text:
    David F. McCabe, Appellee, v. Swift & Company, Appellant.
    1. Evidence—when general objections insufficient. General objections are not sufficient where the nature of the question is such that it will not clearly appear “at first blush” to be improper.
    2. Evidence—as to when expert evidence competent. Expert evidence as to the cause of an explosion is competent.
    3. Evidence—when memorandum may be used to refresh recollection. A witness may properly be permitted to refresh his recollection from a memorandum which he has testified was made by himself from his own memory and was made at the time when he had the facts in mind and was correct at the time he made it.
    4. Evidence—upon what physician may base his opinion. A physician who has treated a plaintiff suing for personal injuries may predicate his opinion as well upon subjective as objective symptoms and may state what such opinion is and his reasons therefor.
    5. Master and servant—duty of former as to methods of doing work. The master is not required to adopt the usual method of doing particular work; all that he is required to do is to exercise reasonable care to adopt a method reasonably safe.
    6. Instructions—particular phrases condemned. The phrase “would not he likely to discover by the use of ordinary care,” is improper, the proper language is “could not have discovered by the exercise of reasonable care;” likewise, the phrase “known or which should have been known to the defendant,” is inapt, the appropriate expression is “known or which by the exercise of reasonable skill and care would have been known.”
    7. Instructions—approved form as to what does not tend to show negUgence. An instruction upon this subject as follows approved:
    “In cases of this nature the mere fact of the accident of itself alone is not any evidence of negligence on the part of the defendant, but before the plaintiff can recover, he must prove that the defendant was guilty of negligence, as charged in the declaration, and that this negligence was the cause of this éxplosion and injury to the plaintiff.”
    Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the February term, 1908.
    Reversed and remanded.
    Opinion filed September 12, 1908.
    C. E. Pope, for appellant.
    D. E. Keefe, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case,' in the Circuit Court of St. Clair county, bv appellee against appellant, to recover for a personal injury sustained by appellee while in the service of appellant as a machinist’s helper. Verdict and judgment in favor of appellee for $3,000.

The declaration consists of two counts, but for the purpose of this opinion it will be sufficient to state the substance of one of them.

Appellant was operating a large meat packing plant, and appellee was employed in its machinery department as a helper. It was the duty of appellee to assist the machinist in charge of that department, and to do whatever work and perform whatever duty was assigned to him by that machinist. It is stated that on the day of appellee’s injury, the machinist commanded him to disconnect a piston rod from the piston that was attached thereto; that he was a young man and inexperienced about mechanical work; that appellant carelessly and negligently directed him to take the piston rod to a blacksmith shop and heat it so that it could be disconnected; that the piston was hollow and had in it water or vapor, which if heated to a high degree would cause an explosion; that appellant knew this fact or should have known it “by the exercise of reasonable care” and that he did not know it and that it was not discoverable by him by the use of ordinary care on his part; that appellant gave him no warning of the danger of an explosion, nor any instructions or directions with respect to such danger; that he obeyed the directions given him and took the piston and rod to the blacksmith shop, placed it in the fire and proceeded to apply heat to it, as he was directed to do, and while he was in the exercise of ordinary care for Lis own safety, the piston exploded with great force, throwing broken iron, fire and coal upon his hands, body, face and arms, severely burning and injuring both his eyes, and bruising his body and limbs; that he suffered great pain, incurred large expenses in and about endeavoring to be cured, lost much time from his business, and that one of his fingers had to be amputated and the sight of both of his eyes was permanently impaired.

Counsel for appellant contends that appellee’s ease is wholly unsupported by the evidence and that the trial court erred in refusing to direct a verdict in favor of appellant. In our judgment appellee’s case is not unsupported by evidence and we think it is not without merit.

Counsel complains of many errors in the rulings of the trial court with respect to the admission and rejection of evidence and with respect to the giving and refusing of instructions. Some of these complaints, we think, are well founded, and inasmuch as the judgment of the Circuit Court will be reversed for “errors of law” and will be remanded and may be tried again, we will not discuss the evidence in detail, nor at all, further than is necessary in the discussion of the questions of law raised by counsel.

As to many of the rulings of the trial court with respect to the admission and rejection of evidence, counsel is not in position to avail of his objections; they being merely general objections. The rule with respect to the sufficiency of objections is, that the general objections are not sufficient where the nature of the question is such that it will not clearly appear “at first blush” to be improper. In Ohio and Mississippi Railway Co. v. Walker, 113 Ind. 196 (200), the court, in an opinion by Mr. Justice Elliott, states the rule and the reasons for it as follows: “Objections to evidence to be of any avail must be reasonably specific. The particular objection must be fairly stated. It is not enough to state that the evidence is incompetent, or that it is immaterial and irrelevant. This much is implied in the bare fact of objecting. If it be unnecessary to state the particular objection, quite as well say, ‘we object’ and be done with it, since a mere general objection amounts to nothing more, for it is simply tantamount to a.n expression of the fact that counsel do object. It is no answer to the proposition asserted by the authorities to say that the evidence itself may reveal the objection, for this may be said of all incompetent and irrelevant evidence, when carefully scrutinized, and, if this be true, then there would be no reason for requiring a specific objection in any case. But there is reason for requiring the particular objections to be stated with reasonable certainty, for in the hurry of a trial, it cannot be expected that particular objections will occur to the judge, although if stated he would readily perceive their force, counsel, who are presumed to have studied the case, ought to be able to state the particular objections, and if none are stated, it is fair to assume that none exist, since an objection that cannot be particularly stated is not worth the making.” The rule is a proper rule. It is not burdensome to the competent lawyer, is but reasonable fairness to his adversary, and is just to the court.

The piston in question was made of cast iron, circular in shape, about fourteen inches in diameter and was hollow. A rod ran through the center of the pis■ton. This rod was about six or eight feet long and had become so worn that it was necessary to take it out and put in a new one, and it was tight and hard to get -out. The method finally resorted to was that stated in the declaration and the result was an explosion as there stated.

Appellee produced a number of expert witnesses who were permitted by the court to testify. This class of evidence properly based and properly limited would be proper with respect to the questions, whether the explosion resulted from the presence of water and vapor in the hollow of the piston; whether appellant would, by the exercise of reasonable skill and care, have known that the piston probably contained water or vapor, and whether the method adopted for removing the rod was a reasonably safe method. .

We will consider in detail the few exceptions based on specific objections only, and inasmuch as the case may be tried again, will add some general discussion as to the many exceptions based on general objections. The witness Cook, in one of his answers, stated , that the iron often becomes very porous, so that you . can run a pin into it a quarter or half an inch. Appellant moved to exclude this answer, because it was not shown that the piston in question was in that condition. Under the particular facts of this case,, this motion should have been granted. The entire testimony of the witnesses Bruner and Kirkpatrick is challenged •on the ground that these witnesses were not experts. This challenge is not well sustained. .We think the evidence shows that each of them was sufficiently qualified to make their testimony admissible. The testimony of the witness Mallet is challenged on the same ground, and we are of opinion that he was not sufficiently qualified and should not have been allowed to testify as an expert. The witness Kirkpatrick was asked, “What is the usual and customary method of removing a piston head from a rod?” This was objected to on the ground that “it did not tend to prove any issue in the. case,” and counsel called the attention of the court to issues in the case. We think the objection should have been sustained. The primary question was whether the particular method adopted in this particular case was a reasonably safe method under the circumstances. It is true that when evidence has been introduced tending to prove that the method adopted is not a reasonably safe method, it may be followed up by an inquiry as to whether there is any reasonably safe method generally known and in general use. This, it will be observed, is quite different from the question objected to. As the question objected to presented the case to the jury, it required appellant to adopt the usual and cnstomary method, without reference to the question of whether the method it did adopt was reasonably safe or not; and without reference to the fact of whether the usual and customary method was safe or unsafe. All that the law required of appellant with respect to .the method adopted in doing the work was that it exercise reasonable skill and care to adopt a reasonably safe method. The witness Kirkpatrick was also asked: “Mow, in view of your experience with hollow pistons, where there is a piston of the kind I have already described to you, where that was placed in a blacksmith’s fire, and within from three to five minutes after it was placed in there, there was an explosion and a piece on the flat side of the piston was blown out the size of an ordinary machinist’s hand, what would you say was the cause of the explosion?” This question was objected to on the ground “that it was not a matter subject to expert testimony.” This objection was properly overruled. Very little of the expert testimony objected to generally was properly based and in proper form. Some of the witnesses tell how they would do the work, others tell how it is done in other shops, and still others undertake to state the usual and customary method; in some cases the hypotheses are within the evidence, in other instances the answers are not responsive and contain vicious matter, one witness having been asked an improper question and in leading form, answered: “That is what any common sense man would do.” The scope of proper inquiry of this class of expert witness, in chief, is usually very narrow ; and the safety of a case depends often upon counsel keeping within the limit.

The physician who treated appellee for the injuries sustained by reason of the explosion complained of, testified, among other things, to the extent to which appellee had lost the power of vision, and said that in making the examination and tests he relied in part upon what appellee told him with respect to his ability to see certain objects at certain distances from his eyes. And in giving his testimony, this witness refreshed his recollection by reference to a memorandum which he held in his hand. Counsel objected to his being allowed to consult the memorandum, on the ground that it was not made on the day of the treatment, and on the further ground that the witness could not remember exactly when it was made. We think the court properly overruled this objection. The witness testified that he made' the memorandum himself, that he made it from his own memory, that at the time he made it he had the facts in his mind, and that the memorandum correctly states the facts as they were at the time. With reference to the time when he made it, he said: “I see so many cases, I cannot remember exactly when I made this memorandum.” “I don’t think I made that the same day I saw him. I think I made it sometime afterwards, I don’t know exactly how long.” This meets the requirements of the rule as we understand it. Counsel also moved to exclude this witness’s testimony with respect to appellee’s power of vision, on the ground that “his evidence is based on answers and information imparted to him by appellee himself.” Counsel cites C. & E. I. R. R. Co. v. Donworth, 203 Ill. 192, and Chicago Union Traction Co. v. Giese, 229 Ill. 260. In neither of the cases cited did the physician who testified ever treat the patient, or examine him for the purpose of treating him. In one case the physician who made the examination was employed to make it “for the purpose of giving testimony on the trial,” and in the other case the physicians were employed to make the examination “for the purpose of reporting to the patient’s attorneys, to enable them to determine upon taking the case,” and for the purpose of qualifying themselves to “testify as witnesses.” The evidence does not bring the case at bar under the rule applied in the cases cited. In this case the physician had treated appellee for the injuries caused by the explosion from the day of his injuries, and had not finally discharged him. The examination was made on the 26th of June, 1907, and not for the purpose of preparing a case or being a witness. The case was not commenced until August 15, 1907. And further, the witness was able to state from mere inspection substantially all that he did state that was of material value to appellee.

The court gave at the instance of appellee three long instructions, covering full three pages of the abstract, each more or less defective. In the first it is said that it was the duty of appellant to warn appellee of danger which he “would not be likely to discover by the use of ordinary care.” This duty would be better expressed in the words ordinarily employed for that purpose, viz.: which he “could not have discovered by the exercise of ordinary care.” The words “not be likely” to discover, appear to us to minimize the duty. And the instruction states the duty of appellant to warn appellee of danger “known or which should have been known to the defendant.” This duty is not fairly stated, it also would have been better stated in the ordinary form: “known or which by the exercise of reasonable skill and care would have been known to the defendant.” The expression was “not likely to discover” also appears in the second instruction. And in the second instruction the duty of appellant is stated in the words, was Imown to the machinist or “should have been known to him.” This would be more correctly stated as above suggested, by the use of the words: “or by the exercise of reasonable skill and care would have been known to him.” The third authorizes the jury to award damages for loss of capacity to earn money in the future. We do not find sufficient warrant in the evidence for that clause in the instructions.

Counsel complains of the action of the trial court in refusing three instructions asked on behalf of appellant. These instructions appear in the abstract as Nos. 16, 17 and 20. No. 16 was properly refused, the full substance of it is embraced in appellant’s given instruction No. 19. The 17th and 20th are substantially correct when applied to the particular issues and evidence in this case, and are material. They. should both have been given and are as follows:

17.. “In cases of this nature the mere fact of the accidént of itself alone is not any evidence of negligence on the part of the defendant, but before the plaintiff can recover, he must prove that the defendant was guilty of negligence, as charged in the declaration, and that this negligence was the cause of this explosion and injury to the plaintiff.”

20. “The court instructs you that it is alleged in each count of the plaintiff’s declaration that when the piston in question was placed in the fire, said piston had in it a quantity of water and vapor; and the declaration further avers that the fact of the existence of the water and the vapor in the piston was well known to the servant of defendant, or by the exercise of ordinary care should have been Imown to him; and it further alleges that this fact of the water and vapor being in the piston was unknown to the plaintiff, and by the exercise of ordinary care was not discoverable by Mm.

“The court further instructs you that these allegations are material ones, and if you find from the evidence that the defendant or its servant did not know, or by the exercise of reasonable care could not have known that water or vapor was in the piston, then you are instructed that the plaintiff could not recover in this case.”

For the errors above noted the judgment of the CircMt Court is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Creighton

license: Public Domain

text:
    Joe Montelione, Appellee, v. Republic Iron & Steel Company, Appellant.
    Employer and employe—when relation established. The relation of employer and employe is established as between one who in good faith enters into a contract with another whom he supposes is acting as the agent of a corporation, which corporation has so conducted its business as to justify such supposition.
    Action commenced before justice of the peace. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    C. E. Pope, for appellant; Richard Jones, Jr., of counsel.
    Barthel & Klingel, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit by appellee against appellant, commenced before a justice of the peace in St. Clair county to recover wages for eleven days and four hours’ labor performed by appellee. From the justice’s judgment an appeal was prosecuted to the Circuit Court where the case was tried de novo, by a jury, resulting in a verdict and judgment in favor of appellee for $19.45.

Appellant was engaged in the operation of a large rolling mill plant, and in the prosecution of its business employed a large number of men in various capacities, in the various departments of its plant. Among the men employed was one J. H. Kuntz, who had charge of loading cinders and other impurities taken from the various furnaces and of certain scrap iron, and there were seven or eight men engaged in that work under his direction. That work was performed within the enclosure of the plant, and Kuntz was so employed from the first of February to the middle of April. During this time Kuntz put appellee to work at assisting to load the cinders and scrap, and after he had worked eleven days and four hours he was discharged, without being paid any part of his wages.

Appellee had never worked at appellant’s plant before and knew nothing of its methods of conducting its business. His account of his employment and service is wholly undisputed. He says he was looking around East St.' Louis, and Kuntz asked him if he was “looking for a job” and he said “yes,” and Kuntz said “you go to work for the Steel Company,” he said “how about the wages'?” Kuntz said“$1.75a day and pay every two weeks.” In pursuance of this he- went to appellant’s mill next morning and Kuntz “was boss over him and told him what to do,” and he worked there under Kuntz’s direction until he was discharged.

Appellant contends that it is not liable for the wages of appellee, because it had a contract with Kuntz .whereby he was to load the cinders • and scrap for a specified price per ton and furnish and pay his own men, and with respect to this feature of the ease, appellant’s manager testified in substance as follows: “He had a contract with the Republic Iron & Steel Company for loading cinders; it was a verbal contract. It was made with me and under this contract he loaded cinders from the first of February until some time in April the same year. Under the contract we were to pay him so much a ton and he was to hire his own men and we had nothing whatever to do with them; I don’t know what he paid his men * * * Kuntz was to load cinders and a few cars of scrap that was in his way. There was some scrap unloaded on the cinders and in order to get at the cinders he loaded this scrap on flat cars and unloaded it. He had no other contract outside of that.” This testimony is undisputed, and it is quite clear that as between appellant and Kuntz, appellant was not bound to pay the men who worked under him.

The question is, can appellant under all the facts of this case, avail of its contract with Kuntz, to defeat the demand of appellee. We think the law applicable to this state of case may be expressed as follows: Where a company conducts its business in such manner as to suffer such appearances to exist and allows its manager and agents to so act as to give one employed to do work in connection with the carrying on of its business, reason to believe that he is employed by the company and where such one in good faith does so believe, then he has a right to regard the company as his employer and to hold it bound as such. Gowen Marble Company v. Robert Tarrant, 73 Ill. 608. And to the same effect is Pardridge v. La Pries, 84 Ill. 51. The last cited case is in a number of respects like the case at bar. In that case the court says: “The evidence strongly preponderates to establish the fact that appellee understood he was employed by appellants through De Merz, and the circumstances are, we think, such, that if that was not the understanding of appellants, they should, on his entering their employment, have given him notice.”

We think the evidence clearly proves that appellee in the case at bar did in good faith believe that he was employed by appellant, and the manner in which appellant conducted its business gave him good reason to so believe. He knew nothing of the secret agreement between appellant and Kuntz, and Kuntz’s position, conduct and the character of work he was engaged at, were all such as to indicate that he was an ordinary boss or foreman over the men at work in that part of appellant’s plant.

Counsel for appellant state that no ruling of the court with respect to instructions is complained of, and therefore the instructions are not set out in the abstract; and that “counsel will not extend this argument by pointing out in detail” errors made by the court in the admission and rejection of evidence. Counsel’s only contention is, that the evidence does not support the verdict, and the only authority cited in support of his contention is the case of St. L. & K. C. R. R. Co. v. Olive, 40 Ill. App. 82. Olive, the appellee in that case, was a physician and surgeon and was called by a conductor of one of appellant’s trains to treat another employe, who by reason of some accident on the train had been injured. At the time the conductor requested the doctor to perform the services, he told the doctor that the company would pay for his services. The court in that case simply holds, in effect, that the doctor did not perform any service for the company, nor any services which the company was under any duty to perform or to pay any one for performing, and that it was not within the scope or apparent scope of the conductor’s authority to make such a contract on behalf of the company. In the case at bar the work done directly pertained to the carrying forward of appellant’s ordinary business, was done within the enclosure of its plant, under the eyes of its principals or vice principals, and as above stated; to all appearances the man in charge was an ordinary boss or foreman. The case at bar differs in all material respects from the case cited by counsel, and from the case of Sloan v. C., C., C. & St. L. Ry. Co., 140 Ill. App. 31. In that case the Widell-Finley Co. was an independent construction contractor, upon a certain job of concrete work. Sloan was employed by the Widell-Finley Co., was told he was working for the Widell-Finley Co., never understood that he was employed by the railroad company, and the Widell-Finley Co. paid him his wages for all the time he was employed, except six days—the last six.

We find no error in the record. The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    International Text Book Company, Appellant, v. William Busick, Appellee.
    Appeals and errors—when pro forma reversal will he awarded. Failure of an appellee to file a brief pursuant to rule of court justifies a pro forma reversal.
    Action commenced before justice of the peace. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the February term, 1908.
    Reversed and remanded.
    Opinion filed September 12, 1908.
    Hall & Dane and Eugene W. Miller, for appellant; David C. Harrington, of counsel.
    No briefs filed by appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit commenced before a justice of the peace of St. Clair county, by appellant against appellee, to recover a balance of $31.75, claimed by appellant to be due it from appellee upon a contract for a scholarship in the draftsmen’s course of instruction, in appellant’s correspondence schools, and for a drawing outfit. From the judgment rendered in the justice’s court the case was appealed to the Circuit Court, where it was. tried de novo, resulting in a verdict and judgment in favor of appellee. From this judgment appellant in due form prosecuted an appeal to this court, assigned errors upon the record, and filed abstract and brief in accordance with the requirements of the law and the rules of this court.

Appellee has filed no brief, and has wholly failed to comply with the law and the rules of this court with respect thereto.

The judgment of the Circuit Court is reversed under rule 27, and the cause remanded.

Reversed and remanded.


text:
    Johanna Andrewzewski, Appellee, v. The Gallatin Coal & Coke Company, Appellant.
    1. Evidence—-when general objection insufficient. A general objection is not sufficient where the nature of the question is such that it does not clearly appear “at first blush” to be improper.
    2. Instbuctions—when invade province of jury. An instruction invades the province of the jury by declaring a mere evidentiary fact to be conclusive of the issue.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Washington county; the Hon. Charles T. Moore, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    L. R. Brokaw and J. A. Watts, for appellant.
    Vernor & Vernor and Webb & Webb, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This case was before this court on appeal by appellant at a former term, and at the August term, 1907, we filed an opinion reversing the judgment of the Circuit Court for certain errors of law clearly stated in that opinion. 137 Ill. App. 1.

The case comes back to us on the present appeal, purged of the errors found in the former record. A sufficient statement of the general facts of the case appears in the f ormer opinion. We do not deem it necessary to re-state the case, and we think there are but three questions raised on the present appeal that demand discussion here.

Counsel insist that on the last trial the court erred in permitting certain witnesses to answer certain questions and to give certain testimony over their objections. Upon an examination of their abstract of the evidence we do not discover any material error in the respects complained of, but the state of the record, as they disclose it, is such that if error might now be pointed out, appellant is not in position to avail of it. All the objections made to any part of the evidence complained of, were the most general objections. “Defendant objected.” “Objected to.” “Defendant renewed objection.” “Defendant requested the court to exclude the foregoing answer.” The above quoted, and nothing more, appears in the abstract with respect to the objections and motions to exclude, other than that the court overruled the objections, and that the defendant excepted to the rulings of the court.

We discussed this question at some length in an opinion filed at the present term of this court, in the case of McCabe v. Swift & Co., ante, page 404. This state of record so frequently appears that we feel justified in repeating here what we said in that case: “The rule with respect to the sufficiency of objections is, that general objections are not sufficient where the nature of the question is such that it will not clearly appear ‘at first blush’ to be improper. In Ohio and Mississippi Railway Co. v. Walker, 113 Ind. 196 (200), the court, in an opinion by Mr. Justice Elliott, states the rule and the reasons for it, as follows: ‘Objections to evidence to be of any avail must be reasonably specific. The particular objection must be fairly stated. It is not enough to state that the evidence is incompetent, or that it is immaterial and irrelevant. This much is implied in the bare 'fact of objecting. If it be unnecessary to state the. particular objection as well say, ‘We object’ and be done with it,.since a mere general objection amounts to nothing more, for it is simply tantamount to an ■ expression of the fact that counsel do object. It is no answer to the proposition asserted by the authorities to say that the evidence itself may reveal the objection, for this may be said of all incompetent and irrelevant evidence, when carefully scrutinized, and, if this be true, then there would be no reason for requiring a specific objection in any case. But there is reason for requiring the particular objections to be stated with reasonable certainty, for, in the hurry of a trial, it cannot be expected that particular objections will occur to the judge, although if stated he would readily perceive their force. Counsel, who are presumed to have studied the case, ought to be able to state the particular objections, and if none are stated, it is fair to assume that none exist, since an objection that cannot be particularly stated is not worth the making.’ ” The fule is a proper rule. It is not burdensome to the competent lawyer, it is but reasonable fairness to his adversary, and it is just to the court.

Counsel complain of the action of the trial court in the giving of one instruction on behalf of appellee and in refusing two instructions asked by appellant. The instruction given on behalf of appellee, of which complaint is made, is an instruction in the usual form employed in such cases, telling the jury that contributory, negligence on the part of the plaintiff will not bar the action. It states the law applicable to that feature of this class of cases correctly. The instruction does not undertake to sum up the requisities for a recovery and authorize a verdict—it simply states the law as to that particular feature of the case. In the light of the evidence and the whole series of instructions, we think it is not possible that the jury was, or could have been, misled by this instruction.

As to the two refused instructions it is proper to note that the declaration in this case charges a wilful violation of the Mines and Miners Act in a number of respects, among them, in allowing the deceased “to enter the mine to work therein,” before all conditions were “made safe.” Appellant contended and attempted to prove that the deceased, who was a “coal digger,” entered the mine on the occasion of his injury, “under the direction of the mine manager-.” Appellant presented to the court three instructions, bearing upon that question. One of them was given and the other two were refused. The one given was as follows:

“The court instructs the jury, that the law relating to the duty of mine owners, under which this action is brought, which makes the mine owner liable for damages sustained as a result of the wilful violation of the act as explained in these instructions also provides among other things as follows: ‘No one shall be allowed to enter the mine to work therein, except under the direction of the mine manager until all conditions shall have been made safe’ and the jury are instructed that if you believe from the evidence that the deceased did on the morning of the day of his death enter said mine and room under the direction of the mine manager of said mine, then the defendant is not liable in this action.”

This instruction put appellant’s position fairly before the jury, to the extent that appellant has no grounds for complaint. The two refused ones are denominated “4” and “6.” The one that was given might properly have been refused under the issues and evidence in this case, because it authorizes a verdict in favor of appellant upon the one issue, whereas under • the declaration and evidence in this case there was wilful violations -of the act both charged and proved other than that of allowing the deceased “to enter the mine to work therein,” before all conditions were “made safe,” and it was at least within the province of the jury to determine whether or not one of these was not the proximate cause of his injury and death, wholly irrespective of whether he was rightfully or wrongfully permitted to enter. With respect to the refused one, designated “4,” it not only contains the vice of the given one above quoted, but it invades the province of the jury by declaring a mere evidentiary fact to be conclusive of the issue, and this is also true of the one denominated “6.” Under the whole evidence in this case, we think the jury was abundantly warranted in finding that the deceased did not enter either the mine or the room in which he was killed, “under the direction of the mine manager,” within the meaning of the statute, and the giving of any form of instruction taking that question from the jury, or in any manner minifying their power or duty with respect to it, would have been improper. And in any view of the case the court was not required to give more than one instruction bearing upon one point in the case.

We find no reversible error in this record. The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Henry J. Schneider, Appellant, v. Belleville Deep Well Water Company, Appellee.

      Contract—when does not establish novation. In order that a third party may he hound to pay a debt of another who has given an order upon him for the payment thereof, it must appear that such third party has accepted such order or promised to pay such debt; the making of a payment upon account of such debt is not of itself sufficient to establish a novation.
    Action commenced before justice of the peace. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    James O. Miller, for appellant.

      Charles A. Karch and L. N. Perrin, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit commenced by appellant against appellee, before a justice of the peace of St. Clair county, to recover upon an order given to appellant by one O. C. Wilson, on appellee. From the judgment of the justice of the peace the case was appealed to the Circuit Court of St. Clair county, where trial de novo by jury was entered upon. At the close of appellant’s evidence the trial court excluded all the evidence and directed the jury to return a verdict finding the issues for the defendant. The jury returned a verdict as directed and the court rendered judgment thereon.

The 0. Gr. Wilson above mentioned had some sort of a contract with appellee whereby he had undertaken to bore two wells for it, designated as wells No. 27 and 28; appellant had furnished coal to ■ the amount of $137.15, to Wilson, which was used by him in connection with his operations in boring well No. 27. When appellant presented his bill to Wilson, Wilson said to him: “As soon as the wells are drilled then I get my money and you will get yours; ’ ’ and on that occasion gave him an order on appellee as follows: “Belle-ville, Illinois, January 4, 1907, Deep Well Water Co.: Please pay Mr. Henry Schneider for the coal used on wells 27 and 28, when the wells are completed, and charge to my account. O. G-. Wilson.”

Appellant presented this order to a Mr. Slocumb who was acting as superintendent for appellee, and Slocumb said “he would take it over to the St. Louis office, that if they accepted it, it would be all right.” The order was never taken over to the St. Louis office, and was never presented to the company anywhere other than to Slocumb as above rioted. Some days after the order was presented to Slocumb, appellant received a communication over the ’phone from some one at the water-works office, to “come and get his money.” He went down to the office in response to the call and a clerk there paid him “fifty dollars on the bill,” and the clerk said, “They must have accepted vour order, otherwise they would not pay you this money.” Appellant never delivered any more coal after obtaining the order from Wilson; and Wilson never bored well 28, nor commenced to bore it;' there is no evidence that appellee owed Wilson anything more on the transaction mentioned in the order than the fifty dollars paid thereon to appellant; there is no evidence tending to prove an unqualified acceptance of the order by appellee, or promise on its part to pay the full amount of it, without regard to its then present or future relations to Wilson, with respect to the transaction on which the order was based, and further, the order on its face specifies that it is to be paid “when the wells are completed,” and' the wells were never completed.

It is not claimed, that Slocumb accepted the' order, nor that the clerk at the water-works office- accepted it. The undisputed evidence-is that it was never presented at the company’s office over in St.- Louis, and what the clerk at the water-works office said, was a mere unwarranted inference of his own, and was not binding upon appellee. Under the undisputed facts of this case the payment of the fifty dollars- on appellant’s bill, in response to the order, neither proves nor tends to prove such acceptance of it, or such unqualified promise to pay the whole bill as to make it the debt of appellee.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Phillip Kollehner et al., Plaintiffs in Error, v. R. C. Brown, Defendant in Error.

      Practice—when error to dismiss hill of complaint upon sustaining demurrer. It is error to dismiss a bill of complaint upon sustaining a demurrer which successfully challenges only an incidental portion of the relief prayed.
    Bill in chancery. Error to the Circuit Court of Union county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the February term, 1908.
    Reversed and remanded.
    Opinion filed September 12, 1908.
    W. D. Lyerle, for plaintiffs in error.
    P. E. Hileman, for defendant in error.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a bill in chancery to foreclose a real estate mortgage, in the Circuit Court of Union county, by plaintiffs in error against defendant in error. The bill was the usual bill in such cases with the usual prayer for foreclosure and for general relief. The prayer contained a clause asking for costs and for “a reasonable solicitor’s fee.”

To this bill defendant in error. filed a demurrer, specifying a number of distinct causes, among them the following: “And for further cause of demurrer this defendant shows to the court, as to the prayer a decree for a reasonable solicitor’s fee, that the bill shows that there is no provision in said mortgage or note for such fee.”

The court sustained the demurrer as evidenced by an order in language as follows: “And the court being fully advised in the premises, doth sustain the said demurrer.” Plaintiffs in error did not ask leave to amend, but announced in open court that they elected to' stand by their bill. Whereupon the court decreed that the bill be dismissed and that the plaintiffs in error pay the costs. This disposition of the case is assigned as error.

While the court does not state upon what ground the demurrer was sustained, nor which one or ones of the various specified causes of demurrer was sustained, it is, however, clearly apparent from an inspection of the bill, that there could have been no other ground or cause except the one above quoted; and we understand counsel for defendant in error to concede this to be the case. He says: “The only point in dispute in this case was as to solicitor’s fee.”

Counsel for plaintiffs in error contend that the question raised by the clause of the demurrer referred to, could be determined only at the final hearing of the case. There is but little authority to be found bearing directly upon the question. As tending to support counsel’s contention, such expressions as the following may be found in some texts and in a number of opinions: “A demurrer will not be sustained because a prayer is too ample or exacting in the relief sought, but the proper relief can be accorded and limited by the decree.” “A demurrer to a prayer for incidental relief is not admissible, for the defendant may avail himself of the objection at the hearing, with every possible advantage that he could obtain by a demurrer.” “The fact that a complainant does not ask for the proper relief, or asks for inconsistent relief, is not ground of demurrer. ’ ’

The most direct and satisfactory, authorities we have found are Whitbeck v. Edgar, 2 Barbour’s Chancery Reports, 106, and The Western Insurance Company v. The Eagle Fire Insurance Company, 1 Paige’s Chancery Reports, 284. In Whitbeck’s case the court held that “a demurrer to the whole bill does not lie because the prayer for relief is too broad. The proper course in such case, is to demur to the part of the relief specifically prayed for, to which the complainant is not entitled upon the case made by his bill.” And in the Western Insurance Company’s case the court says: “Where the complainant makes a specific claim to particular relief, which he cannot under any circumstances he entitled to at the hearing, perhaps the defendant may object thereto by way of demurrer, although there is also a prayer for general or other proper relief in the bill.” And the court in further discussing the same question says: “If such a demurrer be allowable in any case, it ought not to be encouraged, as the defendant may avail himself of the objection at the hearing, with every possible advantage which he could obtain .by a demurrer. And the court ought not thus to be called on preliminarily to examine the case in all its bearings, for the purpose of determining what relief the complainant may be entitled to at the hearing, when all the facts and circumstances are fully developed.”

While such demurrers are not looked upon with favor, we think them permissible in clearly proper cases, and the case at bar appears to us to be of that class. We are therefore of opinion that the Circuit Court did not err in sustaining the clause of the demurrer above quoted but it does not necessarily follow, that the order dismissing the bill was not error.

The clause of the demurrer sustained was neither a general demurrer nor a special demurrer, in the sense these terms are ordinarily used. It was in no sense a demurrer to the whole bill, nor a demurrer in any material respect affecting the bill as a whole. It was of that class denominated “demurrer to part of a bill.” Such demurrers recognize the sufficiency of the bill as a whole, both in substance and in form. They are availed of for the purpose of testing some particular feature of a bill that cannot be properly reached by either a general demurrer or the usual special demurrer. “When the defendant demurs to part of a bill he must plead to or answer the rest.” Beach on Modern Equity Practice, Vol. 1, sec. 241.

The effect of sustaining the clause of defendant’s demurrer here under consideration was to eliminate from the prayer of the hill the. part asking for the allowance of a solicitor’s fee. It left intact a perfect bill stating a good and meritorions cause of action, with an ample and proper prayer for substantial relief. The snstaining of this demurrer did not impose upon the complainants any duty to amend, nor did it relieve the defendant of the duty to answer the whole bill, except that part covered by his limited demurrer. While it is true complainants might have asked and obtained leave to amend upon the sustaining of the demurrer, had they so desired, still they could not be rightfully required to do so. They had a right to stand by their bill as it remained after the obnoxious part.had been eliminated by the demurrer, and to insist upon having due and proper relief thereunder.

We have discussed the case so far upon the assumption that the. Circuit Court sustained only the limited demurrer to the part of the prayer of the bill asking for the.allowance of a solicitor’s fee. .If this be true, the court erred only in dismissing the bill, and decreeing that complainants pay the costs. If however the court sustained other than that demurrer, as the state of the record indicates to be the fact, then the court erred in that also.

The decree of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Lucy C. Zetsche, Administratrix, Appellee, v. Chicago, Peoria & St. Louis Railway Company, Appellant.
    This case is controlled by the decision in C., P. & St. L. Ry. Co. v. Zetsche, 135 Ill. App. 622.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.

      Wilson, Warren & Child and C. E. Pope, for appellant.
    F. C. Smith and M. Millard, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the City Court of East St. Louis, by appellee against appellant, to recover damages sustained by reason of the death of appellee’s intestate, alleged to have been caused by negligence on the part of appellant in the operation of a “cut” or train of cars over its railroad, at a public highway crossing. Trial by jury. Verdict and judgment in favor of appellee for $6,500.

The declaration consists of three counts. The first charges, that while the intestate was in the act of crossing a public highway, appellant negligently ran a train of freight cars against him, thereby causing his death. 'The second charges, that appellant failed to continuously ring a bell or sound a whistle for a distance of eighty rods, as required by statute. And the third charges failure to have a brakeman or lookout stationed upon the end of the approaching train.

On the occasion of intestate’s injury he was driving an oil tank wagon, with canvas-covered top over the seat, along a public highway approaching appellant’s railroad track from the west, and while crossing the track was struck by a ‘ ‘ cut of cars ’ ’ backing south, receiving .injuries from which he died. The "cut” or train which struck him consisted of ten loaded coal cars and one empty, being pushed south from the Madison Yards, about a mile and a half north of the crossing. “He was struck by the south end of a coal car in a train being pushed from the north towards the south. ’ ’

This case was before this court at a former term. In the former record we found material error in the giving of an instruction on behalf of appellee; we also found that the damages assessed upon that- trial, $10,000, were excessive; and we felt, and expressed in onr opinion, grave doubts as to the sufficiency of the evidence with respect to the question of due care and caution on the part of the intestate, at the time and on the occasion of his injury. We did not, however, find an absence of any evidence or reasonable inference in favor of appellee with respect to that question—we found and held, only, that the state of the evidence bearing pro and con upon that issue was such as to entitle appellant to a new trial; and so we reversed the judgment and remanded the cause for a new trial. We found the record on the former appeal substantially free from error except as above noted. See C., P. & St. L. Ry. Co. v. Zetsche, 135 Ill. App. 622.

Counsel for appellant devote the principal part of their extensive and able brief to their contention that the trial court erred in denying their motions to direct-the jury to return a verdict in favor of appellant, and to their contention that this court should reverse the judgment without remanding. We have read the record and studied this case with great care, this time as well as on the former appeal, and it is clear to us that this is not a case that can be properly disposed of upon the theory that appellee has failed to make such a case as to entitle her to have the judgment of a jury upon it.

The present record comes to us purged of all the errors found in the previous one, and we do not find that any new errors have intervened. And further, we find that appellee’s case is not only strengthened by a second verdict in her favor, but it is also' strengthened by additional evidence. We are of opinion that upon the whole cáse the judgment of the City Court of East St. Louis should be affirmed.

Affirmed.


text:
    Charles Ford, Appellee, v. Coal Belt Railway Company, Appellant.
    1. Master and servant—what essential to establish relation of fellow-servants. Employment by a common master is essential to the existence of the relation of fellow-servants.
    2. Instructions—when upon right of recovery proper. An instruction is proper which in effect tells the jury that if they find that the plaintiff has proved his case, as stated in his declaration by a preponderance of the evidence, then he is entitled to recover.
    3. Instructions—when upon ordinary care proper. An instruction is proper which in effect tells the jury that the care and caution which the law requires that a person should exercise for his own safety on the occasion of an injury is that of ordinary care under all the circumstances shown by the evidence.
    4. Instructions-—when upon credibility of witnesses erroneous. An instruction upon the subject of the credibility of witnesses as follows is erroneous in the employment of the several words and phrases italicized:
    “That the testimony of one credible witness may be entitled to more weight than the testimony of many others, if as to those other witnesses you have reason to believe and do believe from the evidence and all the facts before you that such other witnesses have knowingly and willingly testified falsely upon any material question in issue in this case, and are not corroborated by other credible witnesses or by circumstances proved in the case.”
    Action in case for personal injuries. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the February term, 1908.
    Reversed and remanded.
    Opinion filed September 12, 1908.
    W. H. Warder and Forman & Whitnel, for appellant.
    Denison & Spiller, Hartwell & White and Rufus Neely, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the Circuit Court of Williamson county, by appellee against appellant, to recover for a personal injury alleged to have been caused by the negligence of appellant. Trial by jury. Verdict and judgment in .favor of appellee for $8,500.

The declaration upon which the case was tried consisted of three counts, differing somewhat in detail and form of statement. The substance of the counts, we think, may be stated as follows’: That on the 2nd day of December, 1906, and for a long time prior thereto, the Coal Belt Electric Bailway Company was possessed of and operating a line of electric railroad extending from Marion to Carterville and Herrin; that on said date and for a long time prior thereto, appellant, the Coal Belt Railway Company, had been operating its steam engines and trains over certain of the tracks of the Coal Belt Electric Bailway Company in the transportation of coal and other freight, with the knowledge and consent of the Coal Belt Electric Bailway Company; that it was the prevailing practice of the two companies in the joint use of the tracks of the Coal. Belt Electric Railway Company, over which appellant operated its steam engines and trains, that the electric car or steam engine first reaching a siding where they were expected to pass each other, would go upon the siding and close the switch so that the other would have a clear track upon which to pass; that on said date appellee was a motorman .in the service of the .Coal Belt Electric Railway Company driving one of its cars, with a large number of passengers aboard, over its tracks near a certain siding known as “Dounnihoo Switch” where he was to pass one of appellant’s engines and train; that appellant’s engine having reached the siding first, went upon it for'the purpose of allowing the car which appellee was driving to pass, and in doing so negligently and carelessly failed to keep the switch closed so as to give appellee a clear track; that by reason of such negligence on the part of appellant the car of the Coal Belt Electric Railway Company, which appellee was' driving, ran against appellant’s engine with such force as to greatly injure appellee in bis head and shoulder, and so breaking and crushing his leg as to render amputation of it necessary; and that appellee was in the exercise of ordinary care and caution for his own safety.

The Coal Belt Electric Railway Company in whose service appellee claims to have been engaged at the time of his injury, and appellant, the Coal Belt Railway Company, were separate and distinct corporations. The former was incorporated in the year 1901, and was authorized to “build, equip, maintain and operate a system of street railways through the streets of the municipalities of Marion, Carterville, Herrin, Spillertown and Johnston City, and connecting said municipalities with each other and with the adjacent settlements, mines, factories, and other industrial enterprises.” * * * The latter was incorporated in the year 1903, and was authorized “to construct a railway from the Ohio river through the counties of Pope, Hardin, Saline and Williamson.”

The Coal Belt Electric Railway Company owned the track and right of way through and between the municipalities of Marion, Carterville and Herrin, and operated electric cars thereon. Under some arrangement or understanding between the two companies, the Coal Belt Railway Company was permitted to use certain portions of the track of the Coal Belt Electric Railway Company, outside of the limits of the municipalities named, for the purpose of hauling coal and other freight thereon with steam engines and cars. The two companies had the same president and same general manager.

The collision in which appellee was injured occurred at a siding called ¡Dounnihoo Switch. Appellant had run one of its engines off of the main track of the Coal Belt Electric Railway Company onto the switch, for the purpose of allowing the approaching electric car driven by appellee to pass. As the electric car approached the siding, when somewhat less than a half mile away, appellee observed appellant’s steam engine and blew his whistle four times to attract the attention of the parties in charge of the engine, and to ascertain whether or not the main line was clear. He received a signal called a “high ball” from one of the switchmen of the engine crew, indicating that everything was all right and that the main track was clear. Appellee answered the “high ball” with two whistles to inform the engine crew that he had seen their signal and was coming ahead. The car was being driven at a rate of speed of about twenty miles per hour and the switch target was'properly set to allow the electric car to pass on the main track, and was plainly visible from the time appellee first saw the engine. As the car approached the switch, when within forty to sixty feet of the switch target, one of the engine crew switch-men suddenly and without any kind of notice or warning threw the switch the wrong way so as to make the electric car take the siding instead of remaining on the main track. Appellee saw the switch thrown, exclaimed “the switch is thrown wrong,” “threw off the power and applied the air as quick as he could,” and did all he could under the circumstances to stop the car, but it crashed into the engine, wrecking the car, knocking appellee senseless, injuring his right shoulder and other parts of his body, and so breaking and crushing his left leg as to render amputation necessary.

It is conceded that the act of the engine crew switch-man in throwing the switch the wrong way was negligence; but counsel for appellant insist that appellee was also guilty of negligence which contributed to his injury. This question was properly and fairly submitted to the jury, and we think the state of the evidence is such as to make their finding conclusive as to that issue. ■£; .

Counsel for appellant contended in the.trial court, and insist here, that appellee was not in the service of the Coal Belt Electric Railway as stated in his declaration, but that appellant was operating both railways as one entire system, and that instead of being the servant of the Coal Belt Electric Railway Company, he was in fact the servant of appellant.

Upon this question we find that the evidence strongly preponderates in favor of appellee. It appears to us from the whole evidence that there is no substantial foundation for such claim.

Appellant asks this court to reverse the judgment of the trial court on the theory and claim, that appellee and appellant’s switchman who threw the switch, were fellow-servants. We think the fellow-servant rule is not properly involved in any phase of this case. The declaration charged that appellee was in the service of a certain, third party, and that while in- the discharge of his duties in the service of his master, with due care and caution for his own safety, appellant through its servants was guilty of negligence which injured him. Not being servants of the same master, the relation of fellow-servant could not exist between them. It is true that appellant asked and obtained from the court a line of instructions stating the law with respect to fellow-servants. If we assume that these instructions were based upon the evidence given by appellant for the purpose of trying to prove that appellee was in its service, as a means of contradicting or tending to disprove the allegation in appellee’s declaration that he was in the service of the Coal Belt Electric Railway Company, and if we assume that they could be properly so based without an amendment of the declaration, then appellant is foreclosed upon that issue by the verdict of the jury. The issue could not have been so raised in this case, as to warrant the court, under the evidence, in holding that appellee and appellant’s switchman were on that occasion “fellow-servants, as matter of law.”

Certain rulings of the trial court with respect to giving and refusing of instructions are challenged and urged as grounds for reversal. The court gave at the instance of appellee three instructions designated 1, 2 and 3. These instructions were based upon the three counts of the declaration, respectively, and in each of them is summed up all the material requisites to a recovery under the count upon which it is based, not one essential element being omitted. These instructions, in effect, simply told the jury that if they found that appellee had proved his case as stated in his declaration by a preponderance of the evidence, then he was entitled to recover. An instruction of this character, based upon a state of pleading and evidence such as is disclosed in this record, is not error. In C. & A. R. R. Co. v. Harrington, 192 Ill. 9 (24), the court says: “The instruction is based upon the particular hypothesis or theory contended for by the appellee, and summarizes the elements necessary to a recovery upon that theory without omitting any essential matter. The rule, that an instruction is erroneous which sums up all * * * the facts which the evidence tends to prove on one side, and omits the facts on the other side, does not apply to an instruction, which merely fails to embody evidence, tending to establish a distinct antagonistic theory. We have said: ‘All the law requires is that an instruction, based upon some particular hypothesis warranted by the evidence, which undertakes to summarize the elements in the case essential to a recovery upon that theory, must not omit any essential matter.’ The above holding and statement of the law, applicable to such instructions, is quoted and approved in the later case of I. C. R. R. Co. v. Byrne, 205 Ill. 9 (20-21), and again in Dunn v. Crichfield, 214 Ill. 292 (299-300).

The fourth instruction is asserted by counsel to he erroneous. No improper statement in it as to the law is pointed out. The contention is that it is misleading. It does not so appear to us. As we understand the instruction, it told the jury neither more nor less, in substance and effect, than that the care and caution which the law requires that appellee should have exercised for his own safety on the occasion of his injury, was that of ordinary care under all the circumstances shown by the evidence.' We think the jury could not in any state of case have been misled as to the law by the language used in that instruction, especially in the light of three instructions given on behalf of appellant bearing directly upon that question and emphasizing every feature of it favorable to appellant.

It is contended that the seventh instruction given on behalf of appellee is erroneous, and counsel say it has been condemned in Keller v. Hansen, 14 Ill. App. 640; Johnson v. Farrell, 215 Ill. 542, and in Tri-City Ry. Co. v. Gould, 217 Ill. 317. The instruction is as follows :

“7. That the testimony of one credible witness may be entitled to more weight than the testimony of many others, if as to those other witnesses you have reason to believe and do believe from the evidence and all the facts before you that such other witnesses have knowingly and willingly testified falsely upon any material question in issue in this case, and are not corroborated by other credible witnesses or by circumstances proved in the case.”

Counsel for appellee say that the word “willingly” is a clerical error made in copying, that the word was “wilfully.” They further say that the instruction in this case contains all the matter necessary to meet the requirements of the cases relied upon by counsel for appellant—that this instruction contains the requisite matter not appearing in the condemned instructions. This is true only in part. The instruction in this case contains the words “credible witnesses,” instead of credible evidence. This is material and fatal to the instruction. It is one of the grounds upon which the instruction in Johnson v. Farrell, supra, was directly condemned. The court said: “The instruction is also faulty in limiting the corroboration to ‘other credible witnesses,’ instead of other credible evidence. There may have been credible evidence, corroborating the witness, other than the oral testimony of another witness. In other words, the proper test was whether there was a corroboration by credible evidence whether documentary or otherwise and not necessarily by a credible witness (or witnesses) merely. ”

Counsel for appellant asked the court to give to the jury an instruction as follows:

“11. You are instructed that the plaintiff must recover, if at all, on the allegations in his declaration, that there is no allegation in the declaration that plaintiff received injuries by jumping off the car, and in case you find from the evidence that the injuries received by Charles Ford were caused by his own act in jumping from the ear, when, in the exercise of reasonable care for his own safety, he could by the means provided have stopped the car, before it collided with the engine, then your verdict should be for the defendant."

■Counsel for appellee insist that this instruction was properly refused for want of any evidence upon which to base it. It is true that no witness testified that appellee did jump off the car, still, it cannot be said that there are no facts or circumstances in evidence tending to prove that fact. This instruction should have been given.

For the errors above noted the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Harry O. Whittington, Plaintiff in Error.
    1. Statute of Limitations—when does not run in criminal case. During the absence from the State of a defendant indicted for a criminal offense the Statute of Limitations does not run.
    2. Amendments and jeofails-—propriety of amendment of in
      formation in criminal case. If the Statute of Limitations has not run against the offense charged, it is proper for the court in its discretion to grant leave to amend the information.
    3. Seduction—what essential to sustain conviction for. In order to sustain a conviction for seduction it must appear beyond a reasonable doubt when all the evidence is fairly considered and weighed together, that the defendant accomplished his purpose by some artifice, promise, flattery, deception or the like.
    4. Instructions—must not ignore material issue. An instruction which undertakes to sum up all the elements necessary to a verdict of guilty must not ignore any material ground of defense.
    5. Instructions—when as to “reasonable doubt” erroneous. The expressions “convinces the guarded judgment” and “satisfies the mind to a reasonable certainty,” do not give the defendant accused of a criminal offense the benefit of the requirement of proof beyond a reasonable doubt.
    Criminal prosecution for seduction. Error to the County Court of Franklin county; the Hon. Thomas J. Myers, Judge, presiding.
    Heard in this court at the February term, 1908.
    Reversed and remanded.
    Opinion filed September 12, 1908.
    W. H. Hart, for plaintiff in error.
    W. P. Seeber, State’s Attorney, for defendant in error; W. C. Blair, of counsel,
   Mr. Justice Creighton

delivered the opinion of the court.

This was a criminal prosecution, by information, in the County Court of Franklin county, against plaintiff in error, upon a charge of seduction, under sec. 525 of the Criminal Code. The statute is as follows: Any person who shall seduce and obtain carnal knowledge of any unmarried female under the age of eighteen years, of previous chaste character, shall, on conviction, be punished by a fine of not less than one thousand dollars and not more than five thousand dollars or by imprisonment in the county jail not exceeding one year, or both such fine and imprisonment * * * but no conviction shall be had of such crime upon the testimony of the female unsupported by other evidence.” Trial by jury. Verdict finding plaintiff in error guilty as charged in the information. Judgment on the verdict, and a fine of $1,000 imposed upon plaintiff in error.

An information was filed in the County Court by the state’s attorney, on the 9th day of February, 1907, charging that the seduction took place November 1, 1905; on the 8th day of March, 1905, the state’s attorney, by leave of court, amended the information so as to make it state that the seduction took place on the first day of November, 1904, and averred “that since the commission of said crime the defendant has been beyond the limits of the state of Illinois.”

Counsel for plaintiff in error contend that the trial court erred in permitting the state’s attorney to amend the information, and in putting plaintiff in error upon trial upon the information as amended. Their position is, that as amended, the information shows on its face that the Statute of Limitations had run at the time the amendment was made. One vice of this position is that it assumes that the Statute of Limitations always runs within the specified period, whereas that is not always true, and one of the amendments to the information sets up a state of facts showing that it was not true in this case, that from the time of the alleged offense to his arrest, February 16, 1907, he was beyond the limits of the state of Illinois. In such case the statute did not begin to run until his return to the state, or if it should appear that it had begun to run before he left the state, it was arrested by his departure and suspended during his absence.

This was a criminal case, where the law requires that the guilt of the accused must be proved beyond a reasonable doubt, to warrant a conviction; and in this particular class of cases the statute provides that “no conviction shall be had upon the testimony of the female unsupported by other evidence.”

While we cannot agree with counsel that there is absolutely no evidence in this record tending to support the verdict, we do think that upon two most material questions the evidence is very slight. These are, as to the fact of the seduction within the statutory meaning of that term, and as to the absence of plaintiff in error from the state. We do not doubt but that plaintiff in error had sexual intercourse with the prosecuting witness and we think the evidence tends to prove that he was the father of her child, but these alone are not enough to make a case of seduction. In order to sustain a conviction for, the crime of seduction, it must appear beyond a reasonable doubt, when all the evidence is fairly considered and weighed together, that the defendant accomplished his purpose by some artifice, promise, flattery, deception or the like. Neary v. The People, 115 Ill. App. 157.

With reference to the absence of plaintiff in error from the state, the burden was on defendant in error to prove the fact as set up in the amended information, within the meaning of the statute, i e. “that he was not usually and publicly resident within this state,” during such portion of the time as would take the case from under the Statute of Limitations. Upon this material question the proper evidence is very slight and incomplete, and nowhere in the series of instructions given on behalf of defendant in error is this most material question mentioned, and in two of them, the 8th and the 9th, the court undertakes to sum up all that is requisite to a verdict of guilty. The failure to include this requisite in those two instructions was material error, and such error as could not be cured by any good instruction that may have been given on behalf of plaintiff in error, because of the repugnance. Where there is such repugnance it is not curable.

The first, fourth, tenth and twelfth instructions given on behalf of defendant in error, are all more or less defective and misleading. In the first, the expression “convinces the guarded judgment,” is used and no reference is made to the requirement of proof beyond a reasonable doubt. We do not think the expression “convinces the guarded judgment,” as that expression would he likely to be understood by a jury, is a fair equivalent for “believe beyond a reasonable doubt.” The fourth, assumes that confessions were proved. In the tenth, this expression is used, “satisfies the mind to a reasonable certainty;” this is not sufficient, it should be “beyond a reasonable doubt.” In the twelfth it is said, “it matters not what the character of the prosecuting witness is at the present time;” this should have been limited to her character for chastity.

For the errors above noted the judgment of the County Court is reversed and the causé remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Thomas Leach, Plaintiff in Error.

      Instructions—when modification of, in prosecution for Keeping gambling devices not improper. In a criminal prosecution for keeping gambling devices, it is not error to modify an instruction in form as follows by striking therefrom the words “for the purpose alleged in the information”:
    “The information in this case charges that the defendants kept certain gambling devices upon which money is staked, paid or played upon chance or upon the result of which action of said devices money or other valuable thing is staked, won or lost. Before the jury can convict the defendants of the crime as charged against them the evidence must show beyond a reasonable doubt that the defendants kept such devices, for the purposes alleged in the information, and unless the evidence has so shown beyond a reasonable doubt you should find them not guilty.”
    Criminal prosecution for keeping gaming devices. Error to the Circuit Court of Lawrence county; the Hon. John C. Maxwell, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    S. J. Gee, for plaintiff in error.
    Thomas H. Cunningham, for defendant in error.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a prosecution on an information filed by the state’s attorney of Lawrence county, against plaintiff in error, charging him with keeping certain gambling devices, in a specified building on premises described. Trial by jury. Verdict'of guilty. Judgment on the verdict. Fine $100 and costs.

The only questions properly raised in this record are, as to the weight of the evidence, the giving of the 2nd, 7th, 8th and 10th instructions on behalf of defendant in error; and the modification by the court of the 8tli and 9th instructions asked by plaintiff in error.

It is conceded that the specified gambling devices were kept in the specified building* and that the same were found and seized by the officer under a search warrant, but counsel for plaintiff in error insist that the evidence fails to prove beyond a reasonable doubt that plaintiff in error was in any way a party to the keeping of these devices there. The evidence does not so impress us. To our minds it appears to be sufficient to fully warrant the jury in its finding.

Counsel state that instructions 2, 7 and 8, given on behalf of defendant in error, have been condemned by this court in the case of Ryan v. People, 122 Ill. App. 461. We have examined the instructions complained of here, in the light of the opinion in the case cited and find that the criticisms on the instructions under consideration in that case do not apply to the instructions in the case at bar. The 2nd instruction complained of here, contains the words “from the evidence,” which were omitted from the instructions of the same class in the case cited; and as to the 7th and 8th instructions in the case at bar, they are of a different class and do not fall under the rule laid down in the case cited. The second instruction refers in a measure to the impeachment of witnesses who may be found to have “knowingly testified untruthfully;” while the seventh and eighth refer only to the weighing of the testimony of witnesses where no question of impeachment is involved. As to the tenth instruction challenged by counsel, we think that in substance it states the law correctly, and that the form in which it was given could not have misled the jury.

Instruction number eight as presented by plaintiff in error is as follows:

“The information in this case charges that the defendants kept certain gambling devices upon which money is staked, paid or played upon chance or upon the result of which action of said devices money or other valuable thing is staked, won or lost. Before the jury can convict the defendants of the crime as charged against them the evidence must show beyond a reasonable doubt-that the defendants kept such devices, for the purpose alleged in the information, and unless the evidence has so shown beyond a reasonable doubt you should find them not guilty. ’ ’

'But the court refused to give the instruction as asked, and modified it by striking out the words, “for the purpose alleged in the information.”

The instruction number nine as asked for by plaintiff in error was as follows:

“The State is required to prove by competent evidence beyond a reasonable doubt the defendants did as charged in the information keep the devices as alleged in the information and for the purposes alleged therein, and unless it has been so proved your verdict should be for the finding the defendants not guilty.”

' But the court refused to give the said instruction as asked for and modified it by striking out the words, “and for the purposes alleged therein.”

Counsel contend that the trial court erred in striking out of these instructions the words, “for the purposes alleged in the information.” This position we think is not well taken for two reasons: There are no “purposes” alleged in the information; and it is not necessary to allege or prove that the devices were either used or kept for gambling purposes. Bobel v. The People, 173 Ill. 19 (27). In this case the court says: “Plaintiff in error contends that the mere keeping of snch gambling devices is not an offense under the statute; that to constitute the offense the devices must be actually used, or at least actually kept, for gambling purposes. * * * While a plausible argument is made that in view of the phraseology of the statute, and especially of the title, the purpose of the act is not to prohibit the mere keeping or using of such a device, but only the keeping or owning of the same to be used for gambling purposes, still, it cannot be doubted that the legislature has the power to prohibit the mere keeping in possession of such gambling devices as well as to prohibit their use, as it has done in respect to obscene and indecent pictures, drawings, books, etc. (Crim. Code, sec. 223; 1 Starr & Cur. Stat. 816; Fuller v. People, supra); and in respect to plates, dies, etc., made use of for counterfeiting (Crim. Code, sec. 113; 1 Starr & Cur. Stat. 736; Soby v. People, supra). And we are of the opinion that it was the purpose of the legislature in enacting this statute, not only to suppress the use of these gambling devices or the keeping of them for gambling purposes, but also to prohibit the ownership or the kee°ping of them, whether for gambling purposes or not.” And as the Supreme Court say in the case above quoted from, so we say in the ease at bar.

' We find no substantial error in the instructions complained of, and see no sufficient reason why the judgment should be reversed. It will therefore be affirmed.

Affirmed.


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    The People of the State of Illinois, ex rel. Nora Etter, Appellee, v. Harry O. Whittington, Appellant.
    1. Trial—validity of agreement to try two causes by same jury. Held, that the agreement in this case to try a prosecution for seduction and another for bastardy by the same jury, was valid and binding upon the defendant, and that, upon the record, even though such agreement was not binding, no assignment of error could be necessarily interposed to the manner of proceeding.
    2. Trial—how remarles of counsel must 6e preserved for review. In order to save for review the propriety of remarks of counsel the same must be shown by the bill of exceptions.
    Prosecution under Bastardy Act. Appeal from the County Court of Franklin county; the Hon. Thomas J. Myers, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    W. H. Hart and T. J. Layman, for appellant.
    W. P. Seeber, for appellee; W. C. Blair, of counsel.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a prosecution under the Bastardy Act, in the County Court of Franklin county, by appellee against appellant. Trial by jury. Verdict in favor of appellee. Judgment on the verdict', the judgment being . in accordance with the provisions of the statute. From this judgment appellant has appealed to this.court.

The prosecution was instituted on a complaint made by the prosecutrix to a justice .of the peace, on the-28th day of November, 1905. Upon return of the warrant, which was not until the 4th day of February, 1907, appellant entered into bond for his appearance at the April term, 1907, of the County Court. Various motions were entered and ruled upon by the court, and continuances granted at the April and May terms of the ' court; and at the June term there was a trial resulting in the failure of the jury to agree upon a verdict. Nothing that occurred at any or all of these terms is properly involved in this appeal. At the July term by agreement of the parties, the cause was transferred to the law term of the County Court, commencing on the third Monday of August, 1907. On the first day of the August term, the case was, by agreement, set down for trial, August 30th, and on August 28th an agreement was entered into in open court as follows: “By agreement of the parties, plaintiff and defendant, the defendant being present in his own proper person, and attended by his said attorney, W. H. Hart, this cause is to be tried by the same eleven jurors that are now empaneled to try cause No. 92 on the criminal docket against this defendant, Harry 0. Whittington, on the charge of seduction, said jury to be governed in their deliberations of this case by the same evidence adduced in that case, No. 92.” In pursuance to the above noted agreements, the cause came on for trial August 30th. The record is as follows: “And now on to-wit, Friday, August 30th, A. D. 1907, one of the judicial days of the August term, A. D. 1907, come the People, by W. P. Seeber, State’s Attorney, and W. C. Blair, counsel for the people; also come the said defendant, Harry O. 'Whittington, in his own proper person, attended by W. H. Hart, his attorney, and this cause coming on to be heard before the court and a jury, it was ordered that a jury be called. Whereupon, come the following named eleven jurors, by agreement of the parties, plaintiff and defendant, they being the same eleven jurors that tried this defendant, Harry O. "Whittington, on the charge of seduction, cause No. 92 on the Criminal docket, to-wit: J. W. McCormick, S. H. Stockton, Marshal Bagsdale, B. L. Cantrell, W. S. Cockrum, C. E. Johnson, J. A. Turner, Levi Naylor, W. F. Furlow, J. W. Hiñe and W. S. Elkin, eleven good and lawful men, citizens of the said county of Franklin, who were duly tried, accepted and sworn to well and truly try the issue, is the defendant, Harry O. Whittington, the real father of the bastard child of the prosecutrix, Nora Etter, and a true verdict render according to the evidence. The jury having heard the evidence and received the instructions of the court, retire in charge of sworn officer to consider of their verdict. And now on this day, to-wit, August 30th, A. D. 1907, the said jury having duly considered the cause, return into open court with their verdict as follows: ‘We the jury find that the defendant, Harry O. Whittington, is the real father of the bastard child of the prosecutrix, Nora Etter.’ ”

Counsel for appellant now insist that the trial court erred in submitting this case to the jury after they had returned a verdict of guilty against appellant in the seduction case, and they say: “After the agreement to try the seduction case by the same jury and for them to consider the same evidence in each case, it was error to try the seduction case first and require a verdict before sending them to the jury room to find a verdict in the bastardy case by jurors, all of whom had expressed their opinion and knew all about the case.” The first answer to this contention is, that the record does not state the agreement as counsel do. Before the agreement was made the jury had been selected to try the seduction case and had been empaneled to try that case. The agreement was not' to try the seduction case by the same jury as this case, but to try this case “by the same eleven jurors that are now empaneled to try cause No. 92 on the criminal docket against this defendant, Harry 0. Whittington, on the charge of seduction,” being the seduction case.

This was a civil, not a criminal proceeding, and the respective parties are fully bound by their agreement and stipulations with respect to it. And further, after the verdict was returned in the seduction case, in pursuance of the agreement, the same jurors were called in this case, “by agreement of parties,” and “were duly tried, accepted and sworn” to try this case, all without a word of objection or protest. We think there is no merit in counsel’s propositions, but however that may be, the state of the record is such that it cannot avail them here. Having failed to object at the time it was too late after verdict.

The complaint meets' all the requirements of the statute; the court did not err in any of its rulings with respect thereto; and the affidavits filed in support of appellant’s motion for new trial and in arrest of judgment do not disclose such a state of facts as would have warranted the trial court in granting either of said motions.

Complaint is made of certain statements and remarks claimed to have been made to the jury by one of the attorneys for appellee. It does not appear from the record that the statements and remarks complained of were in fact made. It is true that the bill of exceptions contains an affidavit filed in support of appellant’s motion for new trial, and that it is set up in that affidavit that one of plaintiff’s attorneys did make the statement and remarks complained of, in his argument before the jury. The fact that the attorney did make such statements and remarks, if it is a fact, is not incorporated in the bill of exceptions as a fact. The bill of exceptions only establishes the fact that an affidavit was filed in which the affiant says such statements and remarks were made. If a party desires to avail on appeal of facts occurring in the presence of the court during a trial and as part of the trial, such facts should be incorporated in the bill of exceptions as'facts, to the truth of which the judge certifies.

Counsel complain of the action of the trial court in the giving of certain instructions. The instructions are nineteen in number and appear to have been read to the jury as one series. While few of them are individually perfect, still, when read and considered as a whole, as one series, they state the law applicable to the issues and the evidence most favorably to appellant, and we think there is no error in any one of them that either did or could have misled the jury. The only remaining questions properly raised on this appeal are with respect to the evidence and the weight of it.

Counsel for appellant contend that the evidence is not sufficient to sustain the verdict. At the time of the trial the mother of the child, the prosecutrix, was about eighteen years old. She testified that she had been acquainted with appellant since the spring of 1902, and began to keep company with him in 1903; that she first had sexual intercourse with him about the first part of November, 1904, and after that she had intercourse with him, in December, 1904, and in January, in March, in April about the middle, in the first part of May, in the latter part of July, in August, in September and in October, 1905; that her child was born January 14, 1906; that it was a live, fully matured child when born and was living at the time of the trial, and that she had never been married. She told in detail the places and circumstances connected with each of the acts of intercourse stated. This testimony is corroborated, by" a letter written to the prosecutrix, by appellant, on May 1, 1905; by his direct statements and admissions, made on at least five different occasions, as testified to by seven or eight witnesses; by his conduct, and by a number of clearly proved circumstances. Appellant denies that he ever did have sexual intercourse with-the prosecutrix, and he produces some evidence tending to contradict and impeach her, but, upon the whole evidence, the jury was abundantly warranted in its verdict.

We find no reversible error in this record. The judgment of the County Court is affirmed.

Affirmed.