author: . Mr. Justice Thompson

text:
    Lake Forest Water Company, Appellee, v. City of Lake Forest, Appellant.
    Gen. No. 5209.
    1. Appeals and errors—when finding by court not given special weight. If the evidence is presented to the trial court in writing and its finding is predicated thereon the Appellate Court has the same opportunities that the trial court had to determine the questions of fact and will do so from the record according to what appears as just and right.
    2. Appeals and errors—when admission of improper evidence will not reverse decree in chancery. If there is proper evidence in the record to sustain a decree, the admission of improper evidence in chancery is not reversible error because it is presumed that the chancellor only considered proper evidence.
    3. Ordinances'—what competent to determine reasonableness in fixing water rates. Evidence showing the financial effect of such ordinance during the period of the pendency of litigation to determine such reasonableness, is competent.
    4. Ordinances—when estoppel as defense to attach upon, cannot be urged. Acceptance of an ordinance fixing water rates as a defense, or estoppel to attack such ordinance as a defense, cannot be urged in the absence of a pleading setting up such defenses.
    5. Ordinances—when, fixing water rates, will not be disturbed. The presumption is that water rates fixed by an ordinance are fair and reasonable and the burden is upon the company whose rates are fixed to overcome this presumption and the courts will not interfere and set aside the ordinance unless the rates fixed are plainly unreasonable.
    6. Evidence—effect of withholding. The withholding or failing to produce evidence which, under the circumstances, the party would be expected to produce, and which was in its power to produce, gives rise to a presumption that the evidence if produced Would have shown that the contention of such party was untenable.

      BUI in equity. Appeal from the Circuit Court of Lake county; the Hon. Chakles H. Dokreley, Judge, presiding. Heard in this court at the April term, 1909.
    Reversed and remanded with directions.
    Opinion filed March 11, 1910.
    Rehearing denied April 13, 1910.
    Statement by the Court. The city of Lake Forest is a municipal corporation. The Lake Forest Water Company is a gwsi-public corporation, with a capital stock of $50,000, organized under the laws of Illinois for the purpose of constructing and operating a system of waterworks in the city of Lake Forest and supplying the city and its inhabitants with water for public and domestic uses. On December 9, 1890, the city of Lake Forest passed an ordinance, conferring upon the Lake Forest Water Company, which will hereafter be termed the water company, the privilege of furnishing water within the city limits for a period of thirty years, and providing that extensions shall be made by the company from time to time when required by the city and that the price to be paid by the city for water for public uses should be determined by the- city council, and if the amount paid by the city is not satisfactory that the company shall have the right to refuse to furnish water. The ordinance also provided that the company should furnish thirty hydrants to be located on the first three miles of mains, and if the city required more hydrants on the first three miles the water company should furnish and place them at the expense of the city and the city should pay the necessary expenses of keeping them in order; that hydrants furnished and located thereafter should be connected with the mains by the company but the cost thereof should be paid by the city, and that the company should make extensions of mains whenever called upon by the city, but there should be at least one water consumer for each 500 feet of extension; and the city agreed to pay for public fire service upon such extension at the rate agreed upon hereafter for each mile of such extension for the unexpired term of the franchise.

      The ordinance gave the city the right to purchase the system of waterworks at the expiration of fifteen years after the completion of the works and at the expiration of each succeeding period of five years thereafter, and provided a method of ascertaining the value of the plant at the time of the purchase. The ordinance did not fix the rate to be paid by private consumers of water. It was accepted by the water company, and a system of waterworks was built by the company. The system as originally constructed had 33,130 feet of mains, with thirty-five hydrants, and was completed in December, 1891. When the system first began operating, the authorities of the company agreed with the city upon an annual payment by the city for water rentals of $1,200 and there was harmony between the city council and the company. The amount paid for hydrant rental was increased by agreement in 1899 to $2,400. In 1900 when there was 52,700 feet of mains, the company proposed to the city that if it would pay $4,000 and an additional $40 for each 500 feet of extension of mains the company would reduce its maximum rate to private consumers to twenty cents per 1,000 gallons with a minimum charge of $9 per annum. After some negotiation the proposition was accepted, with the change that the miniumm price to be paid bv consumers should be $8 per annum. In 1902, dissatisfaction arose between the city and the water company, because of the fact that the city was requiring extensions of mains into more distant additions to the city where the residents were less wealthy and not as liberal users of water as were those in the territory originally supplied with water.
    In April, 1904, the company raised the rate for private consumers to twenty-five cents per 1,000 gallons. In May, 1904, the city council appointed a committee to investigate the question of rates, and notified the company that the matter had been referred to this committee. The company advised the committee that its general manager would act for the company in conference with the committee. There were many conferences between the committee and the company. The company furnished some information and exhibited some of its books to the committee, which employed experts and continued its investigation until December, 1904. On January 9, 1905, the city council passed an ordinance fixing the rate for private consumers at twenty cents per thousand gallons, payable at such time as the company shall determine with a minimum rate of $4 per year, and fixing the rate to be paid by the city for water for public use at $40 for each 500 feet of mains, payable quarterly, and providing that the rates shall be subject to such change as the city council shall from time to time determine in order to make a just and reasonable charge. Thereupon the water company filed a bill in equity against the city, alleging that the rates prescribed by the ordinance of January, 1905, were unjust, unreasonable and insufficient to give reasonable compensation to its stockholders on their investment, and praying that the rates may be reviewed and determined to be unjust, and that the ordinance may be declared void and the city of Lake Forest be enjoined from enforcing the terms of the ordinance. The defendant answered the bill denying that the rates were unreasonable. A replication was filed and the cause referred to the master to take and report the evidence. The master reported the evidence, and the Circuit Court after hearing the cause on the bill, answer, replication and master’s report of evidence, entered a decree declaring the ordinance of January 9, 1905, illegal, null, void, and in violation of the rights of complainant, and perpetually enjoined the city from attempting to enforce said ordinance. From that decree the city appeals.
    George E. Chipmax, for appellant.
    Cooke, Pope & Pope, for appellee.
   . Mr. Justice Thompson

delivered the opinion of the court.

The water company insists that the finding of the trial court, that the rates fixed by the ordinance were unjust and unreasonable, is a finding of fact that has the weight of a verdict of a jury and should not be reversed except for clear and indubitable error. The trial court did not see the witnesses but heard the case upon the evidence reported in writing by the master. When. the witnesses are examined in open court the trial court has better opportunities of determining the weight to be given to the testimony of the various witnesses than an appellate court, but in cases where the evidence is all presented in writing to the trial court an appellate court has the same opportunities and facilities for coming to a correct conclusion as to the weight and value of the testimony as has the trial court. In such a case there is no* presumption on appeal in favor of the decree of the chancellor ; but this court must determine from the record the questions of fact as shall appeal to it just and right. Baker v. Rockabrand, 118 Ill. 365; McGinnis v. Jacobs, 147 Ill. 30; Kellogg v. Peddicord, 181 Ill. 24; Brixell v. Brixell, 230 Ill. 446.

Appellant has assigned for error the admission of certain testimony heard on the part of appellee. If there is proper evidence in the record to sustain a decree, the admission of improper evidence in chancery is not reversible error because it is presumed that the court only considered proper evidence. There is no error assigned concerning the rejection of proper evidence, -hence it is unnecessary to review the rulings of the trial court upon any question of evidence.

The meritorious question is whether the ordinance is unreasonable and deprives the water company of a reasonable rate upon its investment. The evidence shows that when the plant was originally completed and before extensions were asked for, there were 33,130 feet of mains; the entire plant at that time,cost about $65,000 of which $49,750 was paid by the stockholders, and the company borrowed $15,000 to complete the construction. The city then had about 1,200 inhabitants, mostly people of wealth with extensive grounds about their residences. In fourteen years the city has increased until it has over 3,000 inhabitants, and the water mains of the company have been extended until it has 74,319 feet of mains. The books of the water company show that there has been expended on construction $102,808.30; to this sum should be added about $4,000 which went into construction but in the books is concealed in the operating expenses by reason of the construction having been put in by consumers of water, whose water bills were rebated until the cost of construction was repaid. The company has from its profits on an investment of $49,750 in less than fifteen years, from its income paid four dividends of five per cent or $9,950; paid its debt of $15,000 made in the original construction, increased its mains to 74,319 feet at an expense of about $44,000 and had over $4,000 in the treasury on January 9,1905. It has a plant which it values at about $130,000 or at upwards of twenty-five per cent above all money invested in it without any allowance for depreciation.

Experts were called on both sides to testify to the value of the plant. John W. Alvord and Benezette Williams testified on behalf of appellee, and John Erickson and Thomas E. Johnson for appellant. These experts are all civil engineers. Alvord is engaged in making reports on water plants for bankers and investors, and Williams was at one time employed by the city of Chicago but now seems to be in the employ of investors. Erickson is in the employ of the city of Chicago, and Johnson for some time was in the employ of the Sanitary District of Chicago but is now engaged in the construction of water supply plants. In their valuation the experts substantially agree on the value of the tangible property, but on speculative matters are very wide apart. Alvord’s estimates may be measured by the fact that he found from the books of the company that the cost of administration was too small and in making his estimates he allowed a larger amount for operating and administration expenses than the books showed they actually were. He estimated that it would take $111,216 to reproduce the property, and deducted $16,978 for depreciation, leaving the present value $94,238. Erickson’s estimate is that it would take $110,117.09 to reproduce the property; he deducts $19,521.58 for depreciation, making the value of the tangible property $90,596.41. To arrive at the value of the plant all the experts add an element that they term “going value,” corresponding somewhat to good will, but it is rather the loss of interest while the plant is being constructed and the failure to use the property by residents along the line of mains until they have been educated or become attached to the use of the public utility. Alvord estimates the going value at $17,800 making the total value $121,624. Williams estimates it at $26,159 making the total value $129,678; Erickson estimates it at $10,376, making the total value $100,972.41, and Johnson estimates it at $2,638.39 making the total value $90,866.17. Some of the experts also add a large percentage for what they call speculative profit.

Alvord estimates that to pay operating expenses, interest on the investment and produce a proper sinking fund to make good the depreciation and loss at the termination of the franchise, the plant should produce a yearly income of $22,142. Williams estimates that the plant should produce an income of $22,900 annually, while Erickson’s estimate for the same purposes amounts to $14,881.76 and Johnson’s amounts to $13,915.21. All these experts estimate interest at six per cent. There is also a difference in the estimates of value placed upon the property by the company itself at different times. We have stated the values fixed by the experts. The manager of the company, the same person who was manager when the council appointed a committee to investigate the question of rates and to whom the company referred that committee, appeared before the board of review and there insisted that its value was much less than the company now insists it should have an income upon.

The ordinance was passed January 9, 1905; the bill was filed in this case August 12, 1905; the cause was referred to the master, February 1,1906, and the master did not make his report of the evidence until June 1, 1908, three years after the ordinance was passed.

It was in the power of the company to have shown exactly what the income and the expenses were during the three years and a half the ordinance was in effect before the evidence was reported to the court, while the company was operating under the ordinance complained of. Such evidence is held to be proper in Knoxville v. Water Co., 212 U. S. 1. The appellee chose rather to rest its case on the theories and speculation of experts when precise proof on the issue involved was within its power to produce. The withholding or failing to produce evidence which, under the circumstances, appellee would be expected to produce, and which was in its power to produce, gives rise to a presumption that the evidence if produced would have shown that the contention of appellee is untenable. Warth v. Loewenstein, 219 Ill. 222; Mantonya v. Reilly, 184 Ill. 183; Hartford Life Ins. Co. v. Sherman, 123 Ill. App. 202.

The books of the company show that during the five years immediately prior to the passage of the ordinance the company had expended $17,826 or an average of $3,575 per year in the extension of mains, and that the income had increased from $9,774 per year to $15,279, or an annual average increase of $1,017. The water supply is taken from Lake Michigan and it does not appear but that the machinery in use is ample for the life of the franchise even if the rate of growth of the city continues as it has in past years. The increase of expenses has not been as great proportionately as the increase of income. The actual income of the company shown by its books for the year ending May 31, 1904, was $15,279.32 and the operating expenses for the same period were $7,497.57, leaving a profit of $7,781.75.

It is contended by appellant that appellee is es-topped to claim that the ordinance is void for the reason that after the passage of the ordinance complained of and the filing of the bill for an injunction, the appellee sued appellant in an action in debt for water rents due from the city under the ordinance. In this suit, appellee claims the ordinance is invalid; in the suit at law begun after the filing of the bill in this suit it relied on the ordinance for a recovery. While the allegations of the bill and the averments in the suit at law are inconsistent, the answer does not plead the suit at law in any way, and there is no cross-bill alleging the acceptance of the ordinance by the beginning of the action of debt. There was no pleading on which to base such a defense (Jenkins v. International Bank, 111 Ill. 462; Hook v. Richeson, 115 Ill. 431; Gorham v. Farson, 119 Ill. 425) and we refrain from expressing any opinion concerning this contention of appellant.

The legislature has conferred upon corporate authorities of cities the power to prescribe by ordinance maximum rates and charges for the supply of water furnished by - an individual or company to cities and their inhabitants, and has provided that in case cities shall fix unreasonable and unjust rates, the same may be reviewed and determined by the Circuit Court of the county in which said city may be. Hurd’s Statute, chap. 24, sec. 267. This statute has been sustained in the case of the City of Danville v. Danville Water Co., 180 Ill. 241. The city of Lake Forest in enacting the rate ordinance in question was exercising a governmental function delegated to it by the legislature. Courts will not interfere with rates established by a legislative body unless they are plainly unreasonable. The presumption is that the rates fixed by the ordinance are fair and reasonable, and the burden was upon the company to overcome this presumption. In the case of City of Chicago v. Rogers Park Water Company, 214 Ill. 212, it was said that the statute conferring the power to fix rates was careful to give with it the command that the rates should be reasonable, for the reason that neither the legislative body nor the municipal authorities could take property without just compensation. “But it should also Joe remembered that the judiciary ought not to interfere with the collection of rates established under legislative sanction, unless they are so plainly and palpably unreasonable as to make their enforcement equivalent to the taking of property for public use without such compensation as under all circumstances is just both to the owner and to the public.” San Diego Land Co. v. Nat. City, 174 U. S. 739; Wilcox v. Consolidated Gas Co., 212 U. S. 19; Knoxville v. Water Co., 212 U. S. 1. The appellee by accepting rights in the public streets of appellant consented to reasonable regulation and became a gwasi-public corporation. City of Danville v. Danville Water Co., 178 Ill. 319. The city council through its committ.ee acted very deliberately. It consumed months in investigating the rights of the parties and gave the water company every opportunity to appear and demonstrate its rights. The presumption is that the rates fixed by the ordinance are fair and reasonable, and the burden is upon the appellee to show the contrary. C. & A. R. R. Co. v. City of Carlinville, 200 Ill. 314; City of Chicago v. Wilson, 195 Ill. 19; Berry v. City of Chicago, 192 Ill. 154; Rohn v. City of Beardstown, 32 Ill. App. 407.

The record in this case is very voluminous and the great bulk of it gives little information on the issue. The experts agree that the value of the plant at the end of the franchise period will be substantially $60,000. It is questionable whether anything can be allowed in the case of the plant of a public service corporation for going value above the tangible elements. City of Knoxville v. Knoxville Water Co., supra. The value of the tangible property of the company is fixed by the experts in round numbers at from $85,000 to $95,000 after making deducations for depreciation and without including anything for going value, which is an unknown quantity varying in the judgment of the experts between $2,600 and $26,000. The rates fixed by the ordinance are substantially the same as the rates under which the company operated for four years before the passage of the ordinance. The actual income under rates established by the water company before the passage of the ordinance was for the last year before the adoption of the ordinance $15,279.32 and the operating expenses were $7,497.57. This shows a profit of $7,781.75, which would pay 6% on the actual value of the property and leave $2,000 per year for depreciation and a sinking fund, which placed at interest would fully repay the loss between the present value and the estimated value at the end of the franchise period. The allowance of interest at six per cent on the investment. certainly cannot be said to be unreasonably low. Many authorities have held a rate of five or four per cent to be not so low as to justify judicial interference. San Diego Water Co. v. San Diego, 118 Cal. 556; Covington Turnpike Co. v. Sandford, 164 U. S. 578; Brymer v. Butler Water Co., 179 Pa. St. 231.

It is also contended by appellee that although the ordinance in terms gives to the appellee an exclusive franchise for thirty years, yet under the law the city had no right to grant an exclusive franchise, and that the city may grant a new franchise to some other company or build a system of waterworks itself, and that therefore appellee should for self-protection secure a return of its investment and interest before the expiration of the franchise. It is very improbable that, any other company would accept a franchise from appellant with appellee already having a waterworks plant in operation. While the city has no legal right to grant an exclusive franchise, the fact that appellee has a franchise and working plant in a city the size of appellee is in effect the grant of an exclusive franchise, and it is .unnecessary to say anything further on that feature of the case.

It does not appear, when all the evidence in the case is considered, that appellee has overcome the presumption that the rates fixed by the ordinance are reasonable ; in fact the evidence shows' that the rates are reasonable and give a fair and reasonable return to the stockholders. The trial court erred in finding the ordinance to be null and void and in violation of the rights of appellee. The decree is reversed and the cause remanded with directions to. dismiss the bill without prejudice to the right of the appellee to file another bill if the actual income derived under the ordinance shall at any time prove to be so inadequate as not to produce a fair and reasonable return.

Reversed and remanded with directions,


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Nettie H. Wilkinson, Appellee, v. Cosmopolitan Life Insurance Association, Appellant.
    Gen. No. 5215.
    1. Pleadings—what general demurrer does not reach. A general demurrer does not reach conclusions or argumentation; in the absence of a special demurrer assigning such defects the pleading containing them is sufficient.
    2. Comity—construction given to statutes of foreign state. The courts of Illinois are committed to the doctrine of accepting the decisions of courts of a foreign state in construing and applying the statutes of such foreign state.
    3. Judgments—when action upon foreign judgment sustained.
      If a judgment rendered in a foreign state is valid in such state, it will support an action of ■ debt in this state.
    Action in debt. Appeal from the Circuit Court of Stephenson county; the Hon.1, R. S. Fabbakt, Judge, presiding. Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Statement by the Court. In August, 1899, the Boyal Tribe of Joseph, a fraternal beneficiary association, organized under the laws of the state of Missouri, doing business in that and other states, issued to Robert S. Wilkinson, of Weeping Water, Nebraska, a certificate of membership by the terms of which Wilkinson was to pay a certain sum monthly during his lifetime, and at his death his widow was to receive the sum of $1,000. In 1903, the Cosmopolitan Life Insurance Association, an insurance company organized under the laws of Illinois, assumed the liabilities of the Boyal Tribe of Joseph, and issued to Wilkinson a certificate to that effect. Wilkinson had been for several years the collector of assessments of the Boyal Tribe of Joseph, and after the Cosmopolitan Life Insurance Association assumed the liabilities of the Boyal Tribe of Joseph, he continued to collect assessments and forward them to the Cosmopolitan Life Insurance Association at Freeport, Illinois. Wilkinson died in November, 1906, and in 1907, the plaintiff, Nettie H. Wilkinson, brought suit in the County Court of Cass county, Nebraska, to recover the said sum of $1,000. Service of summons was had upon William B. Cross, alleged to be another collector for the Boyal Tribe of Joseph, who had continued to collect and forward assessments to the Cosmopolitan Life Association. The defendant appeared specially by its attorney in the Nebraska court, for the purpose of moving to quash the writ on the ground that it was a foreign corporation not licensed to do business in Nebraska; that it had no representative in Nebraska authorized to acknowledge service of summons upon it and that the person upon whom such pretended service was had was not authorized by defendant to acknowledge service for it and prayed “to be discharged with its costs, etc.” The motion was overruled and the defendant ruled to answer within ten days. No answer was filed and the court rendered judgment finding, first, that the defendant was duly served; second, that the defendant had filed a motion objecting .to the jurisdiction of the court and asking-relief and that it thereby had entered a general appearance. A judgment was rendered against the defendant for $1,000.
    Plaintiff then brought suit in the Circuit Court of Stephenson county, Illinois, in debt upon the judgment of the County Court of Cass county, Nebraska. The defendant filed three pleas, first, that the defendant at the time of the commencement of the suit in Cass county resided in the state of Illinois and did not transact any business in Nebraska and that it was not found in the state of Nebraska and was not served with summons and did not appear to de-, fend said suit, except that the defendant by its at-': torney entered a special appearance and moved to quash said writ of summons and took no further action in said suit; the second and third pleas are similar in substance.
    The plaintiff filed several replications. The first and sixth replications traverse the averments of the three pleas, and aver that the defendant did transact business in Nebraska and that Cross was its agent. The second, third, fourth and fifth replications pleaded section 1942, paragraph 8 of the statutes of Nebraska, as to what constitutes an agent of a foreign insurance company-—that it is provided by said statute that any person or firm in the state of Nebraska, who shall receive or receipt for any money on account of or for any contract of insurance made by him for any insurance company, or who shall receive or receipt for money from other persons to be transmitted to such company,' for a policy or policies of insurance or any renewals thereof, shall be deemed to all intents and purposes an agent of such company; and they aver that at the time of the commencement of said suit in Cass county, W. B. Cross, with the knowledge and consent of the defendant, received from divers persons in the state of Nebraska and transmitted to said company moneys on account of contracts or policies of insurance or renewals thereof made by said defendant with such persons in the state of Nebraska, and that by virtue of said statute said Cross was then and there the agent of the defendant upon whom service of summons could be had, and that service of summons was had on W. B. Cross, etc.
    The seventh replication replied that plaintiff ought not to be barred because said defendant is estopped from denying that it transacted its business in the state of Nebraska and that the person upon whom service of summons was had was the agent of defendant, because the defendant filed its motion in said suit averring that it was a foreign corporation (setting forth in full the pleadings and proceedings in the Nebraska court, etc.), and that the service of summons was not binding and that in said motion said defendant moved to quash the writ and “to be discharged with its costs” and that said motion was overruled, etc. The defendant demurred to the several replications. The court sustained the demurrer to the eighth replication and overruled it as to the others. The plaintiff thereupon withdrew her eighth replication. The defendant elected to stand by its demurrer and thereupon judgment was rendered against the defendant for $1,048.03 and the defendant appeals to this court.
    A. Gr. Murray, J. H. Stearns and Oscar B. Zipe, for appellant.
    Bobert P. Eckert, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Each replication attempts to answer all the pleas of the defendant. The first and sixth replications attempt to traverse the pleas. The second, third, fourth and fifth replications set up a section of the statute of Nebraska, providing what acts by a party shall constitute such party an agent of an insurance company in Nebraska, with an averment that summons was served on one W. B. Cross in Cass county, Nebraska, and with averments that said Cross had done and was doing certain things in Nebraska for said defendant, whereby, by virtue of said statute, he was the agent of the defendant.

If any of the replications was a legal answer to all the pleas, then this judgment must be affirmed. The first and sixth replications are intended to be traverses of the pleas. Both these replications aver “that W. B. Cross upon whom service of process of summons in said cause in said suit was had was at the time aforesaid, in said state of Nebraska, the agent of said defendant.” The demurrer is both general and special; the special ground of demurrer to the first replication is that the replication does not plead facts but conclusions; the special ground of demurrer to the sixth and seventh replications is that the order and judgment of the state of Nebraska court is not a final judgment. If it be conceded that the averments of the first plea are conclusions, still that reason is not urged against the sixth plea. A general demurrer will only reach matters of substance, while to reach matters of form the special reason must be assigned. Argumentativeness is only available as ground of special demurrer (6 Encyc. of Pl. and Pr. 307); hence this reason not being assigned as to the sixth plea the demurrer to that plea was properly overruled. The special ground of demurrer to the second, third, fourth and fifth is that the defendant is not bound by the statute of Nebraska. The courts of Illinois are committed to the doctrine of accepting the decisions of courts of a foreign state in construing and applying the statutes of such foreign states. Fireman’s Ins. Co. v. Thompson, 155 Ill. 204; Britton v. Chamberlain, 234 Ill. 246. The statute of Nebraska pleaded in these replications, declared who shall be deemed an agent for an insurance company. The Supreme Court of that state has construed and applied section 1942, paragraph 8, of the statute of Nebraska where it provides: (Agents) Any person or firm in this state who shall -receive or receipt for any money on account of or for any contract of insurance made by him or them or for any such insurance company or individual aforesaid or who shall receive or receipt for money from other persons to be transmitted to any such company or individual aforesaid, for a policy or policies of insurance or any renewal thereof, although such policy or policies of insurance may not be signed by him or them as agent or agents of such company, or who shall in anywise directly or indirectly make or cause to be made any contract or contracts of insurance for or on account of such company aforesaid shall be deemed to all intents and purposes an agent of such company, and shall be subject and liable to all provisions of this chapter;” and holds that it includes the purpose of service of a summons in an action on a policy to recover the amount of loss, and that a bank by the performance of any of the acts enumerated in such section, becomes the agent of the insurance company, and the proper service of summons on it as agent will be service on the company. Bankers Life Ins. Co. v. Robbins, 55 Neb. 117. The demurrer was properly overruled to these replications.

There is also a second additional replication which avers that the defendant is estopped from claiming that its appearance in the Nebraska court was a special appearance, for the reason that in its motion to quash the writ in that court, it prayed for costs and that its appearance though claimed to be special became a general appearance. The defendant invoked the law of the state of Nebraska by its voluntary act and it cannot avoid the effect of that deliberate act. The motion to quash the writ for want of jurisdiction was consistent with the averments of the motion but the courts of Nebraska hold, that by the prayer “to be discharged with its costs,” the defendant invoked the power of the court on a question other than that relative to jurisdiction. In Nebraska the rule is that a defendant may appear specially to quash the service, but if he goes further and pleads for a dismissal of the case it will be held to be a general appearance in the action, as it invokes the power of the court other than that relating to jurisdiction. McKillep v. Harvey, 80 Neb. 264; Cropsey v. Wiggenhorn, 3 Neb. 108; Bucklin v. Strickler, 32 Neb. 602. This replication, however, does not plead the law of Nebraska, and we do not consider it necessary to pass on the effect of such a plea in this state. The demurrer was properly overruled to the second, third, fourth, fifth and sixth replications. There being replications that fully replied to all the pleas, the judgment is affirmed.

Affirmed.


text:
    R. A. Wright et al., Appellees, v. Cosmopolitan Life Insurance Association, Appellant.
    Gen. No. 5216.
    1. Guardian and ward—when former may sue. A guardian may in his own name as guardian sue for and recover personal property and demands of his ward.
    2. Comity—construction given to statutes of foreign state. The courts of Illinois are committed to the doctrine of accepting the decisions of courts of a foreign state in construing and applying the statutes of such foreign state.
    3. Judgments—when rendered in foreign state sustained. If by the law of a state in which a judgment was rendered a special appearance at one term of court becomes a' general appearance at the next term and thereby precluding an attack upon the jurisdiction of the court, a judgment rendered pursuant to such a'statute will be sustained in this state.
    Action of debt. Appeal from the Circuit Court of Stephenson county; the Hon. R. S. Fakrahd, Judge, presiding. Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Statement by the Court. In 1900, the Boyal Tribe of Joseph, a fraternal beneficial association organized under the laws of the state of Missouri, doing business in that and other states, issued to Henry S. Wright, of Delta county, Texas, a certificate of membership by the terms of which he was to pay $4.80 monthly during his life and at bis death the association was to pay to his heirs $3,000. In 1903, the Cosmopolitan Life Insurance Association, a life insurance company organized under the laws of Illinois, assumed the liabilities of the Boyal Tribe of Joseph and issued to Wright a certificate to that effect.
    At the March term, 1908, of the Circuit Court of Stephenson county, B. A. Wright, guardian of the estate of Ida May Wright, a minor, and Nannie Sheffield, joined by her husband, N. E. Sheffield, brought suit in an action of debt against the Cosmopolitan Life Insurance Association upon a judgment of the District Court of Delta county, Texas, recovered June 4, 1907.
    The defendant filed three pleas averring that it was not a resident of the state of Texas but was a resident of Illinois and was not found in Texas; that it was not served with process and did not appear to defend said suit nor authorize anyone to appear for it, save that, by its attorney, it appeared specially and moved to quash said writ of summons, expressly limiting its appearance for that purpose, and upon the determination of said motion its special appearance was concluded and it took no further part in said suit, and said judgment in the District Court of Delta county, Texas, was null and void.

      Plaintiffs replied to the pleas. The first replication avers that the defendant did transact business in Texas and that J. B. Biggs upon whom service of process was had was an agent of the defendant. By the second replication plaintiffs aver that upon the return day of the writ in the District Court of Delta county, defendant moved to quash the writ because it was a foreign corporation, and had no agent in Texas authorized to represent it, and that Biggs was never an agent of the defendant, and that plaintiff replied to said motion that the defendant for two years before such service was doing business in Texas through Biggs, its local agent, who was authorized to represent it, and that the District Court found Biggs was its local agent and ordered defendant to plead to the merits, etc. The third replication avers that by section 1,223 of the Statutes of Texas, it is provided that service on a corporation might be made upon any local agent within the state; that by section 3,093 of said statutes it is provided that any person * * * who shall collect or transmit any premium of insurance * * * for or with any insurance company other than for himself shall be held to be the agent of the company for which he acted. Plaintiffs aver that Biggs, with the knowledge and consent of the defendant, received from divers persons in Texas moneys on account of policies of insurance or renewals thereof made by said defendant in Texas for and with said defendant, other than for himself, by reason whereof said Biggs was then and there the agent of defendant, etc. The fourth and sixth replications pleaded that defendant ought not to be permitted to plead the pleas aforesaid, because they say that the defendant entered its special appearance and motion to quash the writ as aforesaid, to which the plaintiff replied as aforesaid and issue was joined "and on a hearing before the court, the court entered its findings that at the time of and before the issuance and service of citation J. B. Biggs, the person on whom the writ of citation was served, was the local agent and representative of defendant company within said county of Delta, State of Texas, and that said defendant did and transacted business within said county and state through said J. B. Biggs, as its local agent; and thereafter on motion of plaintiff said cause was continued until the next term, when final judgment was entered. The fifth replication pleads that the statute of Texas by section 1,243 provides, that where citation or service of summons be quashed on motion of the defendant the case may be continued for the term but the defendant shall be deemed to have entered his appearance to the succeeding term, and avers that suit was begun in Delta county, Texas, by plaintiffs against the defendant and process issued and served, and that upon the return day the defendant by its general counsel entered its special appearance and motion to quash said writ, and that plaintiffs filed a replication to said motion, and thereafter on a hearing the court overruled the plea of defendant, and that the cause was on motion continued, and thereby the special appearance became a general appearance, - etc. The defendant demurred to the several replications. The demurrer was overruled and the defendant abiding by its demurrer, the court heard the evidence and returned judgment against the defendant for $4,196. The defendant appeals to this court.
    A. Gr. Murray, J. H. Stearns and Oscar B. Zipe, for appellant.
    Bobert P. Eckert, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

Each replication attempted to answer all the pleas of the defendant; and the third and fifth replications set out sections of the statutes of Texas relied upon and the proceedings in the Texas court in foaec verba, with appropriate averments. If any of the replications was a legal answer to all the pleas then this judgment must he affirmed.

Two questions are raised by counsel for appellant in their brief and argument. It is first contended that this suit could only be maintained so far as Ida May Wright is concerned in the name of Ida Wright by her guardian, and not by E. A. Wright guardian. There is nothing in the pleadings which properly raises the question as to whether this suit could be maintained for the interest of Ida May Wright in the name of E. A. Wright, guardian of the estate of Ida May Wright, a minor. The suit is between the same parties as it was in the state of Texas. Appellant should have raised the question in the Circuit Court so that appellees might have had an opportunity to reply the statute law of Texas, section 1,197 of which provides, that a suit may be brought and maintained by a guardian, either by a guardian for the ward or by the ward in the name of the guardian, and a suit either way gives the court jurisdiction. Roberts v. Sacra, 38 Texas 580. By section 8 of chapter 47 of the Statutes of Illinois of 1845, a “guardian shall have power to demand, sue for and receive all moneys belonging to their wards.” By section 17 of chapter 64 of the present Statutes of Illinois, it is provided “the guardian shall settle all accounts of his ward and demand and sue for, and receive in his own name as guardian, all personal property of and demands due the ward * * *” This statute was construed in Muller v. Benner, Guardian, 69 Ill. 108, where it was held that in matters affecting real estate the suit must be in the name of the ward, but where the suit was concerning* the personal estate, the proper form of the action is for the guardian as such to maintain the action in his own name as guardian. The language of the statute is plain and unambiguous and the legislature must be held to have intended to mean what it has plainly expressed. The second question raised is, do the replications answer the pleas and in legal form aver that there was such service of process or such appearance by the defendant in the state of Texas that the District Court of Texas acquired jurisdiction over the defendant.

The first and second replications aver that the defendant was transacting business in the state of Texas by one J. B. Biggs upon whom service of summons was had. The third replication pleads a statute of Texas, which provides that service of process may be made upon a corporation by serving any local agent of the corporation within the state, and pleads another section of the statute which provides that any person who shall collect and transmit any premiums of insurance, other than for himself for any insurance company, shall be held to be an agent of such" company, and then averred that J. B. Biggs with the knowledge and consent of defendant collected premiums for the defendant and that service was had on him.

The fifth replication pleads section 1,243 of the statutes of Texas which provides that if a defendant appear specially for the purpose of quashing the writ of summons such appearance shall be deemed a general appearance to the succeeding term although the writ be quashed, and that the defendant did appear in the Texas court and move to quash the writ of summons and that the case was continued to the next term, when by virtue of the statute the special appearance became a general appearance.

The appellant contends that the provision of the Texas statutes pleaded in the fifth replication is null and void, and that the state of Texas could not pass a law which made a special appearance at one term a general appearance to another term; that such statute deprives the defendant of property without due process of law. The courts of. Illinois hold and are committed to the doctrine of accepting the rulings of courts of a foreign state in construing and applying the statutes of such foreign state. Firemen’s Ins. Co. v. Thompson, 155 Ill. 204; Britton v. Chamberlain, 234 Ill. 246. The Supreme Court of Texas (York v. State, 73 Texas 651; Pace v. Potter, 85 Texas 473; Aetna Life Ins. Co. v. Hanna, 81 Texas 487) has sustained and construed section 1,243 of the statutes of Texas, and holds that a special appearance merely for the purpose of quashing a service of summons is made, by the laws of Texas, a general appearance for the succeeding term of court, whether the motion is sustained or overruled. The York case was taken to the Supreme Court of the U. S. (York v. State of Texas, 137 U. S. 15) where it was affirmed, the court holding that legislation by a state simply forbidding the defendant to come into court and challenge the validity of service upon him in a personal action without surrendering himself to the jurisdiction of the court, does not deprive him of liberty or property within the prohibition of the Fourteenth Constitutional Amendment. This court must adopt and enforce the construction of the Texas statute given to it by the Texas courts, and hold that by the entering of a special appearance to question the service there was a general appearance of defendant at the succeeding term, and that the Texas court had jurisdiction over the defendant to render the judgment which was the cause of action sued upon in this suit. The defendant was under no obligation to have appeared by counsel in the Texas court to question the service, if it in fact was not doing business there and had no agent in that state, but when it went into a court of that state to test the question of service of summons under a statute of that state it made itself subject to the law of that state. The demurrer was properly overruled to the fifth replication.. The plaintiff having a single good replication to all the pleas was entitled to judgment. We do not deem it necessary to discuss the remaining replications, although we are satisfied the demurrer to the second and third was properly overruled.

Affirmed.


text:
    Martin McCullough, Appellee, v. Aurora, Elgin & Chicago Railway Company, Appellant.
    Gen. No. 5227.

      Evidence—when opinion of medical expert incompetent. The statements of the plaintiff and the knowledge obtained from him during an examination by a physician for the purpose of qualifying as a witness are self-serving in law and it is error for the court to refuse to strike out opinions of such physician based upon subjective symptoms, tests or self-serving statements so made by the plaintiff.
    Action in case for personal injuries. Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    Hopkins, Peppers & Hopkins, for appellant.
    J. C. Murphy and B. P. Ausohuler, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court. ,

This is an action on the case commenced in the City Court of Aurora by Martin McCullough, to recover damages for personal injuries alleged to have been sustained by him in ■ consequence of the negligence of the defendant while he was a passenger upon one of its interurban cars. On a trial the jury returned a Verdict for $5,000 upon which judgment was rendered, and the defendant appeals.

The evidence shows that the appellee resided at Batavia and on the morning of July 21, 1908,' the date of the injury, he got upon ■ a car of appellant at Batavia to ride to Aurora, where appellee was engaged as an accountant in the office of a gas company. The appellee stood upon the rear platform of the car with his back against the controller. The car was going fast and collided with another car of appellant company. The collision threw appellee forward, and it is claimed that he rebounded and his back just below the shoulder struck the controller.

The appellee was taken home and was attended by Dr. Johnson. He was confined to his bed about four weeks after that time; he was up, and got about on crutches in a shuffling manner from October 1st until December, when he claims to have become worse and unable to move about from that time. About a week before the trial, which was in January, 1909, the appellee went to a hospital in Aurora for special treatment on his own suggestion, but his physician, Dr. Johnson, gave him the same treatment at the hospital that he received before going to the hospital.

It is claimed by appellant that the court erred in admitting improper evidence and in refusing on motion of appellant to exclude evidence after it appeared that the same was improper. Appellee testified that he was thirty-one years of age; that at seven years of age he had had menengitis and typhoid fever in the fall of the year; that it affected his speech for some time afterwards so that he stammered and stuttered and his walking was affected so that he had to learn to walk again; that in 1906, he got leave of absence from work because he was feeling sick; that in 1907, he had fallen on the ice and broken his ankle; that from early in May, 1908, he had been treated by Dr. Kiernan on the back with an electrical vibrator up to the time of the injury; and that before that time he had worn for a year or more an appliance for spinal support. Dr. Kiernan testified that he found a sensitive spine, spinal irritation and a tenderness over the spine. The claim of appellee on the trial was that he was suffering from myelitis—inflammation of the spinal cord or some of its membranes—resulting from the collision, while appellant claims that appellee was suffering from neurasthenia or nervous prostration before the collision and that the injuries claimed to be suffered by appellee were feigned and simulated.

On Saturday before the trial Dr. Guyer and one of appellee’s attorneys visited appellee at the hospital; on the following day Dr. Guyer, Dr. Dryer and Dr. Banker visited appellee at the hospital at the request of the attorney for appellee and made an examination of appellee for the purpose of being witnesses in the case. These doctors held a consultation to arrive at a conclusion concerning appellee’s case. Dr. Guyer testified that he examined the appellee as to his family history, his previous illnesses and his present condition; that he found he was able to distinguish heat from cold (this was excluded); that he responded to the prick of a pin, which was also excluded; that he attempted to have the patient walk and that he did not move his legs as a normal individual did; that he swung his head from side to side and bent forward; that he only took one step and that was with a mowing gait. He was then asked if he was able to state from his examination of the patient without his previous history, what the patient was suffering from, and the witness answered, “no.” He was then asked if he had an opinion as to what the patient was suffering from and answered, “yes.” He was then .asked what in his opinion the patient was suffering from; to this question an objection was overruled, and the witness answered that he was suffering from an organic disease of the spinal column which he would call myelitis. He was then asked a long hypothetical question covering appellee’s history and many symptoms which it was claimed to have been proved appellee had exhibited, and assuming these facts, if he had an opinion concerning the patient’s present condition. An objection was overruled to that question and the.witness answered that he had an organic disturbance in the spine; he was then asked what he would call that disturbance and replied he could not tell because some symptoms were lacking. He was then asked to take the facts assumed in the hypothetical question with “the objective symptoms you found on your examination to tell what he was suffering from.” An objection was overruled and he answered, “he has myelitis.” On cross-examination the witness said he could not authoritatively tell whether appellee could walk; that appellee might have simulated that he could not walk; that appellee knew he was brought there by his attorney to be a witness; that the opinion he had given was passed upon the history of the case, the subjective and objective symptoms, that his opinion was partly based upon the subjective symptoms. A motion was then made by appellant to rule out the testimony of the witness, where the witness had given an opinion based upon his subjective and objective knowledge of appellee, and this motion was overruled. The examination of Dr. Banker and Dr. Dryer were substantially the same as that of Dr. G-uyer, with similar rulings. If these physicians had treated appellee and their testimony had been based upon what they learned while they were treating him professionally a different rule would apply from that which controls when the physician simply examines the party with a view of being a witness. The statements of appellee and the knowledge obtained from him during the examination by the physician for the purpose of qualifying as a witness were self-serving, and it was error for the court to refuse to strike out opinions of witnesses based upon subjective symptoms, tests, or self-serving statements of appellee. Shaughnessy v. Holt, 236 Ill. 485; Greinke v. C. C. Ry. Co., 234 Ill. 564; Chicago Union Trac. Co. v. Giese, 229 Ill. 260; C. & E. I. R. R. Co. v. Donworth, 203 Ill. 192. This question is very fully discussed in the Greinke case, with a full citation of the authorities on that question, and there is no necessity of enlarging upon it.

The appellee was treated by Doctor Johnson professionally for the injuries sued for and as we have said a different rule prevails as to such witnesses.

“There is some apparent confusion in the author-

ities on the question as to whether, in such cases as this, a medical expert may be asked his opinion as to whether the physical conditions of the injured party are the result of the injuries complained of. Where there is a conflict in the evidence as to whether the plaintiff was injured in the manner claimed, it is not competent for witnesses to give their opinions on that subject; but where there is no dispute as to the manner of the injury, the question is as to whether certain physical conditions were caused by the injury complained of, and the determination of the question involves a special skill or trade, or a knowledge of science that does not come within the experience of laymen possessing the education or knowledge common to those moving in the ordinary walks of life, then persons possessing the special knowledge, skill or science may give their opinions on the subject. Appellant contends that the inquiry should be as to whether the injury might have produced the physical conditions, and not whether it did produce them. Expressions will be found in some cases tending to support that view, but the weight of authority in this State, as well as in other jurisdictions does not support appellant’s contention.” City of Chicago v. Didier, 227 Ill. 571. There was a controverted question as to whether the ailments from which appellee now claims to be suffering were caused by the collision or were matters of long standing. The evidence of Drs. Guyer, Dryer and Banker, except upon the original hypothetical question, was improper and should have been excluded from the consideration of the jury. A proper hypothetical question to put to them would have been an abstract question which would have left it to the jury to make the application of the question and answer to the case on trial. In the examination of Dr. Johnson, he testified that appellee was suffering from neurasthenia. Counsel for appellee suggested the term myelitis as the disease he was suffering from, and the doctor adopted the suggestion of counsel. This was improper, and counsel should not have been permitted to lead the witness in that way.

For the errors in the admission of evidence the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    William C. Robinson, Administrator, Defendant in Error, v. Louis A. Kraft, Plaintiff in Error, and Henry Hudson, Trustee, et al., Defendants in Error.
    Gen. No. 5232.
    1. Statute of Limitations—when does not har writ of error. If at the time a judgment is rendered five years is allowed by the statute for the suing out of a writ of error, a statute shortening the period to three years which goes into effect after the lapse of three years from the date of the judgment in question, will not bar a writ of error sued out within five years from the date of the rendition of such judgment.
    2. Evidence—must he responsive to issues. Evidence which has no bearing upon any issue in the cause is properly excluded.
    3. Witnesses—who incompetent hy virtue of interest. A party pecuniarily interested in the result of a suit is incompetent therein where the adverse party sues or defends in a representative capacity.
    Bill in chancery. Error to the Circuit Court of Lake county; the Hon. Chaei.es H. Donnelly, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    G. J. George and Alonzo Hope, for plaintiff in error.
    Edward J. Heydecker and Elam L. Clarke, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

On August 21, 1901, William C. Robinson, administrator de bonis non of the estate of Thomas H. Burn- ham, deceased, filed a bill in chancery in the Circuit Court of Lake county against Louis A. Kraft, Henry Hudson, trustee, P. Gr. Hale, successor in trust, and the unknown owner or owners of two notes dated June 20, 1896, and alleged in the bill that on the 14th day of April, 1891, Louis A. Kraft was indebted to Ella P. Burnham in the sum of $15,000, evidenced by three promissory notes dated April 14, 1891, for the sum of $5,000 each, due in one, two and three years respectively after the date thereof, with interest at the rate of six per cent per annum; that to secure said notes and interest which were for purchase money of the premises mortgaged, Louis A. Kraft executed a mortgage of that date conveying'to Ella P. Burn-ham, certain described real estate in Lake county; that the mortgage was duly recorded; that Ella P. Burnham for a good consideration on September 21, 1891, transferred said notes by indorsement thereon to Thomas H. Burnham; that Thomas H. Burnham departed this life intestate on June 29, 1899, and that at the time of his death he was the legal owner of said notes; that J. Cooper Hutchinson was appointed administrator of the estate of Thomas H. Burnham by the County Court of El Paso county, Colorado; that said Hutchinson resigned as such administrator and that William C. Bobinson on April 12, 1901, was appointed administrator de bonis non of the estate of Thomas H. Burnham deceased; that said $15,000 with interest from April 14, 1891, is due and unpaid; and the bill prayed for an accounting and a foreclosure of said mortgage, except as to a certain portion of the real estate therein described which had been released by Thomas H. Burnham in his lifetime.

Louis A. Kraft on October 10, 1901, filed an answer admitting the indebtedness to Ella P. Burnham, but denying that said notes were assigned by indorsement as alleged and that Thomas H. Burnham ever was the legal or equitable owner of said notes or that the name of Ella P. Burnham below the endorsement was written by her.

In November, 1901, one Ella Charlena Decker filed a petition in said cause for leave to intervene, stating therein that she was the daughter and only child of Ella P. Burnham; that Ella P. Burnham died leaving a last will bequeathing to petitioner all her property; that said will had been lost or destroyed; that Ella P. Burnham left her surviving Thomas H. Burnham, her husband, and petitioner as her only heirs at law; that Thomas H. Burnham had been appointed administrator of the estate of Ella P. Burnham by the Probate Court of El Paso county, Colorado, and that he died without having closed said estate; that in November, 1899, the estate of Ella P. Burnham was closed' in the Probate Court of El Paso county, Colorado, by J. Cl Hutchinson, administrator of the estate of Thomas H. Burnham, deceased; that Ella P. Burn-ham never transferred said note to Thomas H. Burn-ham and that the indorsements on said notes were never in fact signed by her; that she had notified Louis A. Kraft that she is the owner of an interest in said notes, and praying for leave to interplead and be made a party to the bill. Leave was granted to her to intervene. On January 8, 1902, she filed her intervening petition alleging the same facts as in her petition to interplead and made the complainant and defendants in the original bill, parties defendant to the intervening petition, and prayed to be decreed the owner of an undivided one-half interest in said notes and mortgage described in the original bill. William C. Robinson, administrator, etc., filed an answer to the bill of interpleader, denying that Ella P. Burnham left a last will and that any other person than Thomas H. Burnham had any interest in the estate of Ella P. Burnham, and asserting that he as such administrator is the only person interested in the foreclosure of the mortgage. On October 6, 1902, Ella Charlena Decker, leave of court having been obtained, withdrew her petition for leave to interplead and her hill of interpleader. Thereafter an order of default was entered against all the defendants except Louis A. Kraft. A replication was filed to his answer and the cause was, by agreement, referred to a special master to take evidence and report the same with his conclusions. The evidence was taken partly by depositions in the state of Colorado and partly before the special master, who reported in favor of the complainant, finding the notes had been transferred by Ella P. Burnham to Thomas H. Burnham and that there was due from Louis A. Kraft on the notes secured by the mortgage on November 25, 1903, the sum of $24,852.45.

Louis A. Kraft filed objections before the special master which were overruled and they were refiled as exceptions in the Circuit Court. On December 19, 1903, after a hearing by the court a decree was .entered approving the report of the master, overruling the exceptions and reciting a finding of facts from the evidence. The decree finds that Ella P. Burnham duly assigned said notes by indorsement thereto to Thomas H. Burnham and that he was the legal owner of said notes and the equitable owner of said mortgage securing said notes; that William C. Bobinson was duly appointed administrator de bonis non of the estate of Thomas II. Burnham, deceased. It finds the amount due on each of said notes and that there was then due on said notes $24,912.45, and decrees a foreclosure of said mortgage and orders that if the amount found to be due be not paid within five days, that the real estate described in said mortgage, which had not been released, describing the portion which had not been released, he sold by the special master, etc. The property was therefore sold by the special master after giving due notice, and after the payment of the costs, $17,712.50, the remainder of the proceeds of sale, was applied on the mortgage indebtedness. The report of sale was approved March 7, 1904, and on March 17, 1904, a deficiency judgment for $7,447.97, was entered against Louis A. Kraft. On December 19, 1908, Louis A. Kraft sued out a writ of error from the Supreme Court of this state to review the decree of the Circuit Court of Lake county. Louis A. Kraft procured a severance of the defendants in the Supreme Court and there was publication as to his co-defendants. The Supreme Court transferred the case to this court and Louis A. Kraft is the only defendant who assigns error or questions the decree.

The defendant in error, William C. Kobinson, administrator, etc., has filed a plea, setting up that the writ of error was not sued out until nearly five years after the rendering of the original decree, and that by section 117 of the Practice Act in force July 1, 1907, it is provided, “A writ of error shall not be brought after the expiration of three years from the rendition of the decree or judgment complained of.” The plaintiff in error demurs to the plea of the statute of limitations. By the statute in force at the time the original decree was entered, it was provided that (sec. 86, chapter 110, Hurd’s Statutes 1903), “A writ of error shall not be brought after the expiration of five years from the rendition of the decree or judgment complained of.” The writ of error in this case was sued out on the last day of the five years allowed by that statute to sue it out. In 1907, a new statute of limitations concerning writs of error was passed (sec. 117, chap. 110, Hurd’s Statutes 1908), which went into effect July 1, 1907, that limited the time within which a writ of error might be brought to three years from the rendition of the decree complained of. More than three years had expired since the entering of the original decree when the act of 1907 was passed and went into force. While it has been held that the legislature has power to pass statutes of limitation and that such statutes if they affect existing rights are not unconstitutional if a reasonable time is given for the assertion of the rights before the bar of the statute takes effect (Bradley v. Lightcap, 201 Ill. 511), yet the act of 1907 cannot apply to the cause at bar for the reason that under it the plaintiff in error would be deprived of any right to a writ of error the instant it took effect, if it affected the rights which plaintiff in error, under the statute in force when the decree complained of was rendered, had to sue out and prosecute a writ of error. The writ in this case was sued out within the time given by the statute of 1877, and within a reasonable time after the act of 1907 went into effect. The demurrer to the plea will be overruled.

It is insisted on behalf of plaintiff in error that the decree is against the weight of the evidence. The contention of plaintiff in error is, not that he did not owe the notes when the decree was rendered, but that Thomas H. Burnham was not the owner of the notes at the time of the death of his wife, that they were never transferred to him and that the purported signature of Ella P. Burnham on the back of the notes is a forgery, and that Ella P. Burnham had a daughter, Ella Charlena Decker, who had an interest in the notes. The claim is that Ella P. Burnham had a former husband by whom she had a child and that such fact was unknown to Thomas H. Burnham. Ella Charlena Decker after being given leave to interplead in the original bill in chancery and after filing her petition, voluntarily withdrew her intervening petition and abandoned all claim to the money in controversy in this suit. There was no pleading presenting any issue concerning any claim to the notes or any part of them made by any other person.

The evidence shows that Ella P. Burnham and Thomas H. Burnham were husband and wife; that Ella P. Burnham at the time of her death and for several years prior thereto resided in Colorado Springs and her husband was on a ranch thirty-five miles distant. Charles P. Kraft, a brother of Louis A. Kraft, Abbie E. Willis, a sister of Ella P. Burnham, and Mrs. M. E. Kraft, a sister-in-law of plaintiff in error, testified on behalf of plaintiff in error, that the signature to the transfer on the back of the notes is not the signature of Ella P. Burnham. These were the only witnesses who testified that it was not her signature. For the defendant in error, Prank J. Burn- ' ham, a brother of Thomas H. Burnham, testified that he saw Ella P. Burnham write her name on the back of the notes in Colorado Springs, about a month before she died, and that he saw her deliver the notes to her husband Thomas H. Burnham. J. W. D. Strovell, who resided in Colorado Springs, testified that he had business and official relations with Ella P. Burnham; that he was well acquainted with her signature, and that the signature on the back of the notes is her genuine signature. Edwin J. Eaton who had been city assessor and county clerk of El Paso county, Colorado, and Secretary of the State of Colorado, testified that he knew Ella P. Burnham intimately, and that he had seen her write many times, that he knew her signature and that the signature on the back of the notes is her signature. Arthur I. White, teller in the El Paso National Bank, testified that he was acquainted with the signature of Ella P. Burn-ham and that the signature on the back of the notes is her signature. W. H. McIntyre, a banker in Colorado Springs, testified that she was a depositor in the bank of which he was cashier, that he knew her signature and that he is confident the signature on the back of the notes was hers. John H. Thedinga testified that he was a grocery-man in Colorado Springs with whom Mrs. Burnham did business; that he had done business with her as a notary and that the signature on the back of the notes is her signature. The clear preponderance of the evidence shows that the signature below the indorsement on the back of the notes is the signature of Ella P. Burnham and that the notes were transferred by her in her lifetime to Thomas H. Burnham.

Louis A. Kraft also assigns for error that the court erred in excluding his testimony as to matters that occurred prior to the death of Thomas II. Burnham. It was sought to prove by Louis A. Kraft that at the time Thomas H. Burnham released a certain part of the mortgage property from the mortgage, that Louis A. Kraft paid $7,500 on the notes in controversy by giving notes for that amount. These notes were given to Thomas H. Burnham. Plaintiff in error was not competent to testify concerning anything that occurred in the lifetime of the deceased, for the reason that the complainant, defendant in error, was prosecuting this suit in his official capacity as the administrator of a deceased person. Plaintiff in error was a defendant and an incompetent witness under section 2 of the evidence act, which provides that no party to a civil suit shall be allowed to testify in his own behalf when any adverse party sues or defends as the executor or administrator, etc., of any deceased person. The evidence was not proper for the further reason there was no pleading alleging payment of any part of the notes or any issue under which it was admissible.

It was also claimed that there was error in the refusal to permit Sister Seraphica to testify as to the existence of Ella Charlena Decker, that she was a daughter of Ella P. Burnham. That was properly excluded as there was no issue on that question. Ella Charlena Decker by withdrawing her interpleader waived all rights, if any she ever had, to participate in the proceedings.

Finding no error in the case the decree is affirmed.

Affirmed.


text:
    William C. Robinson, Administrator, Defendant in Error, v. Louis A. Kraft, Plaintiff in Error, and Henry Hudson, Trustee, et al., Defendants in Error.
    Gen. No. 5233.
    This case is controlled by the decision in Robinson v. Kraft, ante, p. 213.
    Bill in chancery. Error to the Circuit Court of Lake county; the Hon. Chables H. Donnelly, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    G. J. George and Alonzo Hope, for plaintiff in error.
    Edward J. Heydecker and Elam L. Clarke, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

This case is a suit in chancery between the same parties as No. 5232, to foreclose a mortgage given to secure a note for $2,000. The note and mortgage are of the same date and the mortgage is on the same premises as that in No. 5232. The cases.were heard on the same evidence. The same questions are argued by the same counsel, the briefs and arguments in both cases are identical. The opinion in the preceding case is decisive of this case. Ante, p. 213. The decree is affirmed.

Affirmed.


text:
    John Taylor, Defendant in Error, v. Illinois Central Railroad Company, Plaintiff in Error.
    Gen. No. 5237.
    1. Verdicts—when set aside as against the evidence. It is the duty of the appellate courts under the- law as it exists in this State to consider the testimony, and if they find that the verdict and judgment are not supported hy it, or are clearly against the weight of the evidence, to set aside such verdict and reverse the judgment. •
    2. Ordinances—what essential to establish existence of. In order to show the existence of an ordinance the publication itself in which such ordinance is contained must somewhere, either on the title page or in a proper certificate at the end, • show that it is published by authority of the city.
    3. Negligence—what does not show violation of ordinance requiring a flagman at crossing. To show that there was no flagman at one side of a crossing is not sufficient to show a violation of an ordinance requiring flagmen at crossings.
    4. Contributory negligence—when person crossing railroad tracks guilty of. Seld, that the plaintiff in this case was guilty of contributory negligence in seeking to cross the railroad tracks in question, it appearing from the evidence that he had capacity to comprehend and fully know the danger of crossing a railroad track, that he possessed a certain familiarity with the management of trains at such crossing and that there was nothing to obstruct his view of the particular locomotive which caused his injury.
    Action in case for personal injuries. Error to the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed with finding of facts.
    Opinion filed March 11, 1910.
    Snapp & Heise, for plaintiff in error; W. S. Kenyon and J. O. Drennan, of counsel.
    Kruse & Peden, Joseph W. Jones and Coll McNaughton, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

John Taylor brought suit in the Circuit Court of Will county against the Illinois Central Railroad Company to recover for personal injuries sustained while crossing the tracks of defendant company at the intersection of its tracks and Ninety-first street in South Chicago. Plaintiff recovered a verdict and judgment for $4,000. The defendant prosecutes this writ of error to review that judgment.

The declaration contains seven counts. The first count avers that defendant negligently and carelessly operated a locomotive, etc.; the second count avers that the defendant wantonly propelled a certain locomotive, etc.; the third count avers a failure to ring a hell or sound a whistle as required by statute, etc.; the fourth count avers an ordinance of the city of Chicago requiring a flagman at railroad crossings, and a failure on the part of the defendant to comply with such ordinance. The remaining counts aver respectively certain ordinances which, however, were not attempted to be offered in evidence and may be disregarded; all the counts aver due care on the part of the plaintiff.

The evidence shows that where the tracks of plaintiff in error cross Ninety-first street there are several parallel tracks belonging to the B. & O. Ry. and to the plaintiff in error. The B. & O. has the east five tracks and west of the B. & O. tracks are two Illinois Central tracks sixteen feet apart. On each side of the street there is a sidewalk, crossing all the tracks; between the Illinois Central tracks adjoining the north side of the north sidewalk is a small building used as a ticket office; immediately north of this building is a platform about ten feet wide, elevated about four feet, running north about 350 feet, with a track of plaintiff in error on each side of it which is used solely for suburban traffic. Trains going south use the west track and trains going north use the east track. The train pulled by the locomotive by which defendant in error was injured did not go further south than Ninety-first street, which appears to be the end of the suburban traffic. There were gates, on the east side of the B. & O. tracks and on the west side of the Illinois Central tracks, which were operated by the railroads from a tower situated north of the sidewalk between the two most westerly B. & O. tracks. The locomotive by which defendant in error was injured was equipped with headlights, lamps and cowcatchers at . each end. It came south with its train of passengers on the west track and stopped at the platform for the passengers to unload; it then passed south across the street to a switch which crossed over onto the east suburban track, then backed the train to the east side of the platform; the locomotive was then uncoupled from the south end of the train and ran back to the switch, then over on to the west track then north across the street to the north of the platform where another switch was located on which it crossed over to' the track the train was on, and then back on the track and coupled to the north end of the train, ready to pull the train to Chicago. It was while the locomotive was crossing Ninety-first street going north to pass around the train that defendant in error was struck by the locomotive and injured.

Defendant in error at the time of the accident was a boy just past the age of eight years, was brighter than the average boy of his age, with good eyesight and hearing; had been taught the danger of crossing railroad tracks, had been much about the Ninety-first street ticket office of plaintiff in error where he had been a newsboy selling papers in that neighborhood for two years; and was well acquainted with one of the ticket agents, often running errands for her. On November 8, 1905, at about six o’clock in the evening, he was sent by his mother to a meat market on the west side of the Ninety-first street crossing of the tracks; when he reached the crossing the gates on the east side were down and a long B. & O. freight train was crossing the street on the second B. & O. track. While the train was crossing the street a number of persons were waiting until the train cleared the street; the east gate was then raised and they started across on the north sidewalk, the west gate still being down. Defendant in error went ahead of the others in a half running and hopping fashion, going sideways with his face to the north and just as he reached the west track of plaintiff in error the locomotive going north on the west track to pass • around the train to the other end struck him, injuring - him so that he lost his left leg above the knee.

It is assigned for error that the judgment cannot be sustained on the evidence. The only evidence offered to sustain the first, second and third counts is that concerning the rate the locomotive was run. Two witnesses testify it was running at the rate of twenty . to twenty-five miles an hour and two that it was running very fast. Seven witnesses testify it was running very slow, at from five to ten miles an hour. The proof is that the locomotive went from thirty to one hundred and thirty feet after striking the boy. The distances are given that it had come from the point of the switch when it got to the west track, and how far it was going before it would have stopped to back up to the train. The great preponderance of the evidence is that the speed of the engine as it crossed the street was between five and ten miles per hour. The testimony that it was running twenty or twenty-five miles per hour is unreasonable in view of the facts. It was only running from a switch just south of the street to the switch just north of the passenger platform. It had only just started from the south switch. It had to stop for the switch to be thrown when it reached the place to cross over. If an engine could be forced to a speed of twenty or twenty-five miles per hour in so short a distance, it is not reasonable to believe that an engineer would try to get it such a speed for an instant when he had to stop immediately. It would be a foolish or playful act in which an engineer would not be likely to indulge. The clear preponderance of the evidence and all the probabilities support the claim of defendant in error as to the speed of the engine as it crossed the street. One witness testifies he did not see a headlight, eight testify the headlight was burning on the locomotive, and there were two electric lights in the immediate vicinity. Two witnesses testify the bell was' not rung, and eight testify the bell was ringing. The preponderance of the evidence applicable to the first three counts, shows that plaintiff in error was not guilty of the negligence charged therein, and it is very doubtful if a judgment can be sustained on the evidence in the record on any of those counts, if plaintiff had been exercising due care. “It is the duty of the Appellate Courts under the law as it exists in this State to consider the testimony, and if they find that the verdict and judgment are not supported by it, or are clearly against the weight of the evidence, to set aside such verdict and reverse the judgment.” C. & E. R. R. Co. v. Meech, 163 Ill. 305; Brown Hoisting & Conveying Machine Co. v. Bennett, 96 Ill. App. 514.

It is also assigned for error that the court improperly admitted in evidence an alleged ordinance of the city of Chicago requiring the railroad to keep a flagman in certain portions of the city in which' is included this crossing, and which was offered to sustain the fourth count. The attorney who offered it in evidence stated that it was passed March 20, 1905, published in pamphlet form April 15,1905, and in book form October 15, 1905, but made no proof that it was printed and published by authority of the city council. The record shows that counsel for plaintiff in error asked counsel for defendant in error: “Is that all you offer in connection with 1991?” (the section), and counsel replied, “Yes, sir.” Objection was made to the admission of this evidence “on the ground that it has not been shown by the record that it was an ordinance of the city of Chicago in force at the time of the accident.” No attempt was made to make any proof which would make it admissible. The statement of counsel did not prove it was published by authority of the city council. The publication itself, somewhere, either on the title page or in a proper certificate at the end, must show it is published by authority of the city, to make it competent evidence. C. & A. R. R. v. Wilson, 225 Ill. 50, 128 ILl. App. 88; Illinois, Iowa and M. Ry. Co. v. Minnihan, 129 Ill. App. 432; I. C. R. R. v. Warriner, 132 Ill. App. 301.

Concerning the evidence applicable to the fourth count, counsel for defendant in error limited their questions as to the presence of a flagman at that crossing,'to the north side of Ninety-first street. The question put to the plaintiff was: “On that night when you were hurt, I will ask you if you saw any watchman or flagman on the north side of Ninety-first street on the cross walk?” Answer, “No, sir.” William Lawlow was asked: “What if any watchman was there on the north cross walk as that engine approached it.” Answer, “There was no watchman that I saw at all.” Dennis Egan was asked, “What if any watchman did you see on the ground on the north cross walk of Ninety-first street at that time?” Answer, “I didn’t see no watchman.” Beuben Peterson was also asked if he saw a watchman at that north crossing and made the same answer. This was all the evidence on that question and it is very suggestive that defendant in error should so peculiarly limit these questions. If the alleged ordinance in evidence had been properly admitted it only required a flagman at the crossing, which would include the driveway and the south sidewalk as well as the north sidewalk. The evidence is not sufficient to sustain a judgment on that count.

It is also assigned for error that a peremptory instmction should have been given as requested by plaintiff in error for the reason that defendant in error was not in the exercise of due care. The defendant in error says he was hurrying on the errand his mother sent him to do; that he did not look south; that some one whistled to him and he looked north; that the west crossing gates were up; that he did not see the engine; that he did. not hear the bell; that he did not see the headlight ; that he did not see the conductor who stood on the south walk; that he did not see the street car standing west of the west gates waiting to go across, and that he looked north all the time. The great preponderance of the evidence shows that he had the capacity to comprehend and fully knew the danger of crossing a railroad track and that he was familiar with the management of the suburban train at that depot; that there was nothing after the B. & O. train had passed to obstruct the view of the locomotive of plaintiff in error and that several persons called to defendant in error before he was on the track. One of the trainmen standing on the pilot of the engine saw the defendant in error when he was opposite the gate tower and when the locomotive was at the south sidewalk and seeing the boy hopping towards the track the locomotive was on with his back towards the locomotive called to him and tried to catch hold of him just as he stepped on the track, and he heard others “holler at him.” The west gate was down and a street car stood there waiting to cross. These facts all show the defendant in error was not in the exercise of due care, and that he was injured because of his own negligence. Even if the ordinance offered to prove the fourth count had been properly proved a judgment could not be sustained under the evidence. The judgment is reversed with a finding of fact.

Reversed with finding of fact.

Finding of fact: The defendant in error was not in the exercise of due care at the time he was injured and was injured because of his own negligence.


text:
    People of the State of Illinois, Defendant in Error, v. Al Beecher, Plaintiff in Error.
    Gen. No. 5240.
    1. Appeals and errors—when admission of evidence not subject to review. If it is urged that a paper received in evidence was incompetent and that instructions predicated thereon were improper, a review of such questions cannot he had in the absence of the bill of exceptions setting forth such paper.
    2. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    3. Dram-shops—what instruction proper in prosecution for selling intoxicating liquor in anti-saloon territory. In such a prosecution an instruction is proper which is in the language of the statute.
    4. Instructions—approved form as to duty of jurors to follow the law. In an action for unlawfully selling intoxicating liquor in anti-saloon territory an instruction is proper which tells the jury that it should not permit sympathy or its ideas of what the law should be, or whether the laws are good or desirable laws, to interfere with or bias it in any degree, that the personal ideas of the jurors have no place in arriving at a verdict and that they should try the case solely upon the laws as they existed and upon the evidence produced in court.
    Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Boone county; the Hon. Anthony Clarity, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    William L. Pierce, for plaintiff in error.
    Patrick H. O’Donnell and Charles W. Ferguson, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

The grand jury of Boone county at the April term, 1909, returned an indictment consisting of four counts against A1 Beecher, charging that the defendant had unlawfully sold intoxicating liquor in the town of Belvidere, in Boone county, while the same was anti-saloon territory. The indictment was certified to the County Court for trial. The defendant upon being arraigned pleaded not guilty. Upon a trial there was a verdict of guilty upon the first, second and third counts and judgment rendered upon the verdict assessing fines against the defendant amounting to $200 and the defendant was also sentenced to jail on the first count for thirty days and ten days on each of the other two counts. The defendant prosecutes this writ of error to review this judgment.

It was stipulated by the plaintiff in error that the township of Belvidere, in Boone county, Illinois, now is, and since the 7th of May, 1908, has continuously been anti-saloon territory.

It is assigned for error that the court erred in the admission in evidence of a copy of the record of the internal revenue collector. The record shows that: “It is stipulated by the people and the defendant and his attorney that the paper offered in evidence is a true and correct copy of page 17 of the record of' the Special Tax Stamps or Receipts to retail liquor dealers issued by the collector of the United States Internal Revenue for the First District of Illinois of which Boone county in the State of Illinois, is a part.” This was objected to as not being the proper way to prove the record of the internal revenue stamp and because it was improper, irrelevant and immaterial. The objection was overruled. The bill of exceptions states in relation to said document: “paper is admitted in evidence and is marked ‘people’s ex-' Mbit A’.” The instrument, exMbit A, although admitted in evidence, is not in the bill of exceptions, and we cannot know how the record was proved nor what it contained, bnt the admission is that it was a record of special tax stamps to retail liquor dealers issued by the United States. One of the reasons urged by defendant in error in arrest of judgment is because the court admitted upon the trial of said cause against the objection of the defendant the United States revenue tax stamp or receipt in said cause. The paper not being in the .record, it is not necessary for this court to indulge in any presumptions in favor of plaintiff in error concerning it. The bill of exceptions is the pleading of plaintiff in error and any presumption would be against him. Rogers v. Hall, 3 Scam. 6; Garrity v. Hamburger Co., 136 Ill. 499. In the absence of the' instrument from the record, and with the admission of plaintiff in error, we cannot say there was any error in its introduction in evidence or in any instruction based thereon.

It is also urged that the evidence does not support the verdict. The verdict was returned upon the testimony of Milo Murphy, a farmer living a short distance from Belvidere, who testified that in April, 1909, he was in Beecher’s place of business on Logan avenue, in the town of Belvidere, and that he bought whiskey there by the glass at three different times and paid ten cents for it each time; that on one of the occasions he called for ginger ale and got whiskey; that on one of those occasions he drank in company with Thomas Bracken and others, and that on April 17, he went into Beecher’s place of business with a man named Barker' and that Barker bought two bottles of beer and that he gave Murphy one of them. Murphy testified that the bottle contained lager beer. Bracken testified that he met Murphy on the street with others, and that they went into Beecher’s place on Logan avenue and got a drink or a cigar or something. An attempt was made to impeach the veracity of Murphy by a number of character witnesses. The state also introduced a number of witnesses who testified that Murphy’s reputation for truth and veracity was good. Beecher testified denying that he sold any liquor to Murphy, but said he conducted a business in the place named and sold cigars, pop and soft drinks. The credibility of the witnesses was a question for the jury and we would not be justified in reversing its finding when all the evidence is considered together.

It is contended there was error in the giving of the sixth instruction on behalf of the people which told the jury that it was not incumbent upon the prosecution to prove that liquor had been sold which actually intoxicated a person or that any person has become intoxicated on. All that is required is proof of a sale by the defendant of any distilled, spirituous, vinous or fermented or malt liquor, whether strong or weak, by evidence sufficient to prove the guilt of the. defendant as charged in the indictment. This instruction is in the language of the statute in so far as it tells the jury what liquors it is unlawful to sell in anti-saloon territory, and an instruction in the language of the statute is not erroneous. The seventh instruction is also claimed to be erroneous. This instruction told the jury that it should not permit sympathy or its ideas of what the law should be, or whether the laws are good or desirable laws, to interfere with or bias the jury in any degree; that the personal ideas of the jurors have no place in arriving at a verdict and that they should try the case solely upon the law as it exists and upon the evidence produced in court. The plaintiff in error was being tried for an infraction of the law, and jurors are not justified in disregarding the law of the state, even if it is not in accordance with their ideas of what the law should be.

Plaintiff in error complains of the second refused instruction. The instruction was properly refused because it attempted to tell the jurors that they may exercise their judgment on, and find not to be intoxieating, liquors defined by the statute to be intoxicating and the sale of which is prohibited by the statute. The judgment is affirmed.

Affirmed.