ill. 877-383, it is held that in construing a Federal statute the Illinois court is bound by the construction placed upon the act by Federal courts; and that the great weight of authority in the Federal courts holds it to be “the absolute duty of common carriers not to haul cars which are not equipped with safety appliances that will operate for the purpose for which they are required to be provided, and relief from the liability provided for non-compliance with the act cannot be obtained by showing reasonable care-and want of intentional violation of the statute.” The court proceeds (Idem, p. 383) to give “the State statute the same construction that the Federal courts have given the Federal statute, holding that the duty imposed upon the carrier to equip and maintain safety appliances in such condition of repair that they will operate in the manner and for the purpose intended is absolute, and the carrier cannot be heard to say in defense of an action brought by one injured in consequence of its failure to perform its duty, that the plaintiff is bound to prove that the carrier did not exercise -reasonable care to maintain the safety appliances in good condition and repair.” In that case there were -two counts in the declaration, one based upon the State statute and the second upon the Federal statute, in like manner as in the case at bar. The defendant pleaded the general issue as in this case, and it is held to be error for the trial court to require “plaintiff to elect under which count the case should be submitted to the jury;” that “it should have been submitted under both counts.” The same case disposes of the question raised by appellant as to assumed risk and contributory negligence. The court (p. 388) after finding that “the Federal statute has been construed as abolishing the doctrine of assumed risk in all cases to which the statute is applicable” (citing cases, among others Schlemmer v. Railway Co., 205 U. S. 1, where the court said: “We are clearly of opinion that Schlemmer’s rights were in no way impaired by his getting between the Tails and attempting to couple the cars. So far he was saved by the provision that he did not assume the risk”), proceeds to hold that “Under the Illinois statute plaintiff cannot be held to have assumed the risk of injury by going between the cars in the performance of his duties, and it does not appear that he was negligent in any other respect.”

The case, it will be seen, disposes of a number of appellant’s contentions in the case at bar. It holds, first, that the duty of the carrier is absolute under both Federal and State, statutes to equip and maintain safety appliances as those statutes require, without question as to reasonable care or absence of intentional violation of the acts. Second, that it was not error to submit the cause to the jury under separate counts on each statute, the Federal and the State acts, but that it would have been error to require plaintiff to elect under which counts to submit it. Third, that the deceased by going between the oars did not assume the risk under either statute, and we are of opinion that in this case as in that, it does not appear that he was negligent in any other respect. Fourth, that although one of the cars between which in the case at bar the injury was inflicted, was empty, as in that case, it was “being hauled from one point in Illinois to another in the same State,” and “the law applies as well to empty cars as to loaded cars,” that “the character of the traffic the car was being used for at the time of the injury is to be determined from the proof as to the points between which the car was being moved at the time,” whether the road “was an interstate road and whether the car was sometimes used in interstate traffic or not.” Fifth, that the acts in question are to be liberally construed, though penal, and “are not to .be construed so strictly as to defeat the obvious intention of the legislature,” since “the design to give relief was more dominant than to inflict punishment.” Johnson v. So. Pacific, 196 U. S. 1. In Schlemmer v. Ry. Co., 205 U. S. 1-10, it is said: “The words ‘used in moving interstate traffic’ should not be taken in a narrow sense.” In the Luken case, supra, (p. 382-3) the Supreme Court of this State adopts the construction of the Federal courts and gives the State statute the same construction.

What has been said substantially disposes, we think, of the defendant’s contention above set forth as to proximate cause of the accident. This is to the effect that it was the acuteness of the curve in the defendant’s track and not the improper condition of the coupler as alleged in the declaration, that the accident was not the result of negligence on the part of deceased and was a risk assumed by him. There is evidence tending to show that one of the links of the lifting pin on the coupler of the Pennsylvania car was out of order. In Devine v. Ill. Cent. R. Co., supra, we said, “what is proximate cause is ordinarily a question of fact to be determined by a jury.” In I. C. R. R. v. Siler, 229 Ill. 390-392, it was said, “it can only arise as a question of law or pleading when the facts are not only undisputed, but are also such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them.” The declaration charges the hauling and using a car with an automatic coupler so defective, broken and inoperative that it could not be coupled without the necessity of the switchman going between the ends of the cars to couple them, and that as a direct result and in consequence of the kind and construction of the coupler deceased was required to go between the ends of the cars to open the knuckles. The argument of defendant’s counsel is that neither the defective condition nor the kind and construction of the coupler had anything to do with the accident, that “there was no automatic coupler known that would couple automatically-by impact on so sharp a curve.” The deceased however was not responsible for the curve, nor for the use of such ear thereon nor for the coupler. If by reason of the curve or any other cause the couplers would not couple on that track, and it became necessary for the deceased to go between the cars, then the statutes in question were violated. As held in the Luken case, supra, the duty of the carrier is absolute.

Appellant requested the court to give seventy instructions. Of these some were given, others modified and the majority refused. The three instructions requested by appellee’s counsel were given. We have examined the instructions and find no material error in the action of the trial court thereon. What we have said above sufficiently' states reasons which justify the court’s action in refusing many of them. In passing upon many instructions prepared by counsel, which oftentimes contain repetitions and are ingeniously framed, it would be strange if trial courts did not at times make technical errors which afford counsel opportunities for criticism. But where, as in this case, it is apparent the jury have not been misled and the result is substantially correct, such technicalities do not afford sufficient ground for reversal of a judgment.

The jury assessed the damages at $10,000. The trial Court required a remittitur of $2,000 and entered judgment for $8,000. It is claimed the amount of the judgment is excessive. The deceased was forty-eight years of age. Many cases may be found where juries in such cases have awarded larg’er as well as smaller sums. In the case at bar no sufficient reason appears why we should undertake to reduce the amount of the judgment which has met the approval of the trial court, and is less than the jury awarded.

Finding no material error in the record, the judgment of the Superior Court will be affirmed.

Affirmed.

(Note by the Court.) This case was decided by the full court as it then existed before Mr. Justice McSurely succeeded Mr. Justice Kavanagh.


text:
    Page V. Lyon, Trustee in Bankruptcy, Appellant, v. Poney Moore et al., Appellees.
    Gen. No. 16,110.
    1. Appeals and errors — when findings of chancellor not disturbed. Where the testimony is conflicting, a court of review will not disturb the finding of the chancellor upon a question of fact unless it is clearly apparent the chancellor has committed error.
    2. Appeals and errors — when decree presumed supported by the evidence. Notwithstanding a certificate of evidence may he certified as containing all the evidence if upon its face documentary evidence which may he material appears to' have been omitted therefrom the decree rendered will he presumed to have been supported by the evidence actually before the chancellor.
    3. Lis pendens — when chancery action not. Until summons is served a chancery action is not Us pendens.

    Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed March 14, 1912.
    A. D. Gash, for appellant.
    Wheeler, Silber & Isaacs, for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an appeal from a decree entered by the Superior Court upon a bill filed by appellant as trustee in bankruptcy. The bill alleges inter alia that the bankrupt, Poney Moore, did not schedule all his property; that he was owner of a ten years’ lease, having still five years to run; that the rental under the lease to bim was $100 per month, and that he had assigned the lease to the defendant Marshall, who agreed to pay bim $150 per month therefor, leaving him a profit of $50 a month for the unexpired term of five years. It is further averred that less than four months before he filed his petition in bankruptcy he fraudulently made a pretended surrender of said lease to Ms landlord, Mrs. Fowler, who is made defendant herein; that she thereafter made a pretended lease of the premises for' the unexpired term to one Blunk without consideration, and that this second lease was made with intent to defraud the creditors of the bankrupt and is held by Blunk in trust for the bankrupt. It is averred also that the bankrupt was owner of a theater, saloon and pool and billiard tables, which Blunk obtained possession of without consideration.

The prayer of the bill is to the effect that a decree be entered turning over the personal property to complainant, reinstating in full force and effect the original lease from Mrs. Fowler to the bankrupt, and directing defendant Joseph Marshall to pay rent at the rate of $150 per month from and including December, 1907, that defendant Fowler accept $100 per month in payment of the rent due her and that she and Blunk be restrained from asserting any right under the second lease to Blunk, that complainant be substituted to the right of the bankrupt in and to the original lease and sublease and for the appointment of a receiver.

A hearing was had and a decree entered, which finds that defendant, Mrs. Fowler, paid nothing for the surrender by the bankrupt to her of the original lease from her to the bankrupt, and received nothing from Blunk for the lease to him; that Blunk assigned the lease made by Mrs. Fowler to him to one Williams for a valuable consideration and Williams sold it to one Blackburn for a like consideration; that the transfers from Blunk to Williams and Williams to Blackburn were in good faith and without fraudulent intent; that by the surrender of the lease to her by the bankrupt, defendant Fowler became immediate lessor to Marshall, whom Fowler directed to pay the rent to Blunk; that Marshall paid Blunk $150 per month from June, 1907, to January, 1908, and that Blunk paid $100 a month to Mrs. Fowler during that period; that the surrender of the lease by the bankrupt to Mrs. Fowler and the lease from her to Blunk were parts of a scheme by the bankrupt to defraud complainant and creditors; but that Mrs. Fowler had no knowledge of such intent, and accepted the bankrupt’s surrender and made the lease to Blunk in good faith; that the purchase by Williams and Blackburn of the lease to Blunk was also without knowledge of and intent to defraud the creditors of the bankrupt; that Blunk received $400 profit on said lease in trust for the bankrupt. The decree directs Blunk to pay to the complainant $900, and finds that the theater and saloon fixtures, billiard and pool tables were transferred fraudulently to Blunk without consideration, and were by him transferred back to the bankrupt, by whom they were sold for $350. The bankrupt is by the decree directed to pay this money to complainant within three days and to turn over to complainant the theater and saloon.

Complainant appeals from this decree and assigns as error the admission of improper evidence, the rejection of proper evidence, the decree against Blunk for only $900, and in favor of Fowler and the Marshalls.

Appellant urges first that the evidence does not bear out the decree in finding that Williams bought the lease from Blunk for a valuable consideration. There is however evidence tending to show that Williams did not pay Blunk any money at the time of the demise, but that the witness does not know what Williams did pay, except that Blunk was indebted to Williams and that such indebtedness was a part of the consideration. It is urged secondly that the assignment of the lease to Williams is dated January 8, 1908, and the bill was filed December 7th preceding. It is claimed therefore that the assignment from Blunk to Williams was made Us pendens and with full knowledge to Williams that Blunk’s title under the lease was disputed. Third, it is claimed also that defendant Frank Marshall was the real purchaser from Williams, buying in the name of Blackburn and with full notice of tbe fraud.charged against Bliink.

In Amos v. Am. Trust & Savings Bank, 221 Ill. 100-105, it is said: ‘ ‘ The rule in this State is that where the testimony is conflicting as it is in this case, a court of review will not disturb the finding of the chancellor upon a question of fact unless it is clearly apparent the chancellor has committed error.” There is evidence here clearly tending to support the findings.

In Heyman v. Heyman, 210 Ill. 524-529, it is said: ‘ ‘ The evidence in this case was all heard in open court and * * # was conflicting in character. The chancellor saw the witnesses and heard them testify and was in a much better position to judge of their credibility than we are from a perusal of their testimony as it appears in the record. Under such circumstances a court of review will not disturb the findings of fact of the chancellor unless it is apparent that error has been committed. (Dowie v. Driscol, 203 Ill. 480; Hardy v. Dyas, 203 id. 211.) In Biggerstaff v. Biggerstaff, 180 Ill. 407, we said, (p. 411): ‘The law is well established in this State that where a cause is heard by the chancellor and the evidence is all, or partly, oral it must appear that there is clear or palpable error before a reversal will be had.’ ” -The rule is substantially the same in some cases without reference to whether there is or is not direct conflict in the evidence. In Powell v. Huey, 241 Ill. 132-136, it is said: “The evidence was heard in open court, and under, such circumstances the findings of fact by the chancellor will not be disturbed unless it is clearly apparent that they are wrong.” It does not so appear in the case at bar.

As to the contention that Blunk’s assignment to Williams of the lease in question was made after the filing of the bill of complaint and that it was therefore made lis pendens, it appears that no summons or subpoena had been served, and as said in Hallorn v. Trum, 125 Ill. 247-253, “the commencement of a suit by filing a bill does not constitute lis pendens until summons or subpoena has been served.” To the same effect is Grant v. Bennett, 96 Ill. 513-521.

As to the contention that Prank Marshall was the real purchaser in the name of Blackburn from Williams, and with full notice of the fraud charged against Blunk, the chancellor found otherwise and we discover no reason to interfere with such findings.

Upon the record, which we have examined with care, we are of opinion the chancellor’s conclusions are in accordance with and warranted by the evidence and the lack of evidence to justify appellant’s contentions.

Our attention is called to the statement in the certificate of evidence to the effect that it contains all the evidence. Apparently however a number of documents introduced in evidence and referred to therein are not to be found in the record. How material these papers are we cannot in their absence determine. In this condition of the record we cannot say the decree is not supported by the evidence and must presume that it is so supported. Dahl v. Macdonald Engineering Co., 141 Ill. App. 187, 190; Grand Lodge I. O. of F. S. of I. v. Ohnstein, 110 Ill. App. 312-322, and cases there cited.

The decree of the Superior Court will be affirmed.

Affirmed.


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    Edward J. Rock, Appellee, v. J. E. Tilt Shoe Company, Appellant.
    Gen. No. 16,125.
    1. Master and servant — duty of former to warn. If the failure of the master to warn and instruct his servant of a danger, which was or should have been obvious to such master and not to the servant results in injury to the servant, the master is liable.
    2. Negligence — when burden upon master to show absence of. Without invoking the doctrine res ipsa loquitur, yet if the accident be one which in the ordinary course of events would not have happened without negligence the burden is upon the master to show his lack of negligence.
    3. Verdicts — when not excessive. Held, in a personal injury action, that a judgment for $10,000 was not excessive where it appeared that the plaintiff sustained a swelling of the thyroid gland which had not entirely disappeared at the time of the trial, almost 3 years after the accident; that there was a fracture of the right femur, that there is a shortening of the right leg about an inch, and a limitation of its motion, that this has tended to cause a curvature of the spine, that these conditions are permanent, and that other results ensued in consequence of the accident.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed March 14, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by tbe Court. This is an action by appellee to recover damages for personal injuries, in which the court entered judgment in his favor for $10,000.
    The plaintiff’s version of the facts relating to the injury is in substance that in June, 1906, he was in the defendant’s employ as an errand boy at the defendant’s shoe factory in Chicago. At the suggestion of an employe of the defendant whom the plaintiff says was the superintendent, the plaintiff, being then about seventeen years and eight months old, undertook to run one of the two elevators then used in defendant’s building. . He says tbe superintendent showed him how to operate the elevator and “how to pull the racks in” to it; that he was not to push the racks “on account of the hole where the bottom door went in the floor;” that he was told no one else had anything to do with the elevator, that he should leave it in the basement every night, because he could not get into it at the other floors and would have to go to the basement for it every morning; that in addition to running the elevator, it would be his duty to pull racks of shoes onto the elevator and take them from floor to floor. He had been doing this work in connection with running the elevator about three days when the accident occurred by which the injuries complained of were inflicted. This was the third day of his work with the elevator— June 13, 1906. He says he was on the first floor and was given shoes to take to the third floor; that he took the racks containing the shoes to that floor, where the heels were burnished; that it was then his duty to take them to the elevator; that he had “to pull the rack out,” and that when he “got the rack straightened out” he turned around to see if he “was going in the elevator straight, and the elevator was there, and I pulled the rack back, and when I got near the hole I started to back the racks up and stepped back where I thought the elevator was and I fell in the basement. I did not hear nor do I know anything about the movement or shifting of the elevator before I stepped into this open shaft.” He further says that while falling “I thought I saw somebody above me,” that “it looked like somebody was up there; I could not say who it was. It- seemed to me to be at the fourth floor. I could not tell just where it was when I was going down.” He says that when on the third floor-before he fell he looked around to see if he could get into the elevator properly, he was about three steps from the elevator shaft, and that the elevator was in its proper place at that time; that after that it could not have been more than a few seconds before he stepped backwards into the shaft, and that during those few seconds he was pulling the rack, having hold of its “bottom and top shelf” pulling backwards to the elevator; that the rack was loaded and was heavy. He states that the doors that shut up and down and came together were a part of the shaft surrounding the elevator; that there were two iron doors, one-half going up and the other half down, and fastened by an iron catch or lock; that they “had counterweights on them and worked easy; ’ ’ that they were not attached to the elevator at all; that he did not at that time know how to get into the elevator shaft from the outside, except in the basement, and that it was the defendant’s superintendent “who showed me how to pull the boxes in the way I was pulling them at the time.” It appears from the witness’ statement that Corlette, the alleged superintendent, stayed with him on the elevator a good part of the forenoon and “showed me all about which cable to pull to stop the elevator and which to start it, all about all the cables and how to work the doors;” that “he took me from floor to floor and showed me this latch;” that Corlette and he “made about twenty trips up and down the elevator shaft that forenoon,” “doing actual work that is, putting these racks on the elevator and putting them off on the other floors, and he helped me.” The racks themselves were “a very light affair;” were about four or five feet high, made out of small pieces of wood and “run on small rollers.” The elevator platform was about eight feet long and six feet deep and there was a railing “made of something like gas pipe” around three sides of the elevator. It appears that in some way the elevator had ascended at the time the plaintiff backed into the shaft, which the ascent of the elevator had left exposed and open. There is testimony tending to show that the president, the said superintendent and other officers of the defendant had quite frequently opened the elevator doors from outside the elevator by inserting the blade of a penknife and pushing the catch back; that, minor employes did the same thing on different floors, and that the elevator could be raised or lowered from any floor by one who had opened a door giving access to the elevator shaft.
    There is evidence to the effect that the fall caused a swelling of the thyroid gland in the plaintiff’s neck, which had not entirely disappeared at the time of the trial about June 14, 1909, almost exactly three years from the time of the accident; that there was a fracture of the right femur; that the “neck of the bone was fractured; ’ ’ that there is a shortening of the right leg about an inch, and a limitation of its motions; that this has tended to cause a curvature of the spine; that these conditions are permanent; that at the time of the accident there was produced an effusion of some fluid, probably blood, in the abdomen, which afterward disappeared and that plaintiff was so nearly dead at the time it was impossible to treat him as would have been desirable had his condition then permitted. He was taken to a hospital where he remained two weeks and thence to his home, where he was confined to bed about three or four weeks, and it was some time in October following before he laid aside “both crutches and steel brace” and began to try to walk. “It was about two weeks after that before I could say I could walk around.” He states that when thereafter he went back to work for the defendant he undertook to run a punching machine with his right leg; that the leg hurt so much that after awhile he worked only half a day; that “the leg bothered me, it would get tired out at the hip.”
    Frank M. Cox and E. J. Fellingham, for appellant.
    James L. Bynum and William J. Coleman, for appellee ; Guerin, Gallagher & Barrett, of counsel.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

There are fifteen heads setting ont counsel’s contentions in behalf of the defendant company. The first of these is that the evidence with all it legitimately tends to prove is not sufficient to sustain the verdict in that it does not show that the proximate cause of the injury was negligence of the defendant. Others are that the evidence of appellee to the effect that as he fell down the shaft he was conscious and saw above him a face looking down the shaft is improbable and unbelievable; that it was incumbent upon appellee to prove that the elevator shaft and equipment were defective and that defendant had notice thereof or should have had, and plaintiff had not equal means of such knowledge, and that such defects were the proximate cause of the injury; that appellee assumed the risk arising from any dangers there were in the manner of doing the work, because he knew all the conditions or could have known them by the use of ordinary care; that where a servant is injured by another servant of the master he must prove by a preponderance of evidence that the negligent servant was not his fellow servant and that appellee in backing into the elevator shaft without ascertaining before he stepped that the elevator was not there was guilty of contributory negligence as a matter of law. There' are other points stated, but they refer mainly to well understood propositions of law as to which there is no dispute, and the application of which in the case at bar is at least remote.

The first contention above stated, that the evidence fails to show that negligence of the defendant was the proximate cause of the injury, raises, we think, the controlling question in the case.

It is argued that the evidence does not prove any negligence on defendant’s part, that plaintiff did not prove “that the elevator was moved by anybody who had opened the doors leading to the elevator shaft from the outside.” No evidence was offered in defendant’s behalf. Plaintiff’s evidence tends to show that it was a cnstom with certain of appellant’s officers and employes to open doors to the elevator shaft from the outside by using the blade of a knife and raising the catch at such times as suited their convenience. Why this was done does not definitely appear, but the inference is warranted that it may have been to enable such person to use the elevator when the operator was not present or for some reason was out of the elevator at the time. By opening a door into the shaft on any floor the cable by which the elevator was controlled was brought within reach of one standing at the open door of the shaft on that floor and the elevator could then be raised or lowered by such person at will. There is testimony tending to show that plaintiff was informed that no one could open these doors on the outside.and was told to do his work in the manner in which he was engaged in doing it at the time of the injury. He had no experience in operating the elevator, except that of the three days which had elapsed in whole or part after he was told how to do the work and was set to doing it. It is true the evidence does not show what, if any, particular person set the elevator in motion at the time. There is no testimony and no evidence tending to show that it ever moved automatically. So far as appears it probably was set in motion by the cable used for such purpose. If so, it was probably caused to ascend by human agency. The method plaintiff was instructed to use in loading the racks on the elevator was made extremely dangerous by the fact that the elevator doors could be and were, not infrequently, opened from the ontside as the evidence tends to show. Instead of being warned of the danger that persons thus opening the doors might raise or lower the elevator while he was out of it to load or unload racks, the evidence tends to show plaintiff was not only not warned of the danger but was led by his instructor — inadvertently doubtless', but actually — to suppose it did not exist. Tbe jury were we think warranted from the evidence in finding that the failure to warn and instruct the plaintiff of such danger, obvious as it was or should have been to the employer, and the absence of precautions to prevent such injury, were negligence and proximate causes of the injury.

The burden to show the accident was not the result of such negligence was upon the defendant. We concur in what is said by Mr. Justice Brown in Illinois Steel Co. v. Swiercz, 135 Ill. App. 141-150: “We think that the case comes under the class of cases spoken of and cited in Glue Co. v. Wietzychowski, 125 Ill. App. 277, where without invoking the principle res ipsa loquitur in favor of an employe it can nevertheless be said that the mere fact of the occurrence of the accident indicates negligence on the part of some one.' The accident-was one which in the ordinary course of events without some absence of due care could not happen, and as it did happen the burden was put on the party responsible for such care to show that it was not the result of his negligence.” That a door into the elevator shaft was opened at the time of the accident by some one on a floor above that at which plaintiff had left the elevator a few moments before, there is some evidence tending to show. Plaintiff testifies that he thought he saw some one looking down the shaft while he was falling. Defendant’s counsel endeavors to minimize the force of this statement, declaring it incredible and asserting it to have been impossible that plaintiff could have seen while falling what he says he thought he saw. We-know of no just ground upon which we are at liberty to ignore that testimony. Its value as evidence was a question for the jury. The identity of such person, if plaintiff did in fact see him, as he says he thinks he did, plaintiff could not be expected nor required to prove or ascertain as a condition precedent to admitting the evidence. In all probability it would have been impossible for hfm to do either. We are unable to concur in appellant’s contention that the plaintiff was "required to show what caused the elevator to move. It is sufficient that it did move without fault on the part of the plaintiff so far as appears, and under conditions which justify the conclusion that the injury was the result of defendant’s negligence.1

Nor can we agree with counsel’s contention that plaintiff assumed the risk of such an accident, or was guilty of contributory negligence under the evidence. It is clearly not a case for application of the doctrine of fellow servant. If it was by reason of defendant’s negligence that the doors of the shaft were opened and the elevator moved, it is immaterial who the person was who moved it. There is nothing in the evidence tending to show that it was done by one who was a fellow servant under the rule, but if there had been it would make no difference in a case where, as here, the evidence tends to show that the proximate cause of the injury was negligence on the part of the defendant. If “the injury would not have happened had the master observed due care for the safety of the injured servant, the master is liable. ’ ’ Armour v. Golkowska, 202 Ill. 144-147. Whether plaintiff was guilty of contributory negligence was a question of fact, as to which the jury did not agree with defendant’s contention. It must suffice to say that we find no material error in the instructions.

It is said the judgment of $10,000 is excessive. We are unable to agree with this contention. The verdict of the jury awarded a considerably larger sum, which was reduced by remittitur. The judgment in view of the circumstances, the nature and the extent of the plaintiff’s injuries, is not for an amount so large as to warrant our interference.

Finding no material error in the record the judgment of the Superior Court will be affirmed.

Affirmed.


text:
    Ida Finkelstein, Appellee, v. City of Chicago, Appellant.
    Gen. No. 16,138.

      Verdicts — province of court in reviewing sise. It is not the province of the Appellate Court to assess the amount of the plaintiff’s' damages, hut it is within the province of that court to determine where it appears clearly from the evidence that the amount of the judgment is excessive, what, if any part thereof, it would he proper for such court under the evidence to affirm in case the plaintiff chooses to remit the excess.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed on remittitur.

    Opinion filed March 14, 1912.

      Remittitur filed and judgment affirmed March 21, 1912.
    Edward J. Brundage and John R. Cayerly, for appellant; George L. Reker, of counsel.
    Brandt & Hoffmann, for appellee; Leo Y. Boeder, of counsel.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

The plaintiff — appellee herein — recovered a judgment against the city of Chicago for $7,000, from which judgment this appeal is prosecuted.

Plaintiff’s testimony is to the effect that April 2, 1902, she was walking west on the south side of Maxwell street, Chicago, carrying her child in her arms. She says she was walking “slowly and carefully;” that in front of 264 Maxwell street “the hoard gave way and my foot went in and I fell right down and the child flew out of my hands. I fell on the right side.” She says she was “hollering and screaming from pain;” that she was picked up by two gentlemen who sat her down in front of 264 Maxwell street; that she “didn’t know very much for me. I was half fainting’.” She was pnt in a patrol wag’on by two policemen and carried np stairs to her flat, pnt to bed and a doctor sent for. She was, she says, “very heavy and stout” and weighed then it is said over 180 pounds, but just before the trial her weight apparently was 118 pounds. One of the doctors who attended her at that time testifies that he found “quite a bit of swelling and contusion and bruising upon the right side, and it was a question in pur minds at that time I recollect, whether there was a fracture of the outer portion of the bone or not.” He states that he and another doctor, who was present with him at this first examination, thought the malleolus — a bone on the external side of the tibia —was fractured. The two doctors put plaintiff’s leg in splints. There is testimony in plaintiff’s behalf, given by a doctor who examined her leg in March, 1906, that he “found the woman had a displacement and dislocation of the right ankle;” that the joint is opened up so that there is a “triangular abnormal triangle space in the angle joint;” that “the external malleolus and parts around the external malleolus are enlarged and the external malleolus overrides the outside of the foot so that the body bearing weight instead of being near the center of the foot, where it belongs, is at the outer margin of the foot.” There is further testimony of plaintiff to the effect that she wore a plaster cast about eight weeks on the injured leg, that she suffered much pain, that the ankle “has been swollen from that time to this, only sometimes less and sometimes more,” that “it swells most in the evening,” that “I cannot stand much on it. When I stand' on it, it swells. It swells more when I walk;” that her hand and arm hurt her at the time of the injury “very bad;” that the “hand has been getting worse every day; that sometimes it is less and sometimes more;” that “sometimes I tremble a bit;” that ‘ ‘ I can hardly do anything with my hand; ’ ’ that she was “two months in the family way at the time of thé injury;” that the child “was born in eight months and four days;” that about two years after the birth of that child she gave birth to another; that she had a miscarriage about a year and a half after that; that she had two children before the injury, two since the injury, one miscarriage and one still born.

There is conflict in the evidence as to the nature, extent and existence of some of the ills from which plaintiff claims to be suffering as the result of the injury. This conflict extends to the testimony of medical witnesses. One of the doctors who had known the plaintiff a number of years and was apparently her family physician and was called in and treated the plaintiff in connection with another doctor immediately after the accident, says that while he diagnosed the case to be a swelling of the ankle, and that the two doctors then present “thought” there might be a “tipping of the malleolus,” a “tipping of, a crack of the top of the malleolus,” that subsequently “we concluded there was no fracture, no complete fracture, simply a sprained ankle. ’ ’ The same doctor who treated her at least eight weeks and until, as he says, he “considered her recovered” and the injury cured, testifies that he never noticed any shaking of the plaintiff’s hand then and never discovered any lack of power to use her hand and no symptoms of the “paralysis agitans” or shaking palsy which plaintiff claims to be suffering from as a result of the injury in question. Her own medical witness testifies that “Tic” or St. Vitus Dance can produce the same symptoms, and that plaintiff may have “Tic,” which may be produced by traumatic rheumatism. There is' testimony tending to show that a physician who attended plaintiff when she was confined subsequent to the accident, and on other occasions since then, heard nothing about the alleged trouble with the plaintiff’s right hand and that nothing was then “said about her arm or her ankle,” although he treated her afterward for diabetes, which disease may-account for plaintiff’s loss of weight and the miscarriage. It does not appear that the diabetes was in any way the result of the accident. There is evidence also tending to show that since the accident she went about her affairs, showing no evidence of trouble with her hand nor lameness in her walk.

It is contended by counsel for appellant that the verdict is against the evidence, that the court erred in not granting a new trial upon affidavits of newly discovered evidence, that the conduct of counsel for appellee was prejudicial to appellant and that the damages awarded by the judgment are excessive.

It is not disputed but that the appellee received some injury from the fall on the alleged defective sidewalk. For .this she may be entitled to recover such an amount as would afford adequate compensation. But we believe the judgment is so excessive under the evidence that we should not be justified in affirming it for any such amount. We agree with appellee’s counsel in part of the statement that “the sole question before this court is whether the judgment for $7,000 is so grossly excessive”, not “as to strike all mankind at first blush as outrageous,” as appellant’s counsel states it, but so excessive as to require either a reversal or a reduction of the judgment. We have considered the evidence with care. The case has been tried before. There is, as we have said, no question that plaintiff is entitled to recover some damages. It is not the province of this court to assess the amount of plaintiff’s damages, but it is within our province to determine where, as here, it appears clearly from the evidence that the amount of the judgment is excessive, what if any part thereof it would be proper for us under the evidence to affirm in case the plaintiff chooses to remit the excess.

If therefore the plaintiff chooses to remit the difference within ten days, the judgment will he affirmed for twenty-five hundred dollars. Otherwise the judgment will he reversed and the cause remanded.

Affirmed on remittitur.

Remittitur filed and judgment affirmed March 21, 1912.