text:
    Minnie Woods, Appellee, v. Village of Madison, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Damages, § 179

      —when evidence admissible to show extent of personal injuries. In an action by a married woman for personal injuries, testimony of plaintiff to the effect that she used to have eight hoarders and could do their washing and that she is now unable to her washing, etc., held admissible to show the extent of her injury.

      Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Minnie Woods against the Village of Madison, to recover for personal injuries sustained by plaintiff on account of the negligence of defendant in suffering its sidewalk to be out of repair. From a judgment in favor of plaintiff for one thousand five hundred dollars, defendant appeals.
    Appellant claims: Improper evidence was admitted; that the court erred in giving plaintiff’s second instruction, and that the damages are excessive.
    Warnock, Williamson & Burroughs, for appellant.
    M. R. Sullivan, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XTV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

2. Husband and wife, § 194 —when instruction as to damages for personal injuries sustained by wife not misleading. In an action by a married woman for personal injuries, an instruction which states that the jury in estimating plaintiff’s damages may consider “the effect of such injuries, if any, upon her ability to perform her usual duties,” held not misleading as allowing recovery for household duties such as a wife usually performs for her husband and family.

3. Husband and wife, § 194 —evidence inadmissible in action by wife for personal injuries. In an action by wife for personal injuries, evidence as to her inability to hire her work done held properly excluded.

4. Damages, § 132 —when excessive for injury to wrist. Verdict of one thousand five hundred dollars for injury to wrist not of a permanent character, held excessive to the extent of five hundred dollars, and judgment was affirmed on condition of a remittitur of that amount.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    John Vyskocil, Appellee, v. Edwardsville Home Trade Coal Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by John Vyskocil against Edwardsville Home Trade Coal Company to recover for injuries sustained by plaintiff, alleged to have resulted from the wilful failure of defendant to comply with the statute, in that the mine examiner failed to properly mark the dangerous condition of the roof of the mine. From a judgment in favor of plaintiff for nine hundred and fifty dollars, defendant appeals.

      Abstract of the Decision.
    Mines and minerals, § 176

      —when evidence insufficient to show wilful negligence. In an action for personal injuries sustained by plaintiff while working in defendant’s mine, alleged to have been caused by -the wilful failure of defendant to mark the dangerous condition of the mine, evidence held insufficient to show such a dangerous condition of the mine as would render defendant liable for wilful negligence.
    C. H. Burton and M. U. Hayden, for appellant.
    Geers & Geers, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number»

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    Josef Groffinger, Appellee, v. The Metropolitan Life Insurance Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Rehearing denied October 28, 1913.
    Statement of the Case.
    Action by Josef Groffinger against the Metropolitan Life Insurance Company, a corporation, to recover as beneficiary on a policy of life insurance issued by defendant to Erzsebet Groffinger. From a judgment in favor of plaintiff for six hundred and twenty dollars, defendant appeals.
    William P. Launtz, for appellant.
    N. C. Lyrla, for appellee.

      Abstract of the Decision.
    1. Insurance, g 663*—sufficiency of evidence to defeat policy for false statements in application. In order to defeat recovery on a policy for false representations made in the application, the evidence must show that the representations were material, and known to be false by the insured and were made to deceive the company, and such questions are to be determined by the jury.
    2. Insurance, § 336*—when false answers inserted in application will not avoid policy. False answers concerning physical condition of applicant written in application by the agent when applicant indicates to the agent that she suffered with pains over the heart, held not to avoid policy.
    3. Insurance, § 366*—when company cannot claim policy to be void ab initio. Insurance company cannot claim that false answers in the application rendered the policy void ab initio where it has failed to return or has not offered to return the premiums paid.
   Mr. Justice Thompson

delivered the opinion of the court.


text:
    Sarah Thompson, Administratrix, Plaintiff in Error, v. Kinloch Long Distance Telephone Company of Missouri, Defendant in Error.
    1. Roads and bridges, § 196

      —when instruction on liability of telephone company for placing poles in road not improper. In an action by an administrator to recover damages for the death of deceased, alleged to have been caused by the negligence of defendant in placing a telephone pole in the road so that a cart in which deceased was riding came in contact therewith and deceased was thrown out and killed, an instruction to the effect that it is immaterial whether the pole was placed in the road with the consent of the highway commissioners or other public authorities, held proper where plaintiff’s declaration does not allege the road is a public highway.
    2. Roads and bridges, § 2

      —public and private roads. A private roadway, although used by the public, is not necessarily a public road in contemplation of the statute.
    3. Roads and bridges, § 196

      —when declaration does not allege road is a public road. Allegation that a road is used by the public is not an allegation that it is a public road, and the fact that tho court admitted evidence offered to show that the road was a public one does not broaden the allegations of the declaration.
    Error to the Circuit Court of Clay county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Schaefer & Kruger and T. R. Mould, for plaintiff in error.
    Wm. R. Orthwein and Kramer, Kramer & Campbell, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

Plaintiff in error, as administratrix of the estate of her deceased husband, brought this suit against defendant in error to recover damages for alleged negligence in placing a telephone pole in the road so that the cart in which her husband was riding came in contact with it and he was thrown out and killed.

Defendant in error is the Kinloch Long Distance Telephone Company of Missouri. There is a small unincorporated village by the name of Donkville, located in Madison county about two miles north of the city of Collinsville. There are about forty houses in the village. At the west side of the village is a coal mine. There is a forty foot road running north from Collins-ville to Donkville and on beyond. At Donkville a road leads directly west to said coal mine. At the place where the road leaves the Collinsville road and goes west, defendant in error had placed one of its poles. This is the pole the placing of which, it is claimed, caused the injury complained of. The pole was placed at the southerly corner line of said road, about six feet from the corner of the fence, which inclosed a lot, on the east side of which lot is the Collinsville road and the north side the road in question. In making the turn west at this point the beaten track ran within about two feet of the said pole. This pole had been maintained there for six or seven years prior to the accident. On the morning of the accident the plaintiff’s intestate was riding alone in a two-wheeled cart drawn by a horse along the road in question, driving northwestward in the beaten track, and when within a few feet of the angular turn in the road a tin can or bucket became fastened to the tire of the wheel of his cart and made a noise by striking the ground, which caused the horse to jump sideways to the left and the wheel of the cart struck said pole and threw him to the ground and injured him so that within a few days he died.

The trial resulted in a verdict and judgment in bar for defendant. Plaintiff appeals.

The errors assigned on the ruling of the court concerning the admissibility of evidence and the giving of instructions do not require serious consideration here outside of defendant in error’s fourth instruction. This instruction is as follows: ‘ The Court instructs the jury that even though you may believe from the evidence that the pole in question was placed in the road in question without the consent of the Highway Commissioners or other public authorities, still the plaintiff in this case cannot complain of that fact and so far as this case is concerned that fact is wholly immaterial. ’ ’

If the road in question was not a public road the Highway Commissioners would have no jurisdiction over it. A private roadway, although used by the public, is not necessarily a public road in contemplation of the statute. This instruction challenges both the pleadings and the evidence. On examination of the plaintiff’s declaration we find it nowhere alleges that the road is a public highway. It is referred to in the declaration simply as a road used by the public. The fact that the court admitted evidence offered by plaintiff in her attempt to show that said road was a public road could not be regarded as sufficient to broaden the allegations of the declaration so as to include a public road, even if the proofs established such fact.

There is a wide distinction between roads which are under the control of the public authorities and designated as public roads and that class of roads known as private roads or neighborhood roads and which are under the supervision of no public authorities.

It is a settled rule of law that a party cannot make one case by his declaration and a different one by the evidence.

The declaration does not support the contention of plaintiff in error that the placing of the pole in the public highway created a nuisance per se. The giving of the fourth instruction was not error considering the state of the pleadings. Had the declaration charged the negligent and illegal placing of the pole in a public highway the criticism of the instruction would be well made, for the reason that the question whether the road was a public one and whether authority had been given to so place it would be for the jury to determine.

However, the case seems to have been tried by the plaintiff in error on the theory that it was a public road, and the questions whether the road was a public one and also whether the defendant in error, without authority, negligently placed a pole in the public road were submitted to the jury, and the jury found adversely to plaintiff on both questions. The instructions were fully, as favorable to plaintiff as the issues and proofs warranted.

It would serve no good purpose to enter upon a discussion of all the points raised in the argument as to what constitutes a public road, by dedication or user, since under the pleadings and evidence the verdict was clearly right, and the judgment of the lower court will have to be affirmed.

Judgment affirmed.


text:
    Brookport National Bank,, Appellant, v. A. B. Smith, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    Principal and surety, § 60

      —when payments by debtor need not be applied on debt secured. In an action by payee against the surety on a promissory note, an agreement between payee and surety whereby the payee in consideration the surety signs as such, agrees to refrain from requiring principal debtor to make payments on other indebtedness of principal debtor held by payee, construed as not requiring voluntary payments of principal to be credited on the note.
    Appeal from the Circuit Court of Massac county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Brookport National Bank against A. B. Smith in assumpsit to recover from defendant as surety on a promissory note for $272.18 and interest. From a judgment in favor of plaintiff for $25.90, plaintiff appeals.
    Fred R. Young, for appellant.
    C. L. V. Mulkey, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.


author: Mb. Justice Thompson

text:
    P. B. Cheaney, Appellee, v. L. A. Manewal, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Attorney and client, § 135

      —when fee of seven hundred and fifty dollars is not excessive. Where an attorney at law is employed to render services in the purchase of a bakery company and is engaged almost constantly for a month in investigating the title, negotiating with a trustee in charge of the property, arranging with creditors of the company and attending to a large number of details about the business to obtain a safe purchase, which proves profitable to the client, under conflicting evidence as to the compensation agreed on and the value of the services a verdict for seven hundred and fifty dollars will be sustained.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by P. B. Cheaney against L. A. Manewal to recover as an attorney at law for legal services rendered in connection with the purchase of bakery and business. Prom a judgment for plaintiff for seven hundred and fifty dollars, defendant appeals.
    E. W. Eggman and W. J. N. Moyers, for appellant.
    Johnson-Johnson and W. L. Coley, for appellee.

      See Illinois Notes Digest, Vola, XI to XIV, same topic and section number.

   Mb. Justice Thompson

delivered the opinion of the court.


text:
    Thomas Ballance, Appellee, v. Woodmen’s Casualty Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Instructions, § 129

      —requisites on directing verdict on proof of facts. An instruction in effect directing a verdict for the plaintiff if the facts referred to in the instruction are found in favor of the plaintiff should contain all the facts which would authorize a verdict.
    2. Instructions, § 24

      —when improper to refer to declaration. The practice of giving an instruction informing the jury that they may refer to the declaration to determine the issues to be tried, while not alone a reversible error is not commendable,
    3. Instructions, § 24

      —when instruction referring to insufficient declaration is improper. In an action on an accident insurance policy, an instruction in effect directing a verdict for plaintiff if facts referred to are found in favor of plaintiff and permitting the jury to refer to'the declaration to determine the issues is improper, where the declaration did not allege that plaintiff suffered a disability “caused solely and exclusively by external, violent, accidental and involuntary means,” such facts being raised by a special plea, and the instruction cannot be cured by other instructions.

      Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Thomas Bailance against the Woodmen’s Casualty Company, a corporation, to recover on an accident insurance policy for accidental injuries sustained. From a judgment for plaintiff, defendant appeals.
    Alonzo Hoff and Kramer, Kramer & Campbell, for appellant.
    C. B. Thomas, D. A. Newby and T. T. Hinde, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

4. Insurance, § 609*—who must prove cause of injury. The plaintiff in an action on an accident insurance policy has the burden to prove a provision relating to disability “caused solely and exclusively by external, violent, accidental and involuntary means” whether such facts are put in issue by a special plea or not.


text:
    Ella C. Voorhees, Appellant, v. Carl Schrieber, Appellee.
    Justices of the peace, § 192

      —with whom appeal bond in forcible detainer must be filed. On an appeal by a defendant in forcible detainer, the provisions of the Forcible Detainer Act, J. & A. Ifli 5859, 5860, requiring the amount of an appeal bond to be fixed by the justice of the peace and to be filed with the justice, must be complied with, and it is not sufficient to file the bond with the clerk of the Circuit Court in an amount fixed by the clerk.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded with directions.
    Opinion filed October 9, 1913.
    J. V. E. Marsh, for appellant.
    E. B. Glass, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

Appellant brought an action of forcible detainer against the appellee, before a justice of the peace at Alton, and recovered a judgment.

Appellee appealed. Appellee filed no bond with the justice of the peace. He did file what he claims was an appeal bond with the clerk of the Circuit Court of Madison county within five days of the rendition of the judgment by said justice. There is no evidence in this record showing that appellee filed any appeal bond with the justice of the peace or even made attempt to do so. No effort appears to have been made by appellee to comply with that provision of the Forcible Detainer Act (J. &. A. ft 5859), which requires the filing of an appeal bond with the justice of the peace, within five days of the rendition of the judgment, in order to perfect an appeal. The statute (J. & A. ft 5860) also requires the justice of the peace to fix the amount of such bond. No one but the justice is authorized to fix the amount of such bond. Fairbank v. Streeter, 142 Ill. 226.

The bond which appellee filed with the circuit clerk was placed at four hundred dollars. Who fixed the amount? And on what sort of a showing or by whom was the fact as to the required amount made known?

The real purpose of the statute requiring the amount of the bond to be fixed'by the trial court would be defeated if the party seeking to appeal from a judgment in forcible detainer cases could present his bond in such sum as he pleased to the Appellate Court and obtain a supersedeas thereon.

This case does not come within that class where an attempt is made in good faith to comply with the legal requirements or where-there has been a substantial compliance. In this case the filing of a bond with the clerk of the Circuit Court indicated more of a disregard for the statute than an attempt in good faith to comply with it.

The motion made by appellant to dismiss the appeal should have been allowed, and it was error to deny it.

For the errors indicated, the judgment in this case is reversed and the cause remanded with directions to dismiss the appeal.

Reversed and remanded with directions.


text:
    Bertha Moore et al., Appellants, v. W. W. McFall et al., Appellees.
    1. Trusts, § 96

      —when estate given to carry on business. A testator may appoint by will a trustee to continue a business conducted by him at the time of his decease,' may direct what portion of his property is to be so used and may also impress the whole of his estate with the burdens of continuing the business.
    2. Trusts, § 96

      —how extent of estate to be used is determined. Where a testator appoints by will a trustee to continue his business, his intention as to what part or how muct of his estate is to be devoted to such enterprise must be gathered from the will and the intention must be found in the will itself, and when found must, if possible, be given effect.
    3. Trusts, § 96

      —when whole estate is involved. Where a testator by will directs that his business be continued and for such purpose and for the education and support of the widow and children devises all his property to his widow, giving her all powers for the purpose of carrying out the will and providing that on the death or marriage of his wife the property should descend to his heirs, the whole of the testator’s property is involved in the trust and not only the property embarked in the business at the time of the testator’s death.
    4. Judgment, § 556

      —when whole estate is subject to lien. Where a testator by will directs that his business be continued and for such purpose and for the education and support of the widow and children devises all his property to his widow, giving her all powers for the purpose of carrying out the will, and money is borrowed to continue the business by the widow in partnership with sons, and such creditors obtain judgments, equity will decree the judgments to be liens on any of the property.
    Appeal from the Circuit Court of Franklin county; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Thomas J. Layman and William B. Johnson, for appellants.
    George B. Gillespie and Spiller & Miller, for appellees; Gillespie & Fitzgerald, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

John J. St. Clair died testate in Benton, Franklin county, Illinois, on December 22, 1880.

This suit arises out of a dispute as to what was the intention and what should be the construction placed on the language used in his will. The controverted part of the will is as follows: “It is my will and desire that my business, hardware, furniture, tin shop and business as transacted by me Tie continued, and for this purpose and the care and education of my children having confidence in my wife, Bebecca St. Clair, I will and bequeath to said Bebecca St. Clair, my wife, all my real and personal property of whatsoever kind, all title and interest therein, and for the purpose of paying my just debts and education and support of herself and my family, I hereby authorize her, if necessary to sell and dispose of any of said property and real estate without any order or decree of Court, and that she pay all debts that may be just without the intervention of Courts and do and perform all things whatsoever in regard to my property for the purpose of carrying out this will as I might lawfully do, subject however to this condition that in case of the marriage or death of my wife, Bebecca, that my property of all kinds, real and personal shall descend to my lawful heirs at that time being according to law of descent.

And for the purpose of carrying out this will I hereby appoint my wife Bebecca St. Clair, the Executrix of this will without executing bond as such executrix.

I desire my business carried on in the name of St. Clair Brothers and authorize and empower my Executrix to execute deeds of conveyance to property she may desire to sell.”

John J. St. Clair died within a few days after executing his will. At the time of his death, and for some years prior thereto, he had been engaged in the hardware, furniture and tinning business in the City of Benton. He left Mm surviving Ms widow and nine cMldren, the oldest child being about twenty-two and the youngest child two years of age. At the time of the testator’s death all the cMldren were living at the home except Emma, the oldest, who was married. The next in point of age were Charles and Guy, being aged respectively nineteen and seventeen.

The testator died siezed of lots 3 and 4 in the original town (now city) of Benton, and lots 15 and 16 in the Southeast % of section 18, Township 6 South, for Range 3 East of the Third Principal Meridian, in Franklin County. At the time of his death the testator was occupying said premises as a homestead, and after Ms death his widow, Rebecca St. Clair, continued to hold and occupy the same as a homestead until her death on February 16,1912. This suit was commenced by appellants as heirs of John J. St. Clair to partition the said real estate and appellees answered and filed cross-bills claiming liens.

It appears that after the death of John J. St. Clair, the widow formed a partnership with her sons, Charles and Guy, and carried on the business in the name of St. Clair Brothers, for the benefit of the family under the supposed authority given her in the will. The business was thus conducted until sometime in the year of 1897, when the business having become unprofitable the partnership was dissolved. The testator was in debt about $20,000 when he died.

While the business was being conducted by the said widow and sons, and in order to carry on said business, the widow and her said sons borrowed money from appellees, and when the business was suspended in 1897 there was owing to appellee Cantrell, for money borrowed by the partnership and used in the business, $1,000 and interest. This indebtedness was evidenced by a judgment note, and Cantrell took judgment by confession, on September 27, 1897, for $1,196.50, against all of said partners. Cantrell assigned said judgment to one Ammon, and afterwards repurchased said judgment and by revivor proceedings and issuing execution thereon kept the same alive and seeks in this proceedings to have the same declared a lien on the real estate above described.

Appellees McFall and Whittington were also creditors of St Clair Brothers, and at the May Term, 1904, of the Franklin County Circuit Court, obtained a judgment against all of said partners for $834.68, being the amount of a note and interest given by said partners to said appellees. At the time appellants filed their bill in this case there was pending in the said court a suit to revive said judgment and said suit was still pending when this cause was heard. The court decreed both of the said judgments to be liens on the said real estate sought to be partitioned. From that decree the appellants appeal to this court.

The rights of the parties are conceded to rest upon the construction of the will, and such equities as flow from the attempt of the widow to carry out its provision. The testator had a family of nine children and a wife. Only one of his children was of age when he executed his will. Bight minor children and his wife were to be considered. Their support and education was the thing that concerned him, and he sought by his will to make provision to accomplish that purpose. He directed his wife to continue the business he was engaged in as a means to that end. He placed the whole of his estate in the hands of his wife with specific directions to use it in caring for and educating his children. With expressed confidence in his wife, he gave her all he had without reserve to pay his debts, to carry on the business, and support and educate their children. She accepted the trust and made an honest effort to carry out the expressed wish and will of her deceased husband. She kept the family together and supported and educated the children during their minority. The business was conducted under the name of St. Clair Brothers, as requested by the will. She associated her two eldest sons in the business with her, and while there was no positive requirement of the will so to do, the intimation was strongly that way, when the testator designated “St. Clair Brothers” as the name under which the business was to continue. The business ran along for about seventeen years, but finally became so unprofitable that it had to be suspended altogether, and when closed up the two debts forming the basis of the two judgments of appellees remained unsatisfied.

The main point relied on by appellants, as error, is the construction given to the will, that the whole of the testator’s property was involved in the trust, appellants claiming that only the property embarked in the business at the time of the testator’s death was authorized by the will to be used in continuing the business.

A testator may appoint a trustee to continue a business conducted by him at the time of his decease, and may direct what portion of his property is to be so used. He may also impress the whole of his estate with the burdens of continuing such business. The intention of the testator as to what part or how much of his estate is to be devoted to such enterprise must be gathered from the language employed in the instrument creating the trust. The intention must be found in the will itself, and when found must, if possible, be given effect.

In the case of Auger v. Tatham, 191 Ill. 296, the following language is quoted approvingly: “Cases on wills may guide us to general rules of construction, but unless a case cited be in every respect directly in point and agree in every circumstance it will have little or no weight with the court, who always look upon the intention of the testator as the polar star to direct them in the construction of wills. ’ ’ To the same effect, Howe v. Hodge, 152 Ill. 252; Welch v. Wheelock, 242 Ill. 380.

A careful reading of this will forces the conclusion that the testator intended to place without reserve all of his property in the hands of his wife to be used for the support of herself and for the support and education of his children, coupling therewith a positive direction that she should continue the business. All his assets, special and general, were pledged to the business under the evident hope that the income would meet the requirements of the family and procure the benefits for them according to his expressed wish. The residuary clause strengthens this view. It was all trust property.

A court of equity will lay hold on any property so placed in the hands of a trustee, to satisfy an honest debt created in the execution of an express trust. The evidence shows that both these sums of money were borrowed to carry on the business, and were used for that purpose. No rule of law has been pointed out which prohibits the application of equitable principles. It would be inequitable to defeat appellees ’ claims and the decree of the trial court will be affirmed.

Affirmed.


text:
    Lucy R. Jenkins, Appellee, v. S. H. Goodall, Appellant.
    1. Automobiles, § 2

      —precautions required to avoid injuring pedestrian. Where a large number of people are using a city street, a driver of an automobile is required to keep a proper lookout for persons on or about to cross over the street and to keep his machine under such control as to enable him to avoid collision and to stop if necessary to prevent injury.
    2. Automobiles, § 2

      —when chauffeur is negligent. A pedestrian in crossing a street used by many people in a city walked briskly to the center of the street and then started to run the rest of the way and was struck by a powerful, swift moving automobile running at least fifteen miles an hour. The driver was thirty-five or forty feet from plaintiff when he sounded his horn, expecting her to stop in the center of the street, and made no effort to check his speed until within four or five feet of her. Held, thee driver was negligent.
    3. Automobiles, § 2

      —what use of street is proper. The use of a city street by an automobile when operated with due care and caution and not in violation of State and Municipal police regulations is a proper and lawful use.
    4. Automobiles, § 3

      -—when contributory negligence is for the jury. Where a pedestrian in crossing a street in a city used by many people looked but saw no danger, walked briskly to the center of the street and then started to run the rest of the way and was struck by an automobile going fifteen miles an hour, that sounded a horn when thirty-five or forty feet away, expecting plaintiff to stop, but no effort was made to check its speed until four or five feet away, a finding of absence of contributory negligence will be sustained.
    Appeal from the Circuit Court of Williamson county; the Hon. William W. Clemens, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    W. H. Warder and Denison & Spiller, for appellant ; Hartwell & White, of counsel.
    Pillow & Stone, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

Lucy B. Jenkins, appellee, hereinafter called plaintiff, obtained a judgment in the Circuit Court of Williamson county against S. H. Goodall, appellant, hereinafter called defendant, for damages for a personal injury she claims to have sustained by being struck by an automobile owned by defendant aiid being at the time carelessly and negligently driven by defendant’s servant. From said judgment defendant prosecutes this appeal.

The injury complained of was received on East Main street, in the city of Marion in Williamson county, on the evening of the “big day” of the County Fair, which was then being held at the fair grounds about three fourths of a mile east of the public square in Marion.

It appears there was a crowd of probably twenty thousand people attending the fair that day and a very large proportion of them passed over Main street in going to and from the fair. Plaintiff and her husband had been to the fair that day and were on their way to their home in Marion when the accident occurred. They had walked on the granitoid sidewalk along the south side of the public road and East Main street to a point where it was necessary for them to cross East Main street in order to reach their home in the usual and most direct manner.

Their home was a few blocks north of Main street and a few blocks east of the public square, and almost directly north of the point referred to. They reached the point referred to between five and six o’clock. East Main street at that time was crowded with people on the sidewalks and vehicles of all sorts in the street, returning to the city from the fair. East Main street was paved with brick at the point where the injury occurred. The distance from the north to the south curb was about twenty-seven feet. Vehicles going west were using the north side of the street and those going east used the south side. The place of the accident was within the city limits of the city of Marion. It appears that defendant owned the automobile which struck plaintiff, and was that day operating it by a servant in carrying passengers to and from the fair grounds for hire. That the automobile was a double seated, thirty horse power machine.

When plaintiff reached the point on the street opposite to her home, as above stated, she attempted to cross the street and in so doing received the injuries complained of. Plaintiff testified that just before she started to cross the street she looked both east and west to see if there was danger; that there seemed to be an opening there. “I saw a carriage drawn by horses on the north side of the street. I saw no automobile, heard no horn or outcry.” There is quite a conflict of evidence as to how she proceeded to cross the street, but from the whole evidence it appears she walked briskly to the center of the street and then started to run the rest of the way, and was struck by defendant’s automobile near the north curb.

The young man driving defendant’s machine testified plaintiff was near the center of the street and about thirty-five or forty feet west of him when he first saw her, and that she was going in a northwest direction. “There was nothing between me and her to obstruct my view.” That he then blew his horn, and then she started to run, and he turned his machine to the right. That when he saw she was going on in front of him he whirled his machine to the left and threw on the emergency brake, and hallooed “Look out!” That he was then about five or six feet from her. “She could have stopped after I blew my horn and let me pass on by. I could stop the machine, when under control, in fifteen or twenty feet. I was running about nine or ten miles an hour. "When running at twenty-five miles an hour I can stop in twenty feet by throwing on emergency brake and shutting off the gasoline. That the north side of the front part of his machine struck plaintiff.”

The evidence shows that a short distance east of where the machine struck plaintiff the driver was running the machine at the rate of twenty-five miles an hour. One of the parties riding in the machine testified the speedometer showed it to be running at that rate a few blocks east of where plaintiff was injured.

The evidence clearly and conclusively shows the negligence of the defendant. The conduct of the driver of the machine shows such a reckless disregard for others having the right to the use of the street that some kind of an accident was almost inevitable under the conditions and circumstances then surrounding him.

He saw plaintiff in the center of the street attempting to cross. He could have checked his speed and prevented striking her. By sounding the horn he expected her to stop and remain in the center of the street, until he passed. The evidence fairly establishes the rate of speed he was going to be at least fifteen miles an hour. And he was thirty-five or forty feet from her when; he sounded the horn. He made no effort to check his speed until he was within five or six feet of her. Ordinary care certainly required more than that. He relied on her to exercise all the judgment and care necessary to prevent injury, while he in the management of a powerful, swift moving machine assumed superior rights to the use of the street as against ones attempting to cross it. He was required under the circumstances to keep a proper lookout for persons on or about to cross over said street and keep his machine under such control as to enable him to avoid collision, and if necessary to prevent injury to stop. Kessler v. Washburn, 157 Ill. App. 532; Johnson v. Coey, 237 Ill. 88.

The customary or usual and ordinary use of a street is for travel from one point to another, both along and across it. The use of a street by an automobile when operated with due care and caution and not in violation of State or Municipal police regulations, would be deemed a proper and lawful one. Under the evidence in this case the machine was not operated with due care and caution, and the evidence tends strongly to prove that it was also operated in violation of the Motor Vehicle Law (J. & A. 10010) in being driven at a higher rate of speed than the law permits.

It is contended by appellant that plaintiff was guilty of such contributory negligence as in law bars a recovery.

The question of whether plaintiff was in the exercise of due care for her own safety was properly submitted to the jury, along with the other issues in the case, and the jury found against 'defendant on all issues, and we cannot say after a careful consideration of the evidence that the findings of the jury are unwarranted. On the whole case we are of the opinion the evidence warranted the verdict and justified the judgment. Judgment affirmed.

Affirmed.


text:
    Katie McGeever, Appellant, v. Joe Moran and Louis A. Cool, Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Intoxicating liquors, § 225

      —when right to recover for intoxication of husband. In an action by a wife under the Dram-shop Act, § 9, J. & A. j[ 4609, for injury to her person and means of support occasioned by two saloon keepers selling her husband intoxicating liquors, the evidence showed that the husband lost his position by being habitually drunk, failed to support her, struck her when drunk and constantly bought liquors at defendant’s saloon after notice not to sell him. One defendant did not dispute the facts and the other offered evidence that the wife quarreled with her husband and that no sales were made after notice to desist. Held, a verdict for defendants was against the manifest weight of the evidence.

      Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Katie McGeever against Joe Moran and Louis A. Cool under section 9 of the Dram Shop Act, (J. & A. 4609) to recover damages for an alleged injury to her person, property and means of support occasioned by defendants selling or giving her husband intoxicating liquors. From a judgment for defendants, plaintiff appeals.
    J. B. Harris and Whitnel, Browning & Gillespie, for appellant.
    M. R. Sullivan and Geers & Geers, for appellee, Louis A. Cool.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number,

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

2. Intoxicating liquors, ‘§ 249 —when instruction limiting recovery to injury to means of support is misleading. Where a declaration charges and the Dramshop Act, § 9, J. & A. If 4609, authorizes recovery for injuries to the person or property of a wife from the intoxication of her husband, and there is evidence of acts of personal violence by the husband against his wife, an instruction practically limiting a right of recovery to injury to the means of support is misleading.


text:
    James Bosley, Administrator, Appellee, v. The Baltimore & Ohio Southwestern Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by James Bosley, administrator of the estate of Dora M. Bosley, deceased, to recover damages for the death of deceased resulting from being struck by one of defendant’s locomotives at intersection of a sidewalk and the defendant’s right of way. From a judgment in fávor of plaintiff for two thousand dollars, defendant appeals.
    Kramer, Kramer & Campbell, C. H. G. Heinfelden and Kagy & Vardervort, for appellant; Edward Barton, of counsel.
    Charles H. Holt and W. C. Wilson, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

Abstract of the Decision.

1. Railroads, § 703 —presumption arising from excessive speed. In an action for death resulting from being struck by train running at a speed in excess of the rate fixed by law of that place, the injury will be presumed to have resulted from such negligence.

2. Railroads, § 768 —when requested instruction on duty to looh and listen properly refused. Instruction informing the jury that unless the evidence showed that the deceased before attempting to cross the track did look and listen for approaching trains she was guilty of contributory negligence, held properly refused where the question whether she did look and listen depends upon facts and circumstances surrounding the person at the time.

3. Railroads, § 772 —when instruction on relative weight of positive and negative evidence properly refused. Requested instruction containing the statement that positive evidence as to the fact that the bell was rung or whistle blown is entitled to more weight than negative evidence in relation to the same fact, held properly refused.


text:
    Mary D. Hockett and Mahlon Hockett, Appellees, v. William S. Logan et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Jasper county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Bill by Mary D. Hockett against William. S. Logan and others to cancel and to remove as a cloud, a certificate of sale issued to defendants at a sale on an execution against the complainants’ husband. From a decree granting the relief prayed in the bill, defendants appeal.

      Abstract of the Decision.
    1. Fraudulent conveyances, § 270*—when conveyance from husband to wife, not fraudulent. On bill by wife to cancel a certificate of sale issued, on a sale of land under an execution against her husband, evidence held sufficient to support finding of chancellor that a prior conveyance of the land from husband to wife was in good faith and not voluntary.
    2. Appeal and error, § 1395*—when findings of chancellor will not be disturbed. Findings of a'chancellor who tries a case on oral evidence will be upheld unless they are palpably erroneous.
    Mr. Presidinq Justice McBride, having tried the case in the court below, took no part in this decision.
    A. C. Isley and F. C. VanSellar, for appellants.
    Frank T. O’Hair and Stewart W. Kincaid, for appellees. .
   Mr. Justice Thompson

delivered the opinion of the court.


text:
    V. T. Hartzell, Appellee, v. Alton, Granite & St. Louis Traction Company, Appellant.
    1. Street railroads, § 1

      —railroads and street railroads defined and distinguished. A street railroad is a railroad laid down on the streets of a town or city for the purpose of carrying passengers from one point of the town or city to another, or to or from its suburbs, while a railroad running across the country from city to city carrying both passengers and freight takes on the character of a commercial railroad and must be deemed as such.
    2. Railboads, § 283

      —duty of an electric railroad to fence. An electric railway organized under the general incorporation act as a street railroad and operating across the country from one town to another is subject to the Act of 1874, J. & A. 1ij[ 8811 et seg., requiring railroads to fence where it is engaged in carrying passengers and freight.
    3. Railroads, § 821

      —when owner not negligent in permitting stock to pasture near unfenced tracks. Fact that owner permitted his cow to pasture adjacent to defendant’s unfenced tracks, held not evidence of contributory negligence causing killing of cow by defendant’s cars where it was duty of railroad company to fence tracks.
    4. Railroads, $ 890

      —when requested instruction on contributory negligence in permitting animals near track, properly refused.' In an action to recover damages and attorney’s fees on account of the killing of a cow while on the tracks of defendant’s electric railroad, an instruction on the question of contributory negligence of plaintiff in permitting his cow to go upon the land adjacent to railroad not fenced, held properly refused where there was no evidence' that plaintiff was guilty of such negligence.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Williamson, Burroughs & Elder, for appellant.
    D. H. Mudge, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

This suit was commenced by Hartzell, appellee, before a justice of the peace, to recover damages and attorney’s fees on account of the killing of his cow, while she was on the track of appellant, the Alton, Granite & St. Louis Traction Company.

A justice rendered judgment against appellant, and an appeal was prosecuted to the Circuit Court of Madison county, where a trial was had resulting in a judgment for appellee of eighty dollars damages and thirty dollars attorney’s fees, and from that judgment appeal was taken to this court. Two questions are raised by the errors assigned, appellant contends first that appellee’s rights of recovery is predicated upon the requirements of the statute under an act entitled “An act in Relation to Fencing and Operating Railroad,” approved March 81, 1874, and in force July 1, 1874 (J. & A. Tfíf 8811 et seq.); that this act applies to railroad corporations only; that appellant was organized under the general incorporation act as a street railroad, and at the time of the injury complained of was conducting its business as a street railroad and was not subject to the requirements of the statute in reference to fencing its roads.

The undisputed evidence shows that appellant operates an electric railroad between the cities of Edwards-ville in Madison county, Illinois, and St. Louis, Missouri, passing through the villages and cities of Pogue, Mitchell, Nameoki, Granite City and East St. Louis; that appellant in operating said road used both passenger and express cars; that the road ran through parts of the counties of Madison and St. Clair. The precise question raised on this contention has not been before this court or the Supreme Court so far as we are advised. How far a common carrier, denominated by itself as a street railway and organized under the general incorporation law, can proceed in the enjoyment of the rights and privileges of a railroad, without assuming the duties and- liabilities the law places on railroads, raises a vitally important question.

Railroads organized under the general incorporation act, under what is known as the “Horse and Dummy,” provisions of said act have been known and characterized as street railroads, and are authorized to carry passengers over its line for hire. They are subject, however, to reasonable "regulation by the city granting them the use of its streets. The service and rates for transportation are subjects coming under municipal control. The reasonableness of rates for transportation of passengers and freight, by railroads within the State, are regulated by the railroad and warehouse commission.

The railroad commission has jurisdiction over all common carriers engaged in transporting passengers and freight between points within the State. The management and operation of street railroads comes within the jurisdiction of city authorities. The jurisdiction of the city authorities stops at the city limits. The jurisdiction of the railroad and warehouse commission is state wide. The only power to regulate passenger, freight or express charges of common carriers like appellant must be found in the Railroad and Warehouse Act, which created the railroad and warehouse commission, if such power is lodged anywhere.

Appellant contends that the provisions found in section 185 of the Railroad and Warehouse Act (J. & A. if8948), where, in defining the term “common carriers,” it is provided that street railroads shall not be included within the terms of that section, is controlling and exempts appellant from any requirement as to fencing its railroad on the ground that it is a street railroad and not a common carrier.

The law makes a clear distinction between a street railroad and an ordinary commercial railroad. A street railroad is a railroad laid down on the streets of a town or city for the purpose of carrying passengers from one point of the town or city to another, or to and from its suburbs. Harvey v. Aurora & G. Ry. Co., 174 Ill. 295.

A railroad running across the country from city to city, carrying both passengers and freight, takes on the character of a commercial railroad and must be deemed as such.

In the case of Shea v. Cleveland, C., C. & St. L. Ry. Co., 250 Ill. 97, the Court referred to the Mattoon City Railway Company, which in character and operation is similar to appellant Railroad Company, and said: “Under the evidence * * * the Mattoon City Railway Company seems to be operating a commercial railroad upon its own right of way. The Railroad and Warehouse Act is the only authority under which such a railroad can be so operated in this State. * * * .It may be doubted whether a corporation exercising the privileges and franchises granted by that act could repudiate the liabilities imposed by statute upon corporations organized under it.”

This intimation of the Supreme Court, while hot controlling as to its future course, points clearly to what we believe to be the true principle of law that should be applied to the facts in this case. Appellant does commercial business. It uses express cars. The use of express cars means transportation of goods for hire. Its right to engage in such business is derived from the Railroad and Warehouse Act. The railroad and warehouse commission has jurisdiction over such business. The Railroad and Warehouse Act requires railroads to fence their roads. When appellant elected to do commercial business and enjoy the rights and privileges the railroad act confers, it cannot be heard to deny the liabilities the act imposes.

Appellant’s second contention is that the court erred in refusing its instruction on the question of contributory negligence of appellee in permitting his cow to go upon the land adjacent to the railroad when he knew the condition as to fencing. If there was any evidence that appellee was guilty of negligence, which contributed to the killing of the cow, it would have been proper for the court to have instructed the jury as to the law concerning such negligence. The only act of appellee, claimed by appellant to have been negligent, is that of pasturing his cow on land joining the right of way of appellant, knowing there was no sufficient fence to keep her from straying on the tracks. We cannot concur in that view. Appellant should have had its road fenced and appellee had the right to have his cow on his pasture, and the mere fact that he put his cow in the pasture and left her there, when there was no fence to keep her off the railroad tracks, is not evidence of contributory negligence, causing death of the cow. Appellee had the right to the use of his land and appellant cannot be heard to insist on a denial of such right in order to escape liability for its failure to perform a duty imposed by statute. Chicago, P. & St. L. Ry. Co. v. Bourne, 105 Ill. App. 27; Ewing v. Chicago & A. R. Co., 72 Ill. 27; Cairo & St. L. R. Co. v. Woosley, 85 Ill. 370,

It was not error for the trial court to refuse the instruction for the reason there was no evidenec of contributory negligence to be considered by the jury.

The judgment of the Circuit Court was right under the law and the evidence, and will be affirmed.

Affirmed.


author: Mr. Presiding Justice F. A, Smith

text:
    Arabella Louisa Dunbar, Appellee, v. Royal League, Appellant.
    Gen. No. 17,893.
    1. Corporations, § 326

      —how powers are determined. The powers of a corporation organized under a general statute must be determined from its charter alone.
    2. Insurance, § 815

      —when affianced wife is not a dependent. Where the charter of a fraternal benefit society declares the objects of the corporation to be to benefit the widows, orphans and dependents of deceased members thereof and to establish a fund to pay benefits to the family or dependents of a member, an affianced wife is not a dependent.
    3. Insurance, § 810

      —what beneficiaries included within term devisee. The term “devisee” in the Incorporation Act of 1872, J. & A. ¶ 2449, is capable of including anybody so long as he or she is designated in the benefit certificate of a fraternal beneficial society if the charter is broad enough to include such person, and where sufficiently broad an affianced wife of a member is eligible as a beneficiary.
    4. Insurance, § 747

      —when amendment to charter gives no right to designate affiancee beneficiary. Where the charter of a fraternal benefit society declares it to be the object of the corporation to benefit the widows, orphans and dependents of deceased members, and is subsequently amended so as to include husbands as eligible beneficiaries, there is' no such alteration of its charter as to give it the right to authorize members to designate an affianced wife as a beneficiary.
    5. Insurance, § 758

      —when insured not bound by own construction of charter. Where the charter of a fraternal benefit society declares its purpose to be to benefit widows, orphans and dependents of deceased members, a construction and interpretation of the charter by the society as giving the right to authorize members to designate an affianced wife as a beneficiary is the basis of an ultra vires act and is not binding on the society.
    6. Insurance, § 758

      —when not estopped to deny eligibility of beneficiary. A fraternal benefit society construing and interpreting its charter, which declares its purpose to be to benefit widows, orphans and dependents of deceased members, as giving the right to authorize members to designate an affianced wife as a beneficiary, is not estopped to deny the eligibility of an affianced wife as a beneficiary.
    7. Insurance, § 815

      —when charter limits power to designate beneficiary. Where a fraternal benefit society is incorporated under the Incorporation Act of 1872, J. & A. ¶¶ 2418 et seq., and its charter limits the beneficiaries of deceased members to their widows, orphans and dependents, which is narrower than the limits of the statute, the powers must be determined from the charter; it has no power to enact a by-law providing for benefits to an affianced wife and an affianced wife is not eligible as a beneficiary.
    Appeal from the Circuit Court of Cook county; the Hon. William B. Scholfield, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed December 2, 1913.
    Mann & Miller and Arthur J. Donovan, for appellant.
    James R. Ward, for appellee.

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

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

   Mr. Presiding Justice F. A, Smith

delivered the opinion of the court.

The main question presented by the record is whether or not an affianced wife is an eligible beneficiary under appellant’s charter.- This question is presented by the pleadings and orders of court thereon.

The declaration alleged that appellant was an incorporated fraternal beneficiary society under the laws of Illinois, and that on April 25, 1896, it issued a benefit certificate to Alfred Gustav Henriques, one of its members, wherein it promised to pay out of its widows’ and orphans’ benefit fund, upon the death of the said member, four thousand dollars to appellee by name and style of Arabella Louisa Dunbar, affianced wife of said Alfred Gustav Henriques, in accordance with and under the provisions of the laws governing said fund; that at the date of the said certificate appellee was and remained to the time of the death of the member his affianced wife; .that the member died February 3, 1904, in good standing in the order and that appellee made and delivered satisfactory proofs of death to appellant whereby said four thousand dollars became due and payable to appellee, but appellant failed and refused to pay it. The common counts were also pleaded and a copy of the benefit certificate was attached.

A general issue and a first additional plea and replications thereto were filed, and afterwards withdrawn so that they are not now before the court. Appellant filed a second additional plea, which is the only plea now in question, and, therefore, all references to appellant’s plea hereafter made will refer to said second additional plea.' This plea alleges, so far as here material, that appellant is a corporation not for pecuniary profit, organized and existing under an act of the State of Illinois entitled, “An Act Concerning Corporations,” approved April 18, 1872, and in force July 1, 1872, (J. & A. ¶¶ 2418 et seq.), as a fraternal beneficiary society, and that it received in the year 1883, in accordance with the law, a charter or articles of association under which it has operated and conducted its business as such fraternal insurance society and continues to operate and conduct its business; that in said charter, in setting forth the business for which appellant is formed, it is recited as follows:

“2nd. The object for which it is formed is * * * to benefit the widows, orphans and dependents of deceased members thereof. * * *
To establish a widows’ and orphans’ benefit fund out of which shall be paid, on the death of a member, while in good standing in the order, to his family or those dependent upon him, as he may have directed, a sum not exceeding four thousand dollars, as may be provided in the constitution and laws of the order.”

That in 1901, the first paragraph above quoted was amended so as to read, “The object for which it is formed is * * * to benefit the widows, orphans, husbands • and dependents of deceased members thereof.”

The plea further alleges that Henriques was admitted to membership on April 18, 1896, and the benefit certificate referred to in the declaration was issued to him on April 25, 1896, on certain conditions therein set forth, and in which it was provided that these conditions being expressly consented to and complied with appellant thereby promised and bound itself to pay out of its widows’ and orphans’ benefit fund to appellee, Arabella Louisa Dunbar, named and described therein as the affianced wife of Henriques, a sum not •exceeding four thousand dollars; that at the time of the issuing and delivering to said Henriques of said certificate, appellee was not nor was she at the time of the death of said Henriques a member of his family nor did she come within the designation of widow or orphan nor was she dependent upon said Henriques within the meaning of the law and that she was not and is not eligible to take said fund or any part thereof.

To this plea appellee filed three replications. The first admits the charter provision to establish a fund to be paid to a member’s family or those dependent upon him and sets up the adoption of a constitution and law by appellant alleged to be declaratory of the objects of the order, wherein it was provided that a benefit certificate may be made payable to an affianced wife, among others, in which class of beneficiary no proof of dependency shall be required, that said charter, constitution and law were in full force and effect before and at the time said certificate was issued and so remained up to the member’s death; that said certificate was issued in pursuance of and in accordance with said charter, constitution and law, and by reason thereof the designation of appellee as the affianced wife of the member was a designation of a person dependent upon him within the terms and requirements of said constitution and law and objects stated in the articles of association of appellant, therefore she is eligible.

The second replication alleges that after the designation of appellee by the member as beneficiary and affianced wife, the member paid all dues and assessments required to be paid and continued in good standing in the order until his death, and that the members of the order, after the issuing of said certificate, paid into the widows’ and orphans’ benefit fund of said order dues and assessments therefor down to and prior to the commencement of this suit an amount exceeding four thousand dollars, which sum was payable to appellee and was then and there held in trust for the use and benefit of appellee in accordance with the constitution and law of appellant aforesaid.

The third replication alleges precludi non because before and at the time of the issuing of said certificate, appellee was and continued to be up to the member’s death the affianced wife of and dependent upon said member, and concludes to the country.

General and special demurrers were filed to each of these replications which were overruled, and, upon appellant’s election to stand by its demurrers, the judgment was entered from which this appeal was prayed.

The main question above stated is thus presented by the plea, replications and the demurrers thereto. We think it is a settled principle of law of this State that where a corporation is organized under a general statute, the powers of such corporation must he determined from its charter alone. Rockhold v. Canton Masonic Mut. Ben. Soc., 129 Ill. 440; Norwegian Old People’s Home Soc. v. Wilson, 176 Ill. 94; Grimme v. Grimme, 198 Ill. 265; Murphy v. Nowak, 223 Ill. 301.

In the Rockhold case, supra, the Supreme Court said at page 455: “ ‘The particular business and objects’ of the corporation, as declared in the certificate of the promoters filed in the office of the Secretary of State, are ‘to give financial aid and benefit to the widows, orphans and- heirs or devisees of deceased members, ’ and the certificate of incorporation is a license only for ‘the particular business and objects’ enumerated in the certificate of the promoters.”

So far as here material, the charter of appellant declared the objects of the corporation to be to benefit the widows, orphans and dependents of deceased members thereof, and to establish a widows’ and orphans’ benefit fund out of which should be paid, on the death of a member, to his family or those dependent upon him, as he may have directed, a sum not exceeding four thousand dollars. By the amendment in 1901, husbands were added to the list.

There is no question in this case that appellee does not come within the classification of widow, orphan or member of the family of the member, and it is contended by appellant that it is equally clear that she does not come within the classification of dependents. We think this contention is sound. A dependent, as the term is used in connection with fraternal societies, has a well-defined meaning in the law of this State. In Alexander v. Parker, 144 Ill. 355, the Court said:

“Where the statute and charter of an association provide for the payment of benefit funds to persons dependent upon the members, the word, ‘dependent,’ means ‘some person or persons dependent for support in some way upon the deceased.’ (Ballou v. Gile, 50 Wis. 614; Bacon on Ben. Soc. and Life Ins., Sec. 261.) Dependence for favor, or for affection, or for companion ship, or as servants, or retainers, is excluded. A dependent, as the term is used in reference to these benevolent associations, is one who is sustained by another, or relied for support upon the aid of another.”

To the same effect are Royal League v. Shields, 251 Ill. 250, and Murphy v. Nowak, supra. In Alexander v. Parker, supra, the society was incorporated under the statutes of Massachusetts, which provided that for the purposes of assisting the widows, orphans or other persons dependent upon deceased members such societies may provide for payments by the member of fixed sums to be held until his death and then paid to the persons entitled thereto. The charter declared the objects of the corporation to be “for the purpose of * * * aid to its members and their dependents * * * assisting the widows and orphans of deceased members, establishing a fund for the relief of sick and distressed members, and one for a widows’ and orphans’ benefit fund,” etc. The member designated his affianced wife and, upon his death, a bill of interpleader was filed by the society, making the affianced wife and the member’s children parties defendant. The trial court found that the affianced wife was entitled to the fund, and the Appellate Court affirmed the decree. The Supreme Court, however, reversed the judgment.

It seems to us, therefore, that appellee does not come within any of the classes of beneficiaries authorized by the charter of appellant, and if the charter expressed the limit of appellant’s corporate power, it had no authority to pay a benefit to the beneficiary named in the certificate in question out of its benefit fund, under the authorities above cited. To these may be added Palmer v. Welch, 132 Ill. 141; Steele v. Fraternal Tribunes, 215 Ill. 190; Sowersby v. Royal League, 159 Ill. App. 626.

The amendment in 1901 of appellant’s charter set forth in the plea was intended to and did affect only the first paragraph of the objects of the association stated in its original charter. It did not modify or affect the remaining four paragraphs. The purpose of the amendment was to enlarge the classes eligible to membership in the order and did not in any wise affect the charter or constitution of appellant relating to beneficiaries and the payment of benefits from the widows’ and orphans’ benefit fund. Therefore the objects of appellant association stated in its original charter relating to beneficiaries which might be designated by a member, and the payment of benefits to the beneficiaries continued in force and effect after the amendment of 1901, the' same as before that amendment. This, however, affords no basis for the argument advanced by appellee that appellant so interpreted its charter and constitution as to give it the right to* authorize members to designate an affianced wife as a beneficiary. Furthermore, appellant is not bound by its construction and interpretation of- its charter where that construction is the basis of an ultra vires act.

In Norwegian Old People’s Home Soc. v. Wilson, supra, the society was organized under the same statute as was appellant. The member had a certificate payable to his daughter. In 1896 he surrendered it and procured another certificate payable to his brother and the Old People’s Home. On his death, his daughter filed a hill to recover all of the fund. The brother and the Home filed a cross-hill claiming the fund. In holding that the fund belonged to the daughter and brother and that the Home was ineligible, the Supreme Court declared that “the whole question as to who may he made beneficiaries must he settled, in the first place, by reference to the certificate of incorporation” of the association; and that the Home was incompetent to take under the terms of the certificate of incorporation,- for it could not in any way be held to he a member of the deceased’s immediate family. The Court further said: “It is no answer to say that the statute of the State under which the association was organized was broad enough to permit such society to take. The incorporators of the association chose to restrict the objects of its benevolence to the immediate family of the member, and the courts must construe the contract as they find it,” citing the Rockhold case, supra.

The Court proceeds to say further on in its opinion:

“The Policemen’s Benevolent Association is an Illinois corporation, which has voluntarily chosen to restrict its benevolences to the immediate families of its members, and we must apply the restrictions found in the statement of the object of the association as specified in the certificate of incorporation, and not the statute itself in its broadest scope. It is obvious that there is nothing illegal or against public policy in the action of the association in narrowing the scope of its beneficial action.”

To the same effect is Murphy v. Nowak, supra.

In so far as the eligibility of an affianced wife is concerned, the statute of 1893, relating to fraternal beneficiary societies (Hurd’s Revised Statutes of 1912 J. & A. ¶¶ 6646 et seq., added nothing to nor detracted anything from that which was already provided in the statute of 1872 (J. & A. 2449). An affianced wife was eligible under the latter statute as a devisee. Stake v. Stake, 228 Ill. 630. And there is no reason why a member may not have the policy made payable to the proposed beneficiary directly, in lieu' of doing the same thing by a will. Bloomington Mut. Ben. Ass’n v. Blue 120 Ill. 121. The term “devisee” in the statute of 1872 (J. & A. ¶2449) is capable of including anybody so long as he or she is designated in the certificate, if the charter is broad .enough to include such person. The only effect of the Act of 1893, in regard to beneficiaries, was to restrict the scope of fraternal societies in regard to the persons who might be beneficiaries, and to exclude all others. Those classes of beneficiaries enumerated in the statute were unaffected and retained the same rights as before.

The authorities above cited dispose .of appellee’s contention that appellant is bound by its construction of its charter in issuing certificates payable as its constitution provides. This contention is not sound when such construction would establish a contract which appellant had no power to make. They also dispose of appellee’s contention that appellant is es-topped to deny the eligibility or dependency of ap-. pellee under its charter.

The broad contention between the parties may be stated as follows: Appellee contends that the statute in its fullest scope and not the charter fixes the limits of appellant’s corporate power, and that, therefore, since an affianced wife is within the classes permitted by the statute, she is eligible, while appellant contends that the charter fixes the limits of such corporate power even though it is narrower than -the statute, and since an affianced wife as such does not come within the classes permitted by the charter, appellee is ineligible. Under the authorities above cited and many others, the contention of appellee is not the law in our opinion. If, as we think, the charter fixes the limit of the corporate power of appellant, it follows that appellant had no power to enact the by-law set up in the first replication to the second additional plea, providing for payment of benefits to an affianced wife, and thus broaden its charter powers. It was powerless to provide by the by-law or otherwise for a beneficiary belonging to a class which did not come within its charter.

These considerations and the authorities cited apply to the subject-matter of all the replications and compel us to hold that the replications are bad in substance, and do not answer the plea. It is therefore unnecessary for us to discuss the formal and specific defects of the replications.

The trial court erred in overruling the demurrers to the replications and in entering judgment. The judgment is reversed and the cause is remanded.

Reversed and remanded.


author: Mr. Presiding Justice F. A. Smith

text:
    William Brand, Administrator, Defendant in Error, v. W. Irving Osborne et al., Plaintiffs in Error.
    Gen. No. 18,625.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Railroads, § 667

      —duty on approaching grade crossing. A traveler approaching a railroad crossing at grade over a highway has the duty to approach cautiously and .to endeavor to ascertain if there is present danger in crossing.
    2. Railroads, § 667

      —when negligent not to look or listen at crossing. While failure to look and listen will not as a matter of law under all circumstances bar a recovery, yet as a question of fact, if there is no evidence that a traveler looked or listened, and if there is no excuse for failing to do so and no obstructions to prevent seeing an approaching train before entering upon a dangerous crossing, it will be held as a question of fact that the traveler did not exercise ordinary care, when, if he had looked or listened, he could not have failed to have seen or heard the train.
    Error to the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed.
    Opinion filed December 2, 1913.
    Rehearing denied December 16, 1913.
    Statement of the Case.
    Action by William Brand, as administrator of the estate of Charles Brand, deceased, against W. Irving Osborne, D. B. Hanna and George G. Moore as receivers of the Chicago & Milwaukee Electric Railroad Company, a corporation, to recover damages for alleged wrongful death of plaintiff’s decedent. From a judgment for plaintiff for two thousand dollars defendants bring error.
    Bull & Johnson, for plaintiffs in error.
    George W. Woodbury and Richard J. Finn, for defendant in error.

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

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

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

3. Railroads, § 667 —when evidence shows failure to loots or listen. A person familiar with the situation and use of electric tracks in a city was killed hy a car at a crossing at night. The view of the track for from three hundred to four hundred feet was unobstructed by anything except a few trees from which the leaves had fallen, and when within fifty or sixty feet of the track a clear view could be had for over a thousand feet. The car was brightly lighted and had a powerful electric searchlight burning that could have been seen for a mile. Held, the deceased did not look or listen and was contributorily negligent.

Clark, J., dissenting.

4. Railboads, § 651 —effect of contributory negligence. A person crossing a railroad crossing not exercising due care and caution is negligent, and if such negligence contributes to his death by being struck by a train there can be no recovery.


text:
    Robert White et al., Appellants, v. Annie Rezek and Harry A. Rezek, Appellees.
    Gen. No. 18,643.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 2, 1913.
    Statement of the Case.
    Action by Robert White, Roy B. Tabor and J. P. Strickland, copartners trading as White & Tabor, against Annie Rezek and Harry A. Rezek to recover commissions for negotiating a sale of real estate. From a judgment for defendants, plaintiffs appeal.
    Gann, Peaks & Townley, for appellants.
    Lewis F. Jacobson, for appellees.

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

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

Abstract of the Decision.

1. Brokers, § 50 —terms of sale must he accepted before offer is withdraion. Where a broker representing the seller of land conducts negotiations with both the purchaser and the seller and there is no unconditional acceptance of all the terms of the sale before the offer of sale is withdrawn, the broker is not entitled to commissions.

2. Brokers, § 40 —when willingness of purchaser to accept terms offered is not shown. Parties to a contract of sale were bargaining upon the understanding that a written and binding contract would have to be drawn up and signed by the parties, stating the terms of the contract in full, before the broker could claim commissions. There was a dispute as to who should pay a special assessment and the broker offered to pay the amount and deduct it from his commissions, but neither party acceded to the proposition. The broker prepared a contract that both parties refused to sign. Held, there was no meeting of the minds between the parties and the broker was not entitled to commissions.

Clark, J., dissenting.


text:
    Robert Halpin, Appellee, v. The National Safe Deposit Company, Appellant.
    Gen. No. 18,815.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 2, 1913.

      Certiorari denied by Supreme Court (making opinion final.)
    Statement of the Case.
    Action by Robert Halpin against the National Safe Deposit Company to recover damages for personal injuries sustained by plaintiff while in the employ of defendant and in attempting to oil the bearing of a shaft of an overhead coal conveyor in the basement of defendant’s buildings. From a judgment in favor of plaintiff for ten thousand dollars defendant appeals.

      Abstract of the Decision.
    1. Master and servant, § 685

      —when evidence sustains verdict for injuries resulting from revolving shaft containing an unprotected set screw. In an action for personal injuries resulting from the clothes of plaintiff being caught by a set screw in a revolving shaft while plaintiff was attempting to oil the bearings, a verdict for plaintiff held sustained by the evidence.
    2. Master and servant, § 193

      —duty to warn inexperienced servant of dangerous machinery. Where an inexperienced person employed to oil machinery is put to work by his superior, failure to warn him of a set screw projecting from a safety collar which was covered by dust and could not be seen when the machinery was in motion, held to render the master liable for injuries resulting therefrom.
    3. Master and servant, § 663

      —what may be considered in determining questions of assumed risk and contributory negligence. In an action by a servant for injuries sustained by him while engaged in his duties in oiling machinery, the situation of the machinery, its unprotected condition, the light maintained about the machinery, its operation, surrounded with coal dust to such an extent that it was difficult to see the machinery in operation, the safety collar, the projecting set screw, together with the age of plaintiff, his lack of knowledge and want of experience, held to be facts of controlling importance in weighing the questions of assumed risk and contributory negligence.
    4. Master and servant, § 706

      —when assumed risk and contributory negligence are questions of law. Questions of assumed risk and contributory negligence are ordinarily questions of fact. They only become questions of law where, from the facts admitted or conclusively proved, there is no reasonable chance that reasonable minds would reach a different conclusion.
    5. Master and servant, § 833

      —when admission of models of appliances harmless. Admission in evidence of the model of the safety collar and projecting cap screw which caused the injury to the plaintiff, held not reversible error.
    Frank M. Cox and E. J. Fellingham, for appellant; Edward E. Brown, of counsel.
    Ashcraft & Ashcraft, for appellee; E. M. Ashcraft, of counsel.

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

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

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

6. Master and servant, § 833 —when permitting proof that defendant removed appliance subsequent to accident harmless. Permitting plaintiff to prove that the defendant removed the projecting set screw after the accident to the plaintiff, held not reversible error.

7. Master and servant, § 833 —when questions ashed by court concerning appliances, not reversible error. Action of trial court in asking a witness whether or not it was necessary that a set screw by which plaintiff was injured extend beyond the periphery of the safety collar in order to firmly attach the collar to the shaft, held not reversible error.

8. Master and servant, § 833 —when permitting witness to answer questions as to appliances harmless. Permitting a witness to answer a question whether there were other safety collars in the building like the one which caused the injury, held' not reversible error where the purpose of the question was to show the witness’ knowledge as to the use of safety collars.

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


text:
    The Order of Columbian Knights, v. Elmer Matzel et al. On Appeal of Amanda Schmidt, Appellant, v. Elmer Matzel, Appellee. New York Life Insurance Company, v. Amanda Z. Schmidt et al. On Appeal of Amanda Schmidt, Appellant, v. Emma Matzel, Appellee.
    Gen. No. 18,856. Gen. No. 18,857.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the October term, 1912.

    Reversed and remanded.
    Opinion filed December 2, 1913.
    Rehearing denied December 16, 1913.
    Statement of the Case.
    Consolidated causes consisting of two bills of interpleader, one filed by The Order of Columbian Knights against Elmer Matzel and Amanda Schmidt and one filed by New York Life Insurance Company against Amanda Schmidt and Emma Matzel. Both bills were filed by the respective complainants to determine the conflicting claims of the respective defendants to sums paid into court and admitted to be due as insurance on the life of John Schmidt, husband of Amanda Schmidt. Issues were made up by the answers of the conflicting claimants and the complainants to the bills filed dismissed out of the case. From a decree finding Elmer Matzel and Emma Matzel entitled respectively to the sums admitted to bé due by the separate interpleaders, Amanda Schmidt appeals.
    Abstract of the Decision.
    1. Insurance, § 822

      —when beneficiary has a vested right entitled to protection in equity. A beneficiary acquires a vested right in insurance which equity will protect if such beneficiary assists in paying the assessments or premiums under an agreement by which the proceeds of the insurance are to be paid to the beneficiary.
    2. Insurance, § 825

      —when member not entitled to change designation of beneficiary. Where a certificate is taken out for the benefit of a person named therein and delivered to such person in consideration of an agreement by the beneficiary which has been fully performed, the member is not entitled to a change of beneficiary without the beneficiary’s consent.
    3. Insurance, § 825

      —by-laws of mutual benefit association as affecting right to change beneficiary. Provision in by-laws of a mutual benefit association that a change of beneficiary may be made at any time, without the consent of any existing beneficiary, has no application to a case where the beneficiary has acquired rights in and under the certificate for a valuable consideration.
    Popham, Wolfner, Rittenhouse & Beilman, for appellant; Rudolph Wolfner, of counsel.
    Robert F. Kolb and Tatge & Koepke, for appellees.

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

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

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

4. Insurance, § 503 —when vested rights of beneficiary protected in equity. The principle that vested rights may be acquired in mutual benefit insurance which courts of equity will enforce applies likewise to life insurance policies.

5. Insurance, § 822 —assignability of benefit certificate. While a benefit certificate is not assignable at law, all beneficial interest therein may be transferred in equity; and equitable rights may be acquired in a benefit certificate which will be enforced in equity.

6. Witnesses, § 155 —when wife is competent concerning transactions regarding certificate of insurance. As against the claim of another to the proceeds of insurance as beneficiary, the wife of the member originally designated in the benefit certificate is incompetent to testify to any admissions or conversations of her husband relative to transactions concerning the certificate; but she is competent to testify to transactions relating to the certificate, such as the delivery of the certificate to her by her husband, the keeping of the certificate, the payment of dues and assessments by her with her own money, and the disappearance of the certificate while she was absent from home.


author: Mr. Justice Barnes

text:
    Walter Carlson, by Alfred Carlson, Appellee, v. John B. Johnson, Appellant.
    Gen. No. 18,003.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. John McNutt, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 2, 1913.
    Statement of the Case.
    Action by Walter Carlson, a minor, by Alfred Carlson Ms next friend, ag’ainst John B. Johnson to recover for the loss of sight of one eye while plaintiff was on a public sidewalk and alleged to have been caused by a nail or other object falling or thrown from the roof of defendant’s building while such building was being repaired by his servants and agents. From a judgment in favor of plaintiff for four thousand two hundred and fifty dollars, defendant appeals.

      Abstract of the Decision.
    1. Master and servant, § 863

      —what evidence inadmissible under the general issue. In an action against the owner of a building for personal injuries resulting from objects falling from the roof to the public sidewalk, evidence offered by defendant to show that the building was in the exclusive possession and control of an independent contractor and that defendant was not therefore liable, held not admissible under the general issue.
    2. Pleading, § 476

      —when defective statement of cause of action cured by verdict. In an action against the owner of a building in the course of being repaired for injuries sustained by falling objects, declaration failing to aver that men on the roof were defendant’s servants, held a defective statement of a cause of action cured by verdict.
    3. Appeal and error, § 785

      —when bill of exceptions construed against party preparing same. A bill of exceptions is a pleading of the party alleging the exception, and when liable to the charge of uncertainty or omission it ought, like any other pleading, to be construed most strongly against the party preparing it.
    4. Appeal and error, § 785

      —when bill of exception uncertain as to grounds for trial court’s ruling. Language of bill of exceptions held not to support appellant’s contention as to the grounds upon which trial court refused his motion for leave to file a special plea.
    Chytraus, Healy & Frost, Nels J. Johnson and Edwin White Moore, for appellant.
    Goldzier, Eodgers & Froehlich, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Pauline Tischler, Defendant in Error, v. Erie Railroad Company, Plaintiff in Error.
    Gen. No. 18,654.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 396

      —when knowledge of market value is insufficient. Testimony to the value of articles by one who did not know the market value of them, is incompetent
    2. Carriers, § 565

      —when evidence of market value of lost haggage is necessary. Where in an action against a carrier for loss of personal baggage it is apparent that the articles had a market value, a verdict for the plaintiff cannot be sustained where there is no competent evidence of the market value.
    Error to the Municipal Court of Chicago; the Hon. Charles E. Jennings, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed December 2, 1913.
    Statement of the Case.
    Action by Panline Tischler against the Erie Railroad Company, a corporation, to recover for the loss' of certain articles alleged to have been accepted and checked by defendant at Ellis Island for shipment therefrom to Rockford, Illinois. The affidavit of merits denied that the goods were lost, that there was a total damage, that they were of the value alleged, and claimed that they did not constitute personal baggage and were not knowingly accepted and checked as such. From a judgment for plaintiff for three hundred and twenty-five dollars, defendant brings error.
    W. O. Johnson and Bull & Johnson, for plaintiffs in error; Arthur S. Lytton, of counsel.
    C. S. Everett, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.

3. Carriers, § 544*—when goods received as baggage. Where an immigrant receives a baggage check for a basket trunk and a bundle from the railroad company selling her a ticket and they are sent through to the point of destination, in the absence of proof to the contrary it cannot be questioned that the check came from an authorized agent and that the goods were received as baggage.

4. Carriers, § 541*—when responsible in accepting articles as baggage. A railroad company accepting from an immigrant as baggage a bundle done up in a waterproof sack of heavy goods and tied with heavy ropes is responsible for the articles as if they were personal baggage.