text:
    Eugenie De R. Rice v. The Illinois Central Railroad Company.

      Carriers — Action to Recover Damages for Personal Injuries and Loss of Baggage — Questions for Jury — Motion to Exclude Plaintiff's Evidence-Pass — Error in Name — Fraud—Baggage—Bailment—Presumptions.
    1. Where inferences of fact are to be drawn from the evidence they must be so drawn by the jury.
    2. A motion to exclude plaintiff’s evidence, like a demurrer to evidence, admits all that it tends to prove, and when the evidence tends to support two theories, one favorable to the plaintiff and one antagonistic to him, the court should deny the motion and submit the evidence to the jury.

      . 8. Where a common carrier undertakes to carry baggage without reward it is liable only as a gratuitous bailee for bad faith or gross negligence.'
    4. Where a bailment and injury to goods while in the hands of a bailee are proved, the law presumes negligence and imposes upon the bailee, the burden of showing the degree of care required by the nature of the bailment.
    5. In the case presented, it is held: That the nature of the accident as proved was such as to raise a presumption of negligence against the- defendant; that the fact that the plaintiff was traveling on a pass does not of itself relieve the defendant from liability; that whether the plaintiff was a trespasser on the defendant’s train was a question for the jury, a slight error or difference in the name appearing on the pass not being conclusive of fraud on the part of the plaint'ff; that whether the degree of negligence of the defendant was such as to render it- liable for damages to plaintiff’s baggage was a question for the jury; and that the court below erred in sustaining the motion to exclude the plaintiff’s evidence.
    [Opinion filed July 13, 1887.]
    In error to the Circuit Court of Cook County; the Hon. John C. Bagby, Judge, presiding.
    Statement by Moran, J. This action was brought by plaintiff in error to recover for personal injuries sustained and for the loss of certain baggage caused by the reason of an accident on the defendant’s railroad, alleged to have occurred while said plaintiff was being transported as a passenger thereon. The evidence introduced by plaintiff tended to show tlia-t she was riding in the cars of defendant and over the defendant’s road on a journey from Chicago to Hew Orleans. She had paid for a sleeping berth and was occupying it at the time of the accident, which occurred at night. The bridge over a creek at Duck Hill, Mississippi, was broken down, the baggage car and two others being precipitated into the water and the plaintiff’s baggage injured by wetting.
    The car ahead of the one in which plaintiff was sleeping was derailed, and by the shock to the sleeper plaintiff’s arm was injured. Plaintiff had, as she testified, procured through a friend a pass over the defendant’s road from Chicago to Hew Orleans, and on exhibiting the pass to the baggage agent in Chicago her baggage was checked and placed on the train. She further testified on cross-examination that there was a mistake in making out the pass which she did not discover till well on her way, when upon exhibiting the pass to the conductor, she found that it was written for “ Mrs. E. Price ” instead of Mrs. E. Rice. She said nothing to the conductor about the mistake of the name and he seems to have assumed that she was the person named in the pass. .
    There was much evidence relating to the amount of damage to the baggage n it material to the question presented by the writ of error. When the plaintiff’s evidence was closed the defendant moved to exclude all the evidence from the jury and the court granted the motion and instructed the jury to return a verdict for the defendant.
    Messrs. Schuyler & Kremer, for plaintiff in error.
    The law has never permitted the reward or compensation paid for the transportation of passengers to be a criterion or guide in measuring the carrier’s responsibility for personal injuries to his passengers; but discarding all subtle reasoning tending to minimize the liability of public servants, takes the broad, expansive position that the care, vigilance and circumspection due the patron from the carrier depending not so much upon contract, or duty undertaken, as upon public policy, is a matter of public interest and concern ; and in order to effectuate and as it were vitalize the great principle underlying these considerations, will not examine whether it was a service for reward or gratuitous, but limits its inquiry to the simple question: Was the injured party a passenger — was he lawfully in the carrier’s vehicle or conveyance when injured? O. & M. R. R. Co. v. Muhling, 30 Ill. 9; Todd v. The Railroad, 3 Allen, 18; N. Y. Central R. R. v. Lockwood, 17 Wall. 357; Penn. R. R. v. Henderson, 51 Pa. St. 315; Rose v. The Railroad, 39 Iowa, 216; Jacobus v. The Railroad, 20 Minn. 125; Flint, etc., R’y v. Wier, 37 Mich. 111; New World v. King, 6 How. 469; Perkins v. The Railroad, 24 N. Y. 196; Gt. N. R’y v. Harrison, 10 Exch. 376; Gillenwater v. The Railroad, 5 Ind. 339; Washburn v. The Railroad, 3 Head. 638; Holton v. W. R. R. Corp., 15 N. Y. 444.

      The presumption of law that every one on a railroad passenger train is there lawfully, casts upon the carrier the o?ius of proving that such person was a trespasser, where that fact is relied upon as a defense. Pennsylvania R. R. Co. v. Brookes, 57 Pa. St. 339 ; Creed v. Pennsylvania R. R. Co., 86 Pa. St. 139.
    Intention is the basis of fraud; without intention and knowledge, law and morals alike exclude the idea of moral or legal wrong. Miller v. Howell, 1 Scam. 499; Warner v. Carlton, 22 Ill. 415; Nelson v. Smith, 28 Ill. 495; Henshaw v. Bryant, 4 Scam. 97; Boies v. Henney, 32 Ill. 130; Bowen v. Schuler, 41 Ill. 192; Gage v. Lewis, 68 Ill. 64.
    The plaintiff is entitled to recover for her injured baggage, even if the services of the defendant were gratis.
    “A mandatory or bailee who undertakes, without reward, to take care of the pledge, or perform any duty or labor, is required to use in its performance such care as men of common sense and common prudence, however inattentive, ordinarily take of their own affairs, and they will be liable only for bad faith, or gross negligence, which is an omission of that degree of care.” Skelley v. Kahn, 17 Ill. 170, and authorities cited.
    The evidence of this accident with resulting injury and unaccompanied by any evidence in rebuttal, is presumptive evidence of negligence, and whether from all the facts such negligence amounts to that degree which, under the rule laid down in these cases gives an action, is a question for the jury, and should in this case have been submitted to it. Shelly v. Kahn, 17 Ill. 170.
    But the plaintiff was a passenger for hire. By the title conferred by a free pass the plaintiff boarded the defendant’s train; when there she applied to the company for a more choice accommodation than she could have under the pass, viz , a berth in their sleeping car. Por this additional accommodation the company’s agent demanded and received from her the sum of §6.
    This transaction changed the nature of the relations of the parties; it abrogated the pass and constituted Mrs. Bice a passenger for hire. •

      Mr. Edwabd Ryan Woodle, for defendant in error.
    There was no evidence proving, or tending to prove, that the plaintiff was lawfully on the defendant’s train; on the contrary, the proof was clear that she was a trespasser on the train. The company was under no obligation to her whatsoever, either for the safe transportation of herself or her baggage.
    The rule is well settled that, under such circumstances no recovery can be had, except for gross negligence, amounting to a wilful injury, and there was no proof of such negligence, nor in fact of any negligence on the part of the defendant or its agents, in the case. T., W. & W. R’y Co. v. Beggs, 85 Ill. 80; C. & A. R. R. Co. v. Michie, 83 Ill. 427.
    It is urged that the plaintiff’s own testimony shows facts and circumstances from which a prima facie presumption of negligence on the part of the defendant must arise. The proof, however, created by such evidence, is only inferential and presumptive. Curtis v. R. & S. R. R. Co., 18 N. Y. 534; P., C. & St. L. R’y Co. v. Thompson, 56 Ill. 138.
    To establish the liability of the defendant for the loss of her baggage, it was incumbent upon the plaintiff to show that it received the same as a common carrier for hire. Hutchinson on Carriers, Sec. 57; F. & P. M. R. R. Co. v. Weir, 37 Mich. 111; M. C. R. R. Co. v. Carrow, 73 Ill. 348.
   Moran, J.

The first question presented is, did the evidence tend to establish that the defendant company had been guilty of negligence? The evidence tended to show that the injury occurred to plaintiff by. reason of a bridge on defendant’s line of railway, over which plaintiff was being transported by defendant in its cars, giving way while the train was passing over it, so as to precipitate a portion of the ears composing the train into the creek and to derail other cars. The nature of the accident as proved was such as to raise a presumption of negligence on defendant’s part, and to cast on defendant the burden of showing how the accident happened, and that it could not be prevented by the exercise of the greatest degree of diligence practicable under all the circumstances of the case. G. & C. U. R. R. Co. v. Yardwood, 17 Ill. 509; Curtis v. R. & S. R. R. Co., 18 N. Y. 534; Bowen v. N. Y. C. R. R. Co., 18 N. Y. 408.

The fact that the defendant railroad company was carrying the plaintiff gratuitously, or on a pass upon which, so far as the evidence in the record discloses, there were no conditions exempting the company from damages for injury resulting from its negligence, would not relieve it from the responsibility which the law from motives of public policy imposes on carriers of passengers generally. O. & M. R. R. Co. v. Muhling, 30 Ill. 9.

The two preceding propositions are not seriously controverted, but on the contrary are practically admitted by the counsel for appellee. The main contention urged by said counsel in support of the ruling of the court, is that it appeared from the testimony that the plaintiff was on defendant’s train as a trespasser; that she was gaining transportation by practicing a fraud upon the company in passing herself for another. The pass by virtue of which she was riding on the train, it is said, was not issued to her but to “ Mrs. E. Price,” and therefore the company owed her no duty and are not liable to her for any injuries she may have received or losses she may have sustained. It is no doubt true that, if the plaintiff was in fact attempting to secure passage upon the defendant’s train by presenting a pass which she knew was intended for another person, the company would in such case be liable to her only for damages caused by gross negligence amounting to wilful injury. T., W. & W. R. R. Co. v. Beggs, 85 Ill. 80. But the mere fact that the .pass which she held was written as for “Mrs. E. Price” would not of itself justify the conclusion by the court, as a matter of law, that she was attempting to commit a fraud upon the company.

It was a question for the jury under all the evidence to determine whether or not she was upon the train in good faith and by virtue of a pass intended for her in fact, but.in which the name “ Price” was written by mistake. If such was the fact it could not be maintained that she was on the train as a trespasser. Fraud in such a case must be actual and depends upon intent, and for a woman to go upon a train with a pass given to her by a friend who had undertaken to procure one for her, and to proceed a portion of her journey before discovering that there was what she supposed under the circumstances to be a mistake in writing the name in the pass “Price” instead of “ Eice, ” and then to go on without disclosing the supposed mistake, would, it seems to us, be entirely compatible with perfect honesty and good faith on her part. But whether she was fraudulently taking the benefit of a pass issued to, and intended for another, or enjoying in honesty and good faith a privilege she thought intended for, and secured to herself, was, as we have before said, a question for the jury and not for the court. Arnold v. Penn. Co., 8 Atlantic, 213; L. S. & M. S. R. R. Co. v. Rosenzweig, 9 Eastern Rep. 325. Where inferences of fact are to be drawn from the evidence, they must be drawn by the jury. So where the inference to be drawn is disputed, as where it may be contended as it is in this case that the facts will equally support one inference or another, the court is not at liberty on such ground to take the case away, but must submit it to the jury to determine which is the correct inference of fact to be drawn from the evidence. Pa. R. R. Co. v. Werner, 89 Pa. St. 59; Schum v. Pa. R. R., 107 Pa. St. 8.

A motion to exclude evidence like a demurrer to evidence, admits all that the plaintiff’s evidence tends to prove, and when the evidence tends to support two theories, one favorable to plaintiff and the other antagonistic to him, the court is not on such motion authorized to say which theory is proven, but should deny the motion and submit the evidence to the jury under proper instructions. Poleman v. Johnson, 81 Ill. 269; L. S. & M. S. E. E. Co. v. O’Conner, 115 Ill. 251-261; Mass. v. White, 37 Mich. 126.

It is contended by counsel for defendant in error that no liability for the baggage of plaintiff, alleged to have been injured, was shown by the evidence. - Defendant in error received the baggage to carry without hire, and if it was so received without any fraud being practiced upon defendant, it was bound to the duties of a gratuitous bailee. Such bailee is required to perform the labor undertaken with such care as men of common prudence, however inattentive, ordinarily take of their own affairs, and will be liable only for bad faith or gross negligence, which is an omission of that degree of care. Skelley v. Kahn, 17 Ill. 170. The undertaking here was to carry the baggage from Chicago to New Orleans without reward. The delivery of the baggage to the c.rrier was shown, and it was also shown that the baggage-car fell through a bridge on defendant’s line of road, and into the river or creek, and that the baggage was injured by being wet. From these facts negligence would be presumed, and whether the degree of negligence was such as would render defendant liable for the damages to the baggage, was a question for the jury to determine.

In Sturs v. Liverpool & N. Y. P. & S. Co., 57 N. Y. 1, baggage was delivered to the company under an agreement that they should not be liable for any damage except when the same should be proven to have occurred through gross negligence. Proof of the delivery of the baggage and its non-production at the end of the voyage was held to make out a case on which the jury might find gross negligence. By the rule adopted by the Supreme Court of this State, where the bailment and the injury to the goods while in the hands of the bailee is proved, the law will presume negligence on tne part of the bailee, and impose on him the burden of showing that he exercised such care as was required by the nature of the bailment. Bennett v. O’Brien, 37 Ill. 250; Cumins v. Wood, 44 Ill. 416. If, therefore, plaintiff was not guilty of any.fraud in being on or having baggage on the train, but by” the consent of the company herself and baggage were being gratuitously’' transported in the defendant’s care over its road, she would be entitled under the evidence in the record to recover the damages which she might succeed in showing she suffered by reason of the accident, as well to her baggage as to her person, unless the company proved that it had exercised the degree of care and diligence required by law under all the circumstances.

The Circuit Court erred in sustaining the motion to exclude plaintiff’s evidence, and the judgment must therefore be reversed and the case remanded.

Reversed and remanded.


source: Caselaw Access Project

author: McAllister, P. J.

license: Public Domain

text:
    Culver, Page, Hoyne & Company v. Horace H. Thomas.

      Negotiable Paper — Indorsement—Contract of Guaranty.

    In an action against an indorser, as guarantor of certain promissory notes, it is held: That the only liability of the defendant was that of an indorse'-, the mere fact tint it placed its name twice on each note, being insufficient to authorize the holder to write over one signature, or both, a contract of guaranty.
    [Opinion filed July 13, 1887.]
    In error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Frank J. Smith & Helmer, for plaintiff in error.
    Mr. A. S. Bradley, for defendant in error.
   McAllister, P. J.

This was an action by Thomas, as indorsee, against Culver, Page, Hoyne & Co., a corporation, as guarantor of four promissory notes made by H. L. Culver, and bearing date respectively, August 13, 18, 23 and 28, 1883, for $2,500 each, payable to said company as payee, six months from their respective dates, upon each of which said company indorsed its name twice, and they were delivered and negotiated by the holder of them so indorsed to the Commercial Hational Bank, and the latter wrote upon each, over one of the signatures of said company, a guaranty as follows: “ For value received we hereby guarantee the payment of the within note at maturity or at any time thereafter, with interest at eight per cent, per annum, and agree to pay all costs and expenses paid or incurred in collecting the same.”

There was a plea duly verified denying the execution of said guaranties respectively. On the trial before the court without a jury there was no evidence tending to show authority to write such a guaranty, except what was implied from the circumstance of the payee having indorsed its name twice upon each note; and there was a finding and judgment for the plaintiff against the defendant, merely as guarantor. Upon the evidence the only liability of the defendant which could be made out was that of indorser, notwithstanding the defendant put its name twice upon each note. That fact or circumstance was insufficient to authorize the holder to write over one signature, or both, a contract of guaranty. That point is expressly decided by the Supreme Court in Johnson v. Glover, 12 N. E. Rep. 257, and is decisive of this case. The judgment will, therefore, be reversed and the case remanded.

Jxtdgment reversed.


text:
    Union National Bank et al. v. The International Bank et al.

      Evidence — Parol, Inadmissible to Alter or Vary Terms of Condition in a Mortgage — Admissibility of Former Decree — Privity—Colorations— Defense of Usury — Sec. 11, Gh. 74, R. S.

    1. Parol evidence is inadmissible to alter or vary the terms of the condition in a mortgage by enlarging it from specified kinds of indebtedness to others not embraced but excluded by the language of the condition.
    2. Sec. 11, Ch. 74, R. S., which prohibits corporations from interposing the defense of usury, is held to apply to a case wherein the defendant corporation was not a party to the usurious transaction alleged.
    3. One not a party to a judgment or a decree may sometimes be bound thereby by reason of privity of law, of blood, or of estate.
    4. In the absence of fraud or collusion, it seems that those claiming under a second trust deed are bound by the decree in a foreclosure proceeding, adjusting and establishing the amount of the grantor’s indebtedness secured by the first trust deed, although they were not parties to such proceeding.
    [Opinion filed July 13, 1887.]

      Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. W. T. Burgess, Melville W. Fuller and Herrick & Martin, for appellants.
    ' Messrs. Bosenthal & Pence, for appellees.
   McAllister, P. J.

This case was heard at the March term, 1881, of this court, on error, and a decree of foreclosure in favor of Bauer and others, was reversed and the cause remanded. It is reported as Jenkins v. Bauer et al., 8 Ill. App. 634, where may be found a full statement of the issues and facts then involved. Since the case was reinstated in the court below, some new parties, with further and voluminous pleadings, have been added, introducing new matters and giving rise to other and different questions. Upon the second hearing before the chancellor a decree passed, finding the amounts due from Walker to the several parties interested, to the exclusion of all usurious payments, as before, and directing a foreclosure. From that decree this present appeal is prosecuted, the appellants assigning numerous errors. But upon due consideration, we think the only errors assigned, worthy of much attention, are those which arise upon the admission and exclusion of evidence at the hearing, and the effect given to a former decree.

It is not practicable, nor do we deem it our duty to enter upon a general restatement of the many and voluminous pleadings in this case; we shall, therefore, confine ourselves to mere brief outlines of those parts of the case upon which we think the controlling questions arise.

The case was a foreclosure proceeding. The appellees claimed under and sought the foreclosure of a trust deed in the nature of a mortgage made by S. J. Walker and wife, January 2, 1873, to Bosenthal as trustee, covering a parcel of land described therein, lying between the west branch of the south branch of the Chicago Biver and the Illinois and Michigan Canal, to secure to the several appellees an indebtedness of said Walker which, at the time of the hearing, was found to be $208,775.04. The deed was duly recorded January 18, 1873. The contestants, as to the amount legally due under said trust deed, were the Union National Bank and the heirs at law of W. F. Coolbaugh, deceased. Their relation to the oase arose out of a second deed of trust. October 9, 1873, said Walker and wife executed to said Coolbaugh in his lifetime and as trustee, a deed of trust covering the same premises. The condition expressed in the deed was in these words: “ This conveyance is made to secure any and all indebtedness of Samuel J. Walker as maker or indorser of any and all notes, drafts or acceptances held by the Union National Bank, or negotiated through said W. F. Coolbaugh, or any or all renewals of the same, or any or all paper that said Walker may hereafter sell to said bank, or negotiate through said Coolbaugh.”

The deed contained the usual covenants of title and against incumbrances, but no reference to said former deed of trust to Bosenthal. Coolbaugh was originally a party to the suit, but having died inteslate, his death was suggested July 9, 1881, and his heirs at law made parties. Walker had set up usury and the payment of large sums of usurious interest, averring the amount to have been sufficient .to extinguish a large part, if not the whole of his indebtedness to the several appellees, and asked for an accounting. The Union National Bank and the heirs of Coolbaugh, respectively, set up the same defense by proper pleadings.

The evidence showed that, at the time of Ooolbaugh’s death, Walker owed him about $22,000 ; also, that he was indebted to the Union National Bank in a large sum, exceeding $200,000.

By way of estoppel upon said Walker, the Union National Bank and the heirs of said Coolbaugh, from again drawing in question and litigating the matter of usury as ■ aforesaid, the appellees, by cross-bill in the nature of a plea., set up the proceedings and decree in another suit in chancery brought by one George Wilshire, March 11,1874, in the court below, against said Walker, the International Bank and others, not including, however, the said Union National Bank, Ooolbaugh, or his heirs, as parties, wherein the same identical matters were put in issue and passed upon by the court by decree rendered February 28, 1878, and finding the amount of Walker’s, indebtedness to said International Bank, and subject to the securities including the said trust deed to Rosenthal to be §172,474. .

For further particulars in regard to said decree we refer to the statement of facts in the case of Jenkins v. International Bank, 111 Ill. 463.

Upon the hearing in this present case the court, against the objections of appellants’ counsel, allowed appellees’ counsel to introduce the record and decree in the Wilshire case in evidence and excluded all evidence offered on behalf of appellants to sustain their defense of usury and the payments of usurious interest as aforesaid. In our opinion the most important and difficult, if not the controlling questions in the case, arise upon that ruling.

Among the several grounds in support of it counsel for appellees urge the following: That (1) the trust deed to Ooolbaugh, failing to describe any indebtedness, it was to be regarded as inoperative in this proceeding; (2) That there was nothing to show that the Ooolbaugh heirs had any beneficial interest under that deed; (3) That the Union National Bank being a corporation, it was prohibited, by Sec. 11 of our statute concerning interest, from, interposing the defense of usury; (4) That the decree in the Wilshire case, finding against Walker upon his defense of usury and establishing the amount of his indebtedness, was conclusive upon the Union National Bank and Ooolbaugh heirs, though not parties, on the ground of privity.

In order, probably, to obviate the force of the second and third grounds last above stated, counsel for appellants offered as evidence the oral declarations and deposition of said Walker to the effect and as tending to prove that at the time of the making of the trust deed to Ooolbaugh, it was verbally agreed between him and Walker, that it should be held as security for any notes or money due by Walker to Ooolbaugh individually as well as to the bank. Upon objection of appellees’ counsel the court excluded the evidence.

It is said in Jones on Mortgages, Vol. 1, Sec. 384, that “ parol evidence is admissible to show the. true character of a mortgage and for what purpose and what c; nsideration it was given. Although it be for a definite sum and secures the payment of the notes for definite amounts, it may be shown that the mortgage was simply one of indemnity.” So it has been held that parol evidence is admissible to identify the note intended to be secured. Melvin v. Fellows, 33 N. H. 401, and authorities there cited.

But there is nothing in the rules above stated which sanctions or authorizes the admission of parol evidence to alter or vary the terms of the condition contained in a mortgage by enlarging it from specified kinds of indebtedness to that which was not embraced, but excluded by the language of the condition.

The terms of a mortgage can not be varied by any verbal agreement or understanding of the parties, or their acts. or conversations prior to or at the time of the execution of it. 1 Jones on Mortgage, Sec. 96. We are of opinion that the evidence offered was incompetent, the parties offering it not being strangers, and it would have been to alter or vary the condition by parol.

The other questions we propose to consider arise upon the exclusion by the court of the evidence offered respecting the "usury and payment by Walker of usurious interest. And first, was it admissible to the Union National Bank to interpose that defense? There is no evidence as to the incorporation of that bank. Whether we should assume that it was under the laws of Congress or under some other law that it became a corporation, as its name imports, we are not advised. We may, however, assume it to be a corporation. But if untrammeled, and the question was one of first impression, we should be inclined to hold, with the New York cases, that the eleventh section of our interest statute should not be construed as applying to such a case as this, where the corporation interposing the defense was not a borrower or in any respect a party to the usurious transactions alleged. But we are precluded from taking that view by the construction given to the clause in Hartford F. Ins. Co. v. Hadden, 28 Ill. 260. The Supreme Court alone can overrule or modify the views there taken. We are bound by them.

If the Union National Bank was precluded by that statute from interposing the defense of usury, and the heirs of Coolbaugh had no beneficial interest under the trust deed to Coolbaugh, that would seem to dispose of the error assigned upon the action of the chancellor in excluding the evidence as to usury. But we are by no means satisfied that the. condition in the trust deed, as it was written, did not give to Coolbaugh, the trustee, a beneficial interest under that deed as security to him of a specified nature which might have been shown by parol evidence. An "indebtedness from Walker to him was shown by the evidence. Therefore it will be necessary to go a step further and consider the effect of the decree in the Wilshire case upon the rights of the Coolbaugh heirs as respects their defense of usury and bearing upon the question of amount legally due from Walker to appellees.

If Coolbaugh was bound by that decree, then his heirs, by reason of their privity in blood and in estate, were likewise bound. Neither were parties to the suit. The trust deed to Coolbaugh was executed, and his rights thereunder were acquired before the Wilsliire suitwas brought. Freeman, in his work upon judgments, says: “It is well understood, though not usually stated in express^ terms, in works upon the subject, that no one is privy to a judgment whose succession to the Tights of property thereby affected occurred previously to the institution of the suit.” Freeman on Judgments, Sec. 162.

In Brush v. Fowler, 36 Ill. 53, the court, by Mr. Justice Breese, said: “We understand the doctrine to be universally recognized, that no one can be injuriously affected by a judgment or decree of any court, who was not a party to such judgment or decree.” That broad statement might be well enough when applied with reference to that case. But we know that persons who are not parties are sometimes bound by judgments and decrees by reason of their being privies in law, in blood or estate, with one who was a party. The case of Scates v. King, 110 Ill. 456, lays down the general rule that a decree or other legal proceeding is binding only on the parties thereto or their privies, and decides that in a foreclosure proceeding, where the grantee of the mortgagor was not made a party, the right of redemption of such grantee was unaffected by the decree. But the question remains whether there was not such a relation of privity between Walker, the grantor, and Coolbangh, the grantee, in the trust deed in the nature of a mortgage, as that the latter was bound by the decree against the former in the Wilshire case, establishing the amount of Walker’s indebtedness to appellees. Coolbangh, not having assumed the former incumbrance to Rosenthal, is to be regarded as impliedly authorized by Walker’s conveyance to him to set up and urge the latter’s personal right to the defense of usury. Maher v. Lanfrom, 86 Ill. 513, 521. But was he thereby vested with an absolute right to have the benefit of such defense, which would amount to a right of property and which Walker was powerless by any subsequent act on his part to impair, without Coolbaugh’s consent? We think not. It seems to us that it would have been entirely competent for Walker to have subsequently adjusted the amount of indebtedness to appellees without, taking advantage'of the usury laws and without the consent of Coolbangh or any of his other creditors; and, if done in good faith without fraud or collusion, it would have been conclusive upon Coolbaugh and the Union National Bank.

In Candee v. Lord, 2 N. Y. 269, there is an able and interesting discussion of questions which bear closely in principle upon that we have just been considering. And the doctrine was there announced that a judgment obtained without fraud or collusion and which concludes the debtor, whether rendered upon default, confession, or after contestation, is upon all questions affecting the title to his property, conclusive evidence against his creditors to establish, 1st, the relation of creditor and debtor between the parties to the record, and 2d, the amount of the indebtedness.

We are inclined to the opinion that the decree in the Wilshire case, against Walker, adjusting and establishing the amount of his indebtedness to appellees, was conclusive upon Coolbaugh and the Union National Bank, there being no pretense of fraud or collusion as respects that decree.

The case ought to be passed upon by the Supreme Court, and according to our best judgment, the proper way to dispose óf it here is to affirm the decree below, so that it can go directly to that court.®

Decree ajjw'med.


author: Mr. Justice Eldredge

text:
    O. B. Kaull, Appellant, v. George Pasfield, Appellee.
    Brokers, § 48

      —when "broker is not entitled to commissions. A real estate agent was not entitled to commissions where the contract provided that he should receive as commissions what he was able .to obtain over a fixed purchase price, where the land was sold by the owner, who had retained the right to sell the land himself, to a party whose name had been mentioned to the owner by one of the agent’s subagents, at a price less than the stipulated purchase price, and where there was an absence of showing that the purchaser was ever ready, willing or able to pay the stipulated price or more.
    Appeal from the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    W. St. J. Wines and S. D. Scholes, for appellant.
    B. L. Catron, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellant sued appellee in the circuit court of Sangamon county to recover commissions for procuring the sale of 1,246 acres of farm land owned by the latter. The declaration consisted of the common counts with a bill of particulars attached. "At the close of appellant’s evidence, the court excluded the same and instructed the jury to find the issues joined in favor of appellee. Judgment was rendered on the verdict, to reverse which this appeal is prosecuted.

In the spring of 1919 appellee owned two farms in Madison county, Illinois, one comprising 667½ and the other 578½ acres and known as the north and south farms, respectively. Appellant, who, at that time, was engaged in the business of buying and selling lands, with an office in St. Louis, Missouri, learning that appellee had these farms for sale, called upon the latter at Springfield, Illinois, where he lived.

The contract as testified to by appellant is as follows : “I heard on the train this Pasfield land was for sale. I went to see him along in January or February this year (1919). I inquired of him in regard to his land in Madison county, near Mitchell. He told me he had some land there and would sell it. I told him I was in the business of buying and selling land and would like for him to let me undertake to sell this land. I asked him his price on the land and he told me his price was $135 an acre. I told him that was too much and insisted that was a higher price than he would be able to get and that he ought to come down and take a less price. I induced him at that time to agree to accept a price of $130 net to him. On that basis I undertook to sell the land for him, and was to have for my compensation whatever I could get above $130 per acre. That was my arrangement and I continued on that arrangement during the entire time while I was negotiating and endeavoring to sell the land. It was understood that I would ask above his price in order to make my commission, if I could get it. I priced the land after that for $150 an acre to various parties. Mr. Pasfield rather remonstrated with me about pricing it that high. He told me he was pricing it at $135 an acre to other parties, as he had first done to me, and he thought I was asking too much and would not be able to make any sale at all, but I insisted it was best to ask that much and get as much as I could. That, of course, would be for my benefit. I never took or sent any prospective buyer to Mr. Pasfield, with any proposition to buy this land. I understood that Mr. Pasfield reserved always the right to sell this land himself. He wrote me to that effect and told me that, and I understood that perfectly all of the time, * * * Pasfield said he would sell the south farm separate from the north, but not the north separate from the south.”

The evidence introduced tends to show that appellant had subagents in different parts of the States of Illinois and Missouri and that he listed these lands with the latter and attempted to sell the same. In April, 1919, one of appellant’s agents at Peoria, Illinois, spoke about the land to Frank J. Potter of that city and there is some hearsay evidence tending to show that Potter viewed the land. A few days thereafter, appellee sold both farms to Potter for $160,000, the same being about $128.41 per acre. No evidence was introduced tending to show that Potter was ever ready, willing, and able to pay $130 or more per acre for the land.

The theory of appellant is that appellee, having asked for his assistance in making a sale of the lands and the same having been sold to a person whose attention thereto had been called by appellant through the latter’s agents, appellant is entitled to the usual, customary and reasonable commission for bringing about the sale. We cannot agree with this contention as no such contract was made between the parties. There is no disagreement between the parties as to what the terms of the contract were. Appellant was to receive no commission unless he produced a purchaser of the lands who was ready, able and willing to pay more than $130 per acre. No contention is or can be made that appellant had the exclusive right to sell the land, as appellee at all times reserved that privilege in himself. Before appellant would be entitled to any commission or remuneration, it would be necessary for him to procure 'a, purchaser who would be ready, willing and able to pay more than $130 per acre. His commissions were dependent upon his procuring a purchaser who would pay more than that figure and would consist of the excess above the sum mentioned. No such purchaser was produced by appellant either directly or indirectly. In the case of Rees v. Spruance, 45 Ill. 308, it was held: “If the owner of property engages a broker to assist him in making a sale thereof, and stipulates that no commissions shall be paid unless a certain price is procured, such contract would of course be the measure of the rights and obligations, of the parties. If the broker does not find a purchaser who will give the price fixed, he does not earn his commissions. If he does find one thus willing, he would be entitled to his commissions, and the owner of the property could not defeat his claim by voluntarily selling to the purchaser thus found, at a less price. Such an act would be a fraud upon the broker. But the broker who has acted under such a contract must, in order to maintain an action for his commissions, prove that he had found a purchaser ready to give the required price.” In the case* of Burnett v. Potts, 236 Ill. 499, it appears that the appellees in, that case authorized the appellant to sell their farms for $35,000 net cash to themselves, appellant to have as commission all that he could sell the land for over that figure. Appellant made a contract of sale of the premises to another party for $37,500, $1,000 of which was paid to appellant at the time the contract was executed, the balance to be paid at different times. The purchaser, however, defaulted under his contract and never paid anything on it except the $1,000. Appellees thereupon brought suit against appellant to recover the $1,000 paid to him by the supposed purchaser. The court said: “Since his right to any compensation did not arise under the contract until appellees were paid $35,000, it necessarily follows that, the first $35,000 paid on the contract would belong to appellees. * * * Such contracts differ from the usual agency contract where the compensation of the agent is a per cent of the price at which the sale is made, only in that the compensation is contingent upon the agent’s obtaining more for the land than the owner has agreed to accept. If appellant had sold this land for $35,000, he would have been compelled to turn the entire proceeds over to his principals. We do not see upon what legal grounds he can be allowed to retain any part of the purchase money when only $1,000 has been paid. ’’ To the same effect are the following cases: Nudelman v. Wildes, 160 Ill. App. 134; Adams v. Kerfoot, 189 Ill. App. 211; Songer v. Wilson, 52 Ill. App. 117.

Appellant must abide by the terms of his contract and, having failed to produce a purchaser for the lands in question at a price exceeding $130 per acre, is not entitled to any compensation and the judgment of the circuit court is therefore affirmed.

Affirmed.


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    John W. Reed, Appellant, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellee.
    1. Workmen’s Compensation Act, § 5

      —when parties are hound by Workmen’s Compensation Act. Where a plaintiff, who was injured while unloading gravel from a car of his employer stationed in the yards of defendant railroad, was together with his employer, as was also the defendant, bound by the Workmen’s Compensation Act in force July 1, 1914 (Hurd’s Rev. St. 1916, ch. 48, Callaghan’s 1916 Stat. ¶ 5475[1] et seq.), the fact that defendant was also at the time of the injury engaged in interstate commerce gave plaintiff no right to maintain the action in question, where all parties had elected to be bound by the Compensation Act.
    2. Workmen’s Compensation Act, § 4*—when Workmen’s Compensation Act applies. Sections 1, 6 and 29 of the Workmen’s Compensation Act, in force July 1, 1914 (Hurd’s Rev. St. 1916, ch; 48, Callaghan’s 1916 Stat. ¶ 5475 [1], [6], [29]), considered in a personal injury case where plaintiff, while working for his employer in unloading a car of gravel stationed on defendant railroad’s track, was injured through the bumping of cars, where plaintiff, his employer and defendant had all elected to be bound by the act, but where defendant was engaged in interstate commerce at the time, the doctrine of expressio unius est exclusio alterius applied, and therefore as between plaintiff and defendant the rights and liabilities of each were determined by the provisions of the act, because such act set out and defined the rights and liabilities of all parties bound by its terms and enumerated thu exceptions thereto.
    3. Workmen’s Compensation Act, § 5*—when action will not lie. A railroad company could not be subject to both an action by an employee under section 29 of the Workmen’s Compensation Act (Callaghan’s 1916 Stat. ¶ 5475[29]) and to an action by the employer of the injured employee, as such a construction of the act would impose a double liability which would make the section unconstitutional.
    Appeal from the City Court of Pana; the Hon. John H. Fornoff, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    L. G. Griffith, G. L. Smith and McDavid, Monroe & Hershey, for appellant.

      George B. Gillespie, for appellee; F. L. Littleton, E. E. Dowell, John E. Hogan and George B. and George M. Gillespie, of counsel.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

In this case the trial court overruled plaintiff’s demurrer to defendant’s additional pleas and sustained defendant’s demurrer to plaintiff’s special replication and the plaintiff, having abided by its demurrer to said additional pleas and by its special replication, a judgment of nil elicit was entered. There is no technical objection to the pleas or the replication and it is conceded by both parties- that the sole question to be considered on this appeal is one of law, whether, under the facts pleaded, plaintiff has a cause of action.

The declaration consists of four counts, all of which, so far as the questions here involved are concerned, are substantially the same, the variation between them being only as to the form of negligence charged, in regard to which no question is raised. It is averred in the first count that plaintiff, on the 29th day of June, 1917, in the City of Pana, was employed in removing gravel from a certain railroad car for his employer, Sell & Kolar, of said city to whom the said gravel had been shipped, which car was then standing on a railroad switch track owned and possessed by the defendant and which connected with the main track which ran in an easterly and westerly direction and extended from the State of Indiana and into the State of Illinois and through the corporate limits of the City of Pana; that defendant was possessed of a certain locomotive with a certain train of cars attached thereto, which were under the care and management of the servants of defendant who were then and there driving the same upon and along the said railroad track and switch track and were then and there engaged in interstate commerce, to wit, the carriage of goods and chattels from the State of Indiana into the State of Illinois as a common carrier for hire; that plaintiff, in the exercise of due care, was then and there so employed in the car first aforesaid, which fact the defendant then and there well knew, or by the exercise of reasonable care could have known, and it became and was the duty of defendant not to remove said car except in a prudent and careful manner so as not to injure the plaintiff, yet the defendant, not regarding its duty in that behalf, did then and there couple aforesaid engine and cars with the said car in which the plaintiff was working so carelessly and negligently and without due regard for the said plaintiff, that, through the negligence of the defendant, the car in which the plaintiff was working was made to and did crash into a certain other of the aforesaid cars and by reason whereof the plaintiff was thrown with great force upon the floor of the car first aforesaid and was thereby injured.

The first special plea filed by the defendant, and commonly referred to as defendant’s second plea, avers, in substance, that plaintiff ought not to have or maintain his action because the firm of Sell & Kolar, by whom plaintiff was employed at the time of his injury, was a general contractor of the City of Pana doing local improvement work, excavating, putting in foundations of buildings, constructing brick and concrete buildings, and doing a general teaming and hauling business in said city; that plaintiff, at the time of his injury, was engaged in the usual course of the business of said firm as its servant and was then and there engaged in unloading gravel from a certain railroad car on defendant’s said line of railroad, and that said injury to the plaintiff was an accidental injury sustained by him, arising out of and in the course of his employment; that Sell & Kolar and plaintiff had each elected to be bound by the provisions of the Workmen’s Compensation Act of this State; and that the defendant railway company had also elected to he bound by the provisions of said act.

To this special plea the plaintiff filed a special replication to the effect'that at the time the plaintiff was injured, the servants of the defendant company were engaged in interstate commerce, to wit, the carriage of goods from the State of Indiana into and through the State of Illinois. A demurrer to this replication was sustained by the trial court and plaintiff abided by its replication.

The defendant also filed two additional pleas which are substantially the same and in which it is averred, in addition to the facts set forth in the special plea mentioned, that the plaintiff, pursuant to the Workmen’s Compensation Act, filed with the Industrial Board his petition for compensation for the injuries mentioned in the declaration, against his employers, Sell & Kolar, that an award of compensation was made in favor of him for the said injuries, which award remains in full force and effect. The award itself is set out in hæc verba. The plaintiff filed his demurrer to these additional pleas which was overruled and he abided thereby.

It is conceded by appellant that if the servants of appellee had been engaged in interstate commerce at the time of the alleged injury, the plaintiff, by reason of section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 Stat. ¶ 5475(29)] would have no cause of action against the defendant, but it is contended that as the servants of the defendant were, at the time their negligent acts caused the injury, engaged in interstate commerce, the defendant was not then operating under the Workmen’s Compensation Act but was bound by the Federal Employers’ Liability Act, which superseded the State law.

As the injury occurred on June 29, 1917, the rights of the parties must be governed by the Workmen’s Compensation Act as it existed on that date, which would be by the Act in force July 1,1914 (Hurd’s Rev. St. 1916, ch. 48, Callaghan’s 1916 Stat. ¶ 5475[1] et seq.). The sections of this act necessary to be considered are as follows:

“1. Be it enacted by the People of the State of Hlinois, represented in the General Assembly: That any employer in this State may elect to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this act, and thereby relieve himself from any liability for the recovery of damages, except as herein provided.” * * *

“ (b) Every employer within the provisions of this act who has elected to provide and pay compensation according to the provisions of this act shall be bound thereby as to all his employees covered by this act until January 1st of the next succeeding year and for terms of each year thereafter.”

“6. No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee other than the compensation herein provided shall be available to any employee who is covered by the provisions of this act, to any one wholly or-partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.”

“29. Where an injury or death for which compensation is payable by the employer under this act was not proximately caused by the negligence. of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this act, then the right of the employee or personal representative to recover against such other person shall be subrogated to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding the aggregate amount of compensation payable under this act, by reason of the injury or death of such employee. Where the injury or death for which compensation is payable under this act was not proximately caused by the negligence of the employer or his employees and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, such other person having elected not to be bound by this act, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this act, but in such case if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative: Provided, that if the injured employee or his personal representative shall agree to receive compensation from the employer or to institute proceedings to recover the same or accept from the employer any payment on account of such compensation, such employer shall be subrogated to all the rights of such employee or personal representative and may maintain, or, in case an action has already been instituted, may continue an action either in the name of the employee or personal representative or in his own name against such other person for a recovery of damages to which but for this section the said employee or personal representative would be entitled, but such employer shall nevertheless pay over to the injured employee or personal representative all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this act and all costs, attorneys’ fees and reasonable expenses incurred by such employer in making such collection and enforcing such liability.”

Four fundamental facts are established by the pleadings, viz.: (1) the employer, Sell & Kolar, at the time of the injury, was bound by the terms of the Workmen’s Compensation Act of this State; (2) the plaintiff, the employee of Sell & Kolar, who received the injury in the course of his employment, was bound by the terms of said act; (3) the defendant, a third person whose negligence approximately caused the injury, was also bound by the terms of said act; (4) the defendant, at the time of the injury, was engaged in interstate commerce. Under these facts do the terms of the Workmen’s Compensation Act of this State apply and deprive plaintiff of a cause of action against defendant? The question is one of first impression in this State and our research has failed to disclose that it has ever arisen under any similar law elsewhere. It is the rule in this State that where the person injured and his employer were each governed by the' Workmen’s Compensation Act and the tort-feasor and its servants who caused the injury were also under the act, no right of action against the tort-feasor remains to the injured employee and his sole remedy is for compensation to be paid him by his employer. Keeran v. Peoria, B. & C. Traction Co., 277 Ill. 413. It is also the law of this State that the Workmen’s Compensation Act has no application to, injuries received by an employee while engaged in interstate commerce as between himself and his employer, but the employer’s liability in such case is exclusively governed by the Federal Employers’ Liability Act. Staley v. Illinois Cent. B. Co., 268 Ill. 356. The defendant was engaged in two lines of business, interstate and intrastate commerce, and it is apparent that as between the defendant and its own employees, it would be governed by the Workmen’s Compensation Act and by the Federal Employers ’ Liability Act, respectively, according to whether the injury was received by "the employee in the performance of duties connected with interstate or intrastate commerce, but it does not necessarily follow that this principle would extend to an employee of another employer each of whom was bound only by the provisions of the Workmen’s Compensation Act. The Federal Employers’ Liability Act has no application whatever to persons not engaged in interstate commerce at the time the injury was received, and plaintiff could not avail himself of any of the provisions of said act as it had no application to him whatever but only applied to employers and employees engaged in interstate commerce. The provisions of section 1 and 6 of the Workmen’s Compensation Act are absolute and deprive an employee of any right of action or compensation except as provided in said act. Section 29 relates exclusively to cases where the injury to the employee is caused under circumstances creating a legal liability for damages in some person other than the employer. Under section 29 the liability of such third party and the method of enforcing the same are fixed and determined where such person is bound by the terms of the act and no exception is made where the circumstances show that the injury was caused by such third person while the latter was engaged in interstate commerce. We are of the opinion that this act, having set out and defined the rights and liabilities of all parties bound by its terms and having enumerated the exceptions thereto, the doctrine of expressio unius est exclusio allerius applies, and that as between the plaintiff and the defendant the rights and liabilities of each must be determined by the provisions thereof.

There is another reason which, to our minds, is conclusive why appellant’s contention cannot be sustained. This suit is not brought under that provision of section 29 which provides that an employee of an employer, each of whom is bound by the provisions of the Workmen’s Compensation Act, when he receives an injury arising out of and in the course of his employment that was not approximately caused by the negligence of the employer, but was caused under circumstances creating a legal liability for damages on the part of some person other than the employer, such other person not being bound by the act, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of compensation under the act, in which case, out of the judgment obtained the employer shall be reimbursed for the compensation paid to the injured employee, but is prosecuted on the theory that appellant has a cause of action against appellee independent of the Workmen’s Compensation Act. Under section 29, appellant’s employer, Sell & Kolar, has a cause of action against appellee for the amount paid to appellant by virtue of the Workmen’s Compensation Act. If appellant also has an independent cause of action against appellee, then the latter will be subject to a double penalty for the same injuries, a liability to the employer for the amount of compensation paid by it'to its employee and also a liability to the employee him'self. Such a construction of section 29 imposing a double liability upon appellee for the same injury would make it unconstitutional and such could not have been the intention of the legislature.

The judgment of the city court of the City of Pana is affirmed.

Affirmed.


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    Rosamond McNaught, Administratrix, Appellee, v. Walker D. Hines, Director General of Railroads, Appellant.
    1. Railroads, § 750

      —what are questions for jury in action for injuries. Whether the train in question was operated at night at over 50 miles an hour, without warning, with only an oil lamp as a headlight, as the evidence for plaintiff tended to prove, and, if so, whether such operation was negligence which proximately caused the injury complained of under the conditions and obstructions existing in the vicinity of the village crossing in question, and whether decedent was in the exercise of due care before and at the time of the injury, were questions of fact for the jury to determine.
    2. Appeal and error, § 1633*—when improper remarks of counsel are cured. A characterization by attorney for plaintiff in his argument to the jury, of cars and buildings stationed at or near the railroad crossing where plaintiff’s intestate was killed, as a “death trap,” because they obstructed the view of one approaching the crossing, was not sufficient to cause a reversal, where on objection the court held the remark to be improper and then and there instructed the jury not to consider it.
    3. Death, § 67*—when verdict is not excessive. A verdict for $9,000 in an action against a railroad was not excessive, where decedent was a vigorous, energetic man 55 years old, earning $185 per month.
    4. Workmen’s Compensation Act, § 4*—when Workmen’s Compensation Act applies. A demurrer to a special plea, in an action against a railroad for the death of a traveling salesman, setting up that both decedent and his employer had elected not to be bound by the Workmen’s Compensation Act, but that decedent was under the operation of the act, because engaged in an extrahazardous business, was properly overruled, where, even if it were conceded that plaintiff’s employer came under the act, the decedent could not have been said to have been employed in a branch of his employer’s service to which the act would apply, as he had nothing to do with the alleged extrahazardous business of the employer.
    5. Workmen’s Compensation Act, § 4*—when extrahazardous occupation is within Workmen’s Compensation Act. In order to place an employee under the extrahazardous provision of the Workmen’s Compensation Act, it is not sufficient,to show that the employer was engaged in an extrahazardous business, but it must be further shown that the employee, at the time of the injury, was engaged in such occupation, and that such injury arose out of and in course of his employment in such extrahazardous occupation, as some department of the business may be extrahazardous and another not.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    George B. Gillespie, for appellant; L. J. Hackney, F. L. Littleton, A. E. and R. C. DeMange, and George B. and George M. Gillespie, of counsel.
    Sigmund Livingston and W. W. Whitmore, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

By this appeal it is sought to reverse a judgment for $9,000 entered upon a verdict rendered in an action on the case brought in the circuit court of McLean county by Rosamond McNaught, administratrix of the estate of Elza McNaught, deceased, against Walker D. Hines, director" general of railroads of the United States, operating the Cleveland, Cincinnati, Chicago & St. Louis Railway.

The declaration consists of four counts: The first count charges general negligence in the operation of a locomotive engine and train of cars. The second is based upon the claim that the engine and cars were operated at a high and dangerous rate of speed. The third is similar to the second except that it also avers that appellant had placed obstructions consisting of coal cars, box cars and buildings in such close proximity to the crossing that appellee’s intestate was prevented from seeing the approach of the locomotive engine. The fourth charges general negligence and also that said locomotive and train were run at a high and dangerous rate of speed and a failure to give the statutory signals of the approach of the train.

Appellant filed a plea of the general issue and also a special plea. In the special plea it is averred that the Wink Packing Company, the employer of deceased at the time of his death, was a corporation organized under the laws of this State and engaged in an extra-hazardous business in which statutory and municipal ordinances and regulations were imposed for regulating, guarding and placing of machinery or appliances for the protection and safeguarding of its employees; that deceased, Elza McNaught, was killed while engaged in the duties of his employment, and that both employer and employee were, and neither had elected not to be, bound by the provisions of the Workmen’s Compensation Act then in force. A demurrer was filed to this special plea and sustained and the trial was had under the plea of general issue.

’ On January 24, 1918, the deceased was a traveling salesman for the Wink Packing Company of Peoria, Illinois, and at the time of his death was about 55 years of age. On the afternoon of the day mentioned he arrived at the unincorporated village or station of Lilly on an interurban car a few minutes before 6 o’clock. The Wink Packing Company sold meats and their by-products and the object of deceased in going to Lilly was to procure an order for his firm from the firm of Rutledge & Garrett, a customer of his. About forty people lived in Lilly and the buildings there located consist of two stores, a blacksmith shop, an elevator, appellant’s depot, the interurban depot, a few sheds and about twelve houses. Appellant’s railway passes through it running east and west and the interurban electric railway parallels it on the north about 75 feet distant therefrom. A block south of appellant’s tracks an unnamed street runs east and west parallel therewith and ends in Hay street. On the north and south sides of this unnamed street or passageway above mentioned and west of Hay street are located the stores above mentioned. The store of Rutledge & Garrett is located at the southwest corner of the intersection of the unnamed street and Hay street. Running north from this street for a short distance is a cement walk beyond which is a path which runs diagonally in a northeasterly direction crossing appellant’s tracks in the center of Hay street and continuing northeasterly across Hay street to the interurban station, which is north of the interurban tracks and on the east side of Hay street. Hay street itself is not a regularly traveled highway, and has no definite width. Where it crosses appellant’s tracks it is planked to a width of 19 feet. East of Hay street and south of appellant’s tracks extending from west to east are a coal shed, stock pens, comcrih, scale office, engine house, elevator and another corncrib. In addition to these buildings, at the time,,of the injury, three coal cars stood on the sidetrack just north of the coal shed and projected about 13 feet into the public crossing.

The evidence introduced on behalf of appellee tended to show that after appellant procured his order from Rutledge & Garrett he started north on Hay street towards the interurban station for the purpose of taking an interurban car then shortly to be due; that the view of the approaching train from the east on appellant’s tracks to a person going north on Hay street towards the crossing would be more or less obstructed by the coal cars extending into the street and the building above mentioned located on appellant’s right of way south of its tracks; that as the deceased approached the crossing, appellant’s train approached the same from the east at a speed of between 50 and 60 miles per hour; that the statutory signals of sounding the whistle and ringing the bell were not given; that it was dark and the headlight on the approaching engine was an oil lamp. There was some conflict in the evidence as to the giving of the signals and as to the speed of the train. There were no eyewitnesses to the accident. Appellee offered to prove on the trial that deceased was a careful and prudent man, but such proof was rejected by the court. Whether the train was operated in the manner which the evidence for appellee tended to prove, and, if so, whether such operation of the train was negligence which approximately caused the injury complained of under the conditions existing in the vicinity of the crossing, and whether the deceased was in the exercise of due care before and at the time of the injury were questions of fact for the jury to determine.

Some criticism has been made to remarks of counsel for appellee in his argument to the jury, only one statement of which is of sufficient importance to mention here. Counsel characterized the cars and buildings standing at or near the crossing, because they obstructed the view of one approaching the crossing from the south, as a “death trap.” On objection the court held the remark to be improper and then and there instructed the jury not to consider it. In view of the ruling of the court, the error in the making of this remark was not of such gravity as to cause a reversal of the judgment. The deceased was 55 years of age at the time of his death, was a vigorous, energetic man, was earning $185 per month and the amount of the verdict was not excessive. It is alleged that the giving of instructions Nos. 1 and 6 on behalf of appellee was error. These instructions have not been approved in other cases. It is likewise urged that the trial court erred in not giving twelve instructions offered on behalf of appellant. The court gave, on behalf of appellant, twenty-one instructions, which we regard as an ample number in which to present any conceivable rule of law favorable to appellant’s defense.

It is very strenuously insisted by counsel for appellant that the trial court erred in sustaining the demurrer to the special plea. We cannot agree with this contention. If it be conceded that'the plea states sufficient facts to place the Wink Packing Company under the operation of the Workmen’s Compensation Act, yet the deceased could not have been said to have been employed in a branch of that company’s service to which said act would apply. He was a traveling salesman only and had nothing to do with the preparation of the meats or the manufacture of the by-products. His duties did not call him to the packing house except occasionally and then only to the office located therein. He was engaged only in the, selling branch of Ms employer’s business which was not extrahazardous. In the case of Mattoon Clear Water Co. v. Industrial Commission, 291 Ill. 487, the court said: “The fact that the defendant in error was maintaining a structure and that it had machinery at its plant is not controlling here. Plaintiff in error was not at the time of his injury engaged in any .part of the business of defendant in error that had to do with the maintenance or operation of the plant or pipe lines. Defendant in error had not elected to come under the act, and the injury sustained by plaintiff in error is not one arising out of or in the course of any employment declared by the act to be extrahazardous. Because some other employees of defendant in error may have been engaged in some other part of the work that was extrahazardous would not change the character of the employment of plaintiff in error or bring him within the provisions of the act. This question was discussed at length and this conclusion reached in Vaughan’s Seed Store v. Simonini, 275 Ill. 477 [14 N. C. C. A. 1075]; Seggebruch v. Industrial Commission, 288 Ill. 163, and Brennan v. Industrial Commission, 289 Ill. 49.” It is not sufficient to show that the employer was engaged in an extrahazardous business, but it must be further shown that the employee, at the time of his injury, was engaged in an extrahazardous occupation and that such injury arose out of and in the course of employment in- such extrahazardous occupation. Bowman Dairy Co. v. Industrial Commission, 292 Ill. 284. In the case last mentioned the court also held: “It is well settled in this.State that while some part or department of the business of an employer may be extrahazardous under the statute, still, if the employee’s duties were not connected with or incident to the, extrahazardous part of the business of the employer, he is not within the provisions of the Compensation Act.” The Compensation Act refers to the business and not to the person of the employer and does not extend to separate lines of business having no connection with extrahazardous. occupations. Sanitary District v. Industrial Board, 282 Ill. 182. A traveling salesman of meats, having no connection with the manufacture or preparation of the products which he sells, is not engaged in an extrahazardous occupation and therefore is not bound by the terms of the Compensation Act and section 29 of said Act [Callaghan’s 1916 Stat. ][ 5475(29)] has no application in such a case.

We find no reversible error in the record and the judgment of the circuit court is affirmed.

Affirmed.


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    Roland R. Stafford and Edward C. Broehl, trading as Stafford & Broehl, Appellees, v. W. V. Wills, Appellant.
    1. Brokers, § 75

      —when defense to action for compensation is sufficiently pleaded. An affidavit of merits in an action to recover commissions for the sale of farm lands set up a good defense, which alleged that defendant had never agreed to pay any commissions for any land; that the purchaser was not procured by plaintiffs but that the lands were sold by others having no connection with plaintiffs, and that the latter were not the procuring cause of the sale.
    2. Judgment, § 161*—when default will he set aside. Bearing in mind the rule that after a default has been actually taken the judgment will not be lightly set aside because of the negligence of the attorney for the defaulted party, the refusal to extend the time to file an affidavit of merits which presented a good defense was an abuse of discretion where, although the attorneys for defendant were negligent in not asking for the extension when they filed a plea of the general issue, they did so before the entry of default.
    3. Attachment, § 12*—what constitutes nonresidence. A defendant was a nonresident within the meaning of the Attachment Act, where immediately after his marriage he and his family went to Missouri and the children attended school there, and where 2 years thereafter he removed to Florida and rented a house and where he still resided when the attachment in question was brought, and where he had no home in this State and had not lived in it as a resident since his marriage, but where defendant was a stockholder in an Illinois corporation and a partner in a firm located there and where his father’s residence, in this State, contained a room which defendant occupied when here.
    Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded with directions.
    Opinion filed October 27, 1920.
    A. D. Cadwallader and William and Barry Mumford, for appellant; Guy A. Thompson, of counsel.
    Alonzo Hoff and Harold F. Trapp, for appellees.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellees brought an action in assumpsit against appellant to recover commissions for services performed in connection with the sale of certain farm lands located in Pike county, Illinois. An attachment in aid was sued out at the same time and the writ was levied upon certain real estate of appellant. Appellant traversed the allegations in the affidavit for attachment and filed a plea of the general issue to the declaration in assumpsit. The cause was submitted to the court for trial and judgment was rendered in favor of appellees as by default for $30,400 and the attachment was sustained. The declaration consisted of the common counts only. To the declaration was attached a bill of particulars and an affidavit of amount due by which it is shown that the demand of appellees is based upon services performed in procuring the sale of 608.84 acres of land to Jacob Lauer at $50 per acre, making the total amount of the claim $30,400.

On March 15, 1920, before the trial of the cause was commenced, appellees made a motion for a judgment as by default because appellant had failed to file an affidavit of merits with his plea. Thereupon appellant made a cross motion for leave to file an affidavit of merits instanter and filed an affidavit of his counsel in support of said cross motion. The cross motion was overruled. Appellant thereupon made a motion to set aside the order overruling his cross motion and for leave to file additional affidavits instanter in support of said cross motion. The court granted leave to file additional affidavits which were filed, but the court again refused to grant appellant’s cross motion for leave to file his affidavits of merits. On March 16, 1920, the court sustained the motion of appellees for judgment as by default on the ground of the failure of appellant to file an affidavit of merits and proceeded to hear testimony on the question of damages with the result that the judgment heretofore mentioned was rendered.

The affidavit of merits which appellant offered to file instanter states that appellees never, at any time, performed any work or services for the defendant at his request in connection with the sale of farm lands located in Pike county or elsewhere; that no lands located in Pike county were at any time sold to the Jacob Lauer named in the bill of particulars by appellees or either of them for the sum of $200 per acre or any other sum at the request of appellant; that appellant never, at' any time, either verbally or in writing, agreed to pay to appellees a commission for procuring a purchaser for any lands an amount of all above or in excess of $150 per acre or any other sum; that the said Lauer was not procured by the plaintiffs or either of them to buy said lands at any price; that said lands were sold by persons other than appellees who had no connection with the latter in any form or manner and appellees were not the procuring cause of said sale. This affidavit of merits stated a good defense to the suit. Harrison v. Rosehill Cemetery Co., 291 Ill. 416. The court refused appellant the right to file the affidavit of merits not because a good defense was not set out therein, but on the ground that appellant had not shown good cause why the affidavit had not been previously filed. The cause for the delay, as shown in the original affidavit of appellant’s counsel in support of his cross motion, was that it had been counsel’s intention to file an affidavit of merits as provided by the statute, but owing to the pressure of business it had been everlooked. When leave was granted to appellant to file additional affidavits in support of his cross motion, he presented another affidavit by one of his counsel, which is as follows:

“William Mumford being first duly sworn, on his oath says: That William and Barry Mumford, of Pittsfield, Illinois, and A. D. Cadwallader, of Lincoln, Illinois, are and have at all times since the filing of the declaration herein been the only attorneys for the defendant in the above entitled cause; that the plea of the defendant was prepared by William and Barry Mumford, at Pittsfield, Illinois, and was by them sent to the said A. D. Cadwallader at Lincoln, Illinois, and was filed in this cause by said Cadwallader ; that at the time and before and since said plea was prepared and filed the said defendant was much of the time casually absent from the State of Illinois on business.

“That at and before and for a long time after the making and filing of said plea the said attorneys for the defendant had not had the opportunity to fully inform themselves as to the specific facts in and constituting said defense, bnt had only the general information necessary to enable them 'to prepare the plea; that at and for several weeks after said dates the attorneys for the defendant had not had the opportunity to inspect and examine the documentary evidence in this case; the same being in the personal possession of the defendant which documentary evidence was and is essential to enable the preparation of an affidavit under the terms and requirements of the statute above recited; that at this time said attorneys have had an opportunity and have made particular examination and inquiry into the facts of the case and have made particular examination of the said documentary evidence; that defendant himself and his attorneys are all now sufficiently advised of the facts in the case to enable them to say on oath that the defendant has a good defense to the whole of the claim of the plaintiffs and to specify the nature of such defense in compliance with said Statute.

“Wherefore, the defendant prays for leave to file an affidavit in support of his plea in compliance with section 55 of the statute as now amended. ’ ’

The rule is universal that after a default has been actually taken and a judgment thereby has been rendered in favor of a party litigant, the judgment will not be set aside because the default was brought about through the negligence of the attorney for the defaulted party. Hartford Life & Annuity Ins. Co. v. Rossiter, 196 Ill. 277; Staunton Coal Co. v. Menk, 197 Ill. 369; Cramer v. Commercial Men’s Ass’n, 260 Ill. 516. Judgments will not be lightly disturbed and will only be opened up or set aside under few and restricted conditions. A judgment imports solemnity and stability. On the other hand, it is the policy of the law, and of the courts in administering it, to give parties to a suit every reasonable (opportunity to present their cause of action or defense so that the controversy may be heard upon its merits. Upon this principle our statute of amendments has received most liberal construction and, as a general proposition, a party may be permitted to amend any pleading almost at any time before final judgment. The plea of general issue in this case has been filed in' apt time. Counsel for appellant had overlooked the fact that an affidavit of amount due was attached to the declaration and had not, at the time the plea was filed, sufficient information from their client, who was much of the time out of the State, to properly draft an affidavit of merits. However, before any default was actually taken for the want of an affidavit of merits, a cross motion was made for leave to file one. No harm could possibly have resulted to the appellees by the allowance of this motion. No delay in the trial of the case was asked for by appellant and he offered to file the affidavit instanter. While the statute provides that the court may, upon good cause shown, extend the time for filing an affidavit of merits, these words should not. receive a strict construction, and, while a trial court should decline to grant a motion for an extension of time to file an affidavit of merits if it appears that the motion is not made-in good faith (Bradley v. Progressive Metal & Refining Co., 205 Ill. App. 552), yet where such a motion is made before any trial is entered upon and before any default has been taken for the want of such an affidavit and the affidavit preseats a good defense to the cause of action and is offered to be filed instanter.in good faith, in our opinion, in the interests of justice, the same should be allowed. In the present case, while counsel for appellant were undoubtedly negligent in not asking for an extension of time in which to file an affidavit of merits at the time they filed the plea, yet they did ask for this extension before any default for want of such an affidavit was entered and before any possible harm or disadvantage to appellees by reason thereof had taken place. We think the trial court, in the proper exercise of its discretion under the circumstances shown, should have granted the cross motion of appellant for leave to file the affidavit of merits.

Appellant made a motion for a rule on appellees to file a sufficient attachment bond. The trial court, after a full hearing upon this question, found the bond to be sufficient and overruled the motion. The evidence disclosed that, at the. time of the hearing of the motion, the sureties on the attachment bond were amply qualified.

Three grounds for an attachment are set out in the affidavit therefor as follows: (1) That appellant is not a resident, of this State, but is a resident of the State of Florida; (2) that he is about to remove his property from this State to the injury of appellees; (3) that he is about fraudulently to conceal, assign or otherwise dispose of his property or effects so as to hinder or delay his creditors. In 1916, appellant married a widow who had three children, and, immediately after his marriage, he and his family went to St. Louis, Missouri, where they lived in an apartment and the children attended school in that city. In October, 1918, he and his family removed to West Palm Beach, Florida, rented a house there and they still reside there. He owns no home in Illinois and has not lived in this State as a resident thereof since his marriage. His contention is, however, that, because he is a stockholder in an Illinois corporation and also a partner in a firm located in this State and that his father’s residence, in which there is a room which he always occupies when there, is in this State, that he is still a resident of the State of Illinois. He testified that he intended to live in Florida until the work with which he was occupied was finished, which would be at some indefinite time in the future. A person is a nonresident within the meaning 'of the Attachment Act who, at the time the writ was issued, had no local habitation or place of abode within this State, but was actually residing without the State permanently, or at least for an indefinite period. Witbeck v. Marshall-Wells Hardware Co., 188 Ill. 154. This construction of the act is well stated in the case of Jenks v. Rounds, 87 Ill. App. 284: “Absence from the State and having a fixed abode in another place, with the intention to remain permanently, at least for a time, for business or other purposes, will constitute nonresidence, even if there be an intention to return at the expiration of the time of residence in the foreign State.” One good cause for attachment is sufficient, and it is unnecessary to mention the evidence introduced to sustain the second and third grounds. The court did not err in finding the issues in the attachment proceeding in favor of appellees.

What has been said disposes of the other questions raised. For the reason that the court erred in refusing to grant the appellant leave to file his affidavit of merits and for entering judgment against appellant as by default, the judgment is reversed and the cause remanded, with directions to grant appellant’s cross motion for leave to file the affidavit of merits in support of his plea.

Reversed and reminded with directions.


author: Mr. Justice Graves

text:
    The People of the State of Illinois, Defendant in Error, v. Lloyd McGinnis, Plaintiff in Error.
    1. Chattel mortgages, § 237

      —when information insufficient to charge crime. An information for a violation of the Chattel Mortgage Act, sec. 7, ch. 95, Rev. St (J. & A. ¶ 7582), providing that any person having conveyed any personal property who shall, during the existence of such title or lien, sell such property without the written consent of the holder of “such incumbrance” shall be guilty of a misdemeanor, etc., was fatally defective, which failed to allege the existence of any mortgage, or conveyance having the effect of a mortgage, made pursuant to the Chattel Mortgage Act of this State, covering the property which defendant was charged to have sold in violation of said section.
    2. Chattel mortgages, § 237*—when information is defective. Under the rule that where the punishment that may be inflicted is limited to the value of the property sold it is necessary to aver and prove what such value is, an information for violating section 7 of the Chattel Mortgage Act, ch. 95, Rev. St. (J. & A. ¶ 7582), making the sale of property covered by a chattel mortgage without the consent of the mortgagee a misdemeanor, was fatally defective which contained no averment that the property which defendant was charged with having sold had any value whatever.
    3. Chattel mortgages, § 228*—when conviction is improper. A conviction under an information for violating section 7 of the Chattel Mortgage Act, ch. 95, Rev. St. (J. & A. ¶ 7582), providing that any person having conveyed property who shall, during the existence of such title, sell such property without the written consent of the holder of such incumbrance shall he guilty of a misdemeanor, was improper,, where the proof showed beyond dispute that the property for the sale of which defendant was convicted was not in the State when the so-called chattel mortgage was made and could therefore not have been the property covered by the mortgage described in the information.
    4. Chattel mortgages, § 236*—when criminal liability arises. Section 7 of the Chattel Mortgage Act, ch. 95, Rev. St. (J. & A. ¶ 7582), making it a misdemeanor to convey personal property incumbered by chattel mortgage, without the consent of the holder of the incumbrance, applies only when the property in question is mortgaged pursuant to the provisions of our. Chattel Mortgage Act.
    Error to the County Court of Fulton county; the Hon. Hobart S. Boyd, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed.
    Opinion filed October 27, 1920.

      Fred H. Snyder and A. E. Taff, for plaintiff in error.
    Reed F. Cutler and Chiperfield & Chiperfield, for defendant in error.

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

   Mr. Justice Graves

delivered the opinion of the court.

The State’s Attorney of Fulton county filed in the county court of that county an information in which he attempted to charge plaintiff in error with having violated the provisions of section 7 of chapter 95, Rev. St, commonly known as the Chattel Mortgage Act (J. & A. ¶ 7582). Plaintiff in error was arrested, tried and convicted and was sentenced to pay a fine of $1,000 and be confined in the county jail for a period of 60 days. . He prosecutes this writ of error to reverse that judgment.

Section 7 of chapter 95, Rev. St., is a penal statute and must be strictly construed. The manifest purpose and intent of the legislature in passing it, as expressed by the language employed in it, cannot be broadened by implication. The Chattel Mortgage Act in the sections preceding section 7 provides what shall constitute a chattel mortgage and how it shall be made, acknowledged and recorded; then section 7 provides that:

“Any person having so conveyed any personal property who shall, during the existence of such title or lien, sell * * * such property * * * without the written consent of the holder of such incumbrance, shall be guilty of a misdemeanor, and on conviction may be fined in a sum not exceeding twice the value of .the property so sold or disposed of, or confined in the county jail not exceeding one year, or both, at the discretion of the court.”

Under that section it is only when the property in question is mortgaged pursuant to the provisions of our Chattel Mortgage Act that its sale without the consent in writing of the mortgagee is made a misdemeanor. The words in that section which are printed above in italics, “so conveyed,” “such title or lien” and “such incumbrance,” clearly have reference to the conveyance, title and incumbrance provided for by the previous sections of the Chattel Mortgage Act.

The State’s Attorney in the information has not alleged the existence of any mortgage, or conveyance having the effect of a mortgage, covering the property which defendant is charged to have sold in violation of said section 7 that he even pretends was made pursuant to the Chattel Mortgage Act of this State. Without such an averment no crime or misdemeanor is charged and without proof of such fact no crime or misdemeanor is shown' to have been committed.

Among the penalties provided by said section 7 is a fine not to exceed twice the value of the property sold. There is no averment in the information that the property which plaintiff in error is charged with having sold had any value whatever, or, if so, what that value was. Where the punishment that may he inflicted is limited by the value of the property sold, it is necessary to aver and prove what such value is. Brown v. People, 173 Ill. 34.

The information charges that the mortgage relied on to deprive plaintiff in error of the right to sell the property in question was made on July 26, 1917, and that the property covered by it was then in Fulton county, Illinois. The proof shows beyond dispute that the property for the sale of which plaintiff in error was convicted was not in Fulton county, nor in the State of Illinois when the so-called mortgage was made, nor until August 3,1917, and therefore cannot he the property that was covered by the mortgage described in the information. The verdict is therefore manifestly contrary to the evidence.

Because the information does not charge plaintiff in error with the commission of acts that amount to a violation of section 7 of the Chattel Mortgage Act of this State, and the proof does not show the commission by him of any such acts, the judgment of the trial court is reversed

Judgment reversed.


text:
    The People of the State of Illinois, Defendant in Error, v. John A. Savage, Plaintiff in Error.
    1. Criminal law, § 62

      —when notice must he given. A petition for change of venue was properly refused where no sufficient notice was given to the State’s Attorney, as required by Rev. St. ch. 146, sec. 23 (J. & A. ¶ 11509).
    2. Criminal law, § 112*—-when proof of venue is essential. The proof of the venue as laid in an indictment is as essential as the averment of it and must be made by the State as part of its case to warrant a conviction.
    3. Criminal law, § 109*—what matters must he proved. In a prosecution for selling liquor in the City of Mattoon, proof that the Town of Matoon was anti-saloon territory at the time charged was not proof that the city was anti-saloon territory, and although the court might judicially know that part of such city is in the Town of Mattoon and part of it is in the Town of Lafayette, it could not without proof judicially know in what part of the City of Mattoon was the place where the sales took place.
    4. Criminal law, § 595*-—when conviction will he reversed. Failure to prove the venue in a prosecution for selling liquor in anti-saloon territory was reversible error.
    Error to the City Court of Mattoon; the Hon. John McNutt, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed October 27, 1920.
    T. N. cofer, for plaintiff in error.
    Emery Andrews, for defendant in error.

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

   Mr. Justice Graves

delivered the opinion of the court.

Plaintiff in error was indicted, tried, convicted and sentenced for selling intoxicating liqnor in the City of Mattoon while that city was anti-saloon territory.

A petition of plaintiff in error for a change of venue from the judge of the city court of Mattoon was properly refused because the record shows no sufficient notice to the State’s Attorney that such an application was to be made. Section 23, ch. 146, Rev. St. (J. & A. ¶ 11509).

The indictment originally contained four counts. One of those counts was quashed by the court on motion of plaintiff in error. The verdict of guilty in manner and form as charged in the indictment was not a conviction under the count that had been quashed and the record of the judgment correctly shows a conviction on but three counts of the indictment. Several references have been made to what the judge’s docket shows transpired in this case. The judge’s docket is no part of the record in this case. If the record does not follow the judge’s notes it is within the power of the trial court to correct the record, but this court is, in the first instance, in no way concerning regarding any variance between the judge’s docket entries and the record as written by the clerk.

The indictment charges that the sales of intoxicating liquors mentioned in it were made in the City of Mattoon, while it, the City of Mattoon, was anti-saloon territory. The proof of the venue as laid in the indictment is as essential as the averment of it and must be made by the State as a part of its case in order to warrant a conviction. Moore v. People, 150 Ill. 405; Rice v. People, 38 Ill. 435; Sattler v. People, 59 Ill. 68; Dougherty v.. People, 118 Ill. 160.

There was no proof in this record that the City of Mattoon was anti-saloon territory at the time plaintiff in error is charged with selling intoxicating liquor there, or at any other time. There is proof that the Town of Mattoon was then anti-saloon territory, but there is no proof that the City of Mattoon or any part of it is in the Town of Mattoon. While probably courts are authorized to take judicial notice of the boundaries of towns and cities and are bound to know that part of the City of Mattoon is in the Town of Mattoon and part of it is in the Town of Lafayette, they cannot without proof judicially know in which part of the City of Mattoon the place where the sales took place. There is ample proof that the sales charged were made and that they were made in the City of Mattoon, but there is no proof whether they were made in the Town of Mattoon or the Town of Lafayette or that the Town of Lafayette was then anti-saloon territory. It is extremely unfortunate that this judgment must be reversed and the cause retried for the reason that proof so easily obtainable and so absolutely necessary should have been omitted, but no other course is open to this court.

Other errors are complained of, but will likely not be repeated on a retrial of the cause and will therefore not be discussed. Because the venue was not proven the judgment is reversed and the cause is remanded for another trial.

Reversed and remanded.