author:
Messrs. Justices Higbee and Shirley
      Mr. Justice Duncan,

text:
    White Sewing Machine Company, Appellant, v. Norman M. Harris et al., Appellees.
    1. Cobpoeations—foreign corporation must comply with new act. A foreign corporation which has complied with the act of 1897 must nevertheless comply with the new act of 1905, as the terms of the latter act are substantially different from those of the former.
    2. Contbacts—what does not impair obligation of. Passing a new law requiring all foreign corporations whether licensed under a former act or not, to perform further conditions before doing business in this state, does not impair the obligation of contracts, since such former license is not an irrepealable contract, and is not a contract between the state and the corporation that the state will not exact further conditions from such corporation.
    Duncan, J., dissenting.
    Action of debt. Appeal from the Circuit Court of Pulaski county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed August 15, 1910.
    Wall & Martin, for appellants.
    C. S. Miller and Charles L. Rice, for appellees.
   Messrs. Justices Higbee and Shirley

delivered the opinion of the court.

White Sewing Machine Company sued the defendants in an action of debt on bond for $600. The declaration is in the usual form assigning breaches of the condition of the bond as the failure of said Norman M. Harris to pay six promissory notes. The defendants filed a special plea in substance that at the time of the execution of said bond the plaintiff was a corporation organized in the State of Ohio and doing business in said state for profit, and is not a railroad or telegraph company, is not engaged in the insurance, banking or money lending business, and that said writings were executed in the State of Illinois to secure the purchase price of goods sold by plaintiff in Illinois since July 1, 1905. Avers that plaintiff had not prior to this suit complied with all the requirements of an act entitled “An act to regulate the admission of foreign corporations for profit, to do business in the State of Illinois,” approved May 18, 1905, in force July 1, 1905; and was not licensed and empowered by the Secretary of State under said statute to do business in this State, and therefore plaintiff cannot maintain its action. Plaintiff in its replication replied that on September 10, 1897, it made application to the Secretary of State for a license and complied with all the terms of the foreign corporation act entitled “An act to require every foreign corporation doing business in this State to have a public office or place in this State to transact its business, ’ ’ etc., approved May 26, 1897, in force July 1, 1897, and obtained a certificate from said Secretary of State empowering it to do business in this State for ninety-nine years, etc. A general demurrer to said replication was filed by the defendants. The court entered judgment on the demurrer in favor of defendants and against the plaintiff for costs and barring its suit, etc., and plaintiff electing to stand by its replication appealed. It is conceded by both parties to this suit that the only question in this case for our decision, is whether or not a foreign corporation which has qualified to do business in Illinois under said Act of 1897, has to again qualify under the said act of 1905 in order to continue doing business in this State.

The said Act of 1897 was amended by adding a few minor details, April 22, 1899. Session Laws of 1899, p. 118. No substantial change as to the requirements of foreign corporations to obtain a license to do business in this State was made by this amendment; and, so far as we are aware, no contention has ever been made that they were required by this amendment to requalify in order to continue to do business .here. Section 4 of said act was also amended May 13, 1905; but the amendment in no way affects the question‘here, and it was repealed before it took effeet by the express provisions of section 8 of the Act of 1905, now under consideration. Session Laws of 1905, 125 and 128. The provisions and regulations with which foreign corporations for profit were required to comply before they could be permitted to transact any business in this State, as provided by the statute of 1897 and the amendments thereto, are found in paragraphs 67b and 67c of chapter 32 of Hurd’s Revised Statutes of 1899, p. 466. For the purpose of aiding a proper comparison of these two paragraphs with paragraphs 67c and 67d of the new act of 1905, wherein are found the new provisions and requirements to be met by such corporations, in chapter 32 of Hurd’s Rev. Stat. 1908, p. 539, we here below give the provisions of the old statute rearranged and transposed so that they will follow as nearly as practicable in the same order that they are found in the new act; and for convenience we will number the paragraphs 67c and 67d as numbered in the new act, and will follow each quotation from the old act with the number of the paragraph of the old act from which such quotation is taken. The statute as amended in 1899 and as so transposed reads as follows:

67c. “Every company incorporated for the purpose of gain under the laws of any other State, territory or country, now or hereafter doing business within this State,”—“such corporation by its president, secretary or any officer thereof, shall make and forward to the Secretary of State, with the articles or certificate above provided for, a statement duly sworn to, of the proportion of capital stock of the said corporation which is represented in the State of Illinois by its property located and business transacted . therein and such statement shall further show the name and address of the agent or representative of said corporation in this State.”—“and shall file in the office of the Secretary of State a copy of its charter or articles of incorporation, or in case such company is incorporated merely by a certificate, then a copy of its certificate of incorporation duly certified and authenticated by the officer who issued the original, or by the recorder or registrar of the office in which said original charter, articles or certificate may have been recorded.”—“Upon a compliance with the above provisions by said corporation, the Secretary of State shall give a certificate that said corporation has duly complied with the laws of this State, and is authorized to do business therein, stating the amount of its entire capital and of the proportion thereof which is represented in Illinois; and such certificate shall be taken by all courts in this state as evidence that the said corporation is entitled to all the rights and benefits of this act, and such corporation shall enjoy those rights and benefits for the time set forth in its original charter or articles of association, unless this shall be for a greater length of time than is contemplated by the laws of this State, in which event the time and duration shall be the limit of time set out in the laws of this state. Such corporation having complied, as aforesaid, shall be required to promptly report to the Secretary of State any change in the name and address of its agent or representative in this State, arid any increase or decrease in its capital stock, and any increase or decrease of the proportion of its capital stock represented in this State by its property and business therein, by filing in the office of Secretary of State a statement properly sworn to, setting forth the facts: provided, that nothing in this act shall be taken or construed into releasing foreign loan, building and loan, bond investment, surety, or other corporations of like character from any provisions of law requiring them to make a deposit of money with a proper officer of the State to protect from loss the citizens of this State who may do business with such corporations: And provided, further, that the provisions of this act shall not apply to railroad or telegraph companies which have heretofore built their line of railway into or through this State, nor to insurance, banking or loaning companies.” All foregoing in 67c, old Stat. “And no foreign corporation established or maintained in any way for pecuniary profit of its stockholders or members shall engage in any business other than that expressly authorized in its charter, or the laws of this State under which it may come. ’ ’ 67b old Stat.

67d. “Every corporation for pecuniary profit formed in any other state, territory or country, before it shall be authorized or permitted to transact business in this State, or to continue business therein, if already established, shall designate some person as its agent or representative in this State on whom service of legal process may be had if desired; shall have and maintain a public office or place in this State for the transaction of its business, and where proper books shall be kept to enable such corporation to comply with the constitutional and statutory provisions governing such corporation; and such corporation shall be subject to all liabilities, restrictions and duties which are or may be imposed upon corporations of like character organized under the general laws of this State, and shall'have no other or greater powers.” 67b old Stat. “And shall be required to promptly report to the Secretary of State any change in the name and address of its agent or representative in this State.” 67c, old Stat.

“Nor shall it hold any real estate except such as may be necessary and proper for carrying on its legitimate business. And no corporation incorporated under the laws of any other state, territory or country, doing business in this State, shall be permitted to mortgage, pledge or otherwise encumber its real or personal property situated in this State to the injury or exclusion of any citizen or corporation of this State who is a creditor of such foreign corporation. And no mortgage by any foreign corporation, except railroad and telegraph companies, given to secure any debt created in any other State, shall take effect as against any citizen or corporation of this State until, all its liabilities due to any person or corporation in this State at the time of recording such mortgage have been paid and extinguished.” 67b, old Stat.

“And such corporation shall be required to pay into the office of the Secretary of this State, upon the proportion of its capital stock represented by its property and business in Illinois, fees equal to those required of similar corporations formed within and under the laws of this State.” 67c, old Stat.

A careful examination and comparison of the foregoing paragraphs, comprising paragraphs 67b and 67c of the old act in a transposed form, with paragraphs 67c and 67d of the new act, show that very substantial changes and additions have been made to the old law of 1897. By paragraph 67i of the new act the said statute of 1897 with its amendments is expressly repealed, as well as “all acts and parts of acts in conflict” with the new act. By this repeal we are to understand that the new statute contains the whole law on the subject expressed in its title and that before any foreign corporation for profit shall be permitted or allowed to transact any business, or exercise any of its corporate powers in this State, other than those expressly excepted by this statute, it shall be required to comply with the provisions of the new act and shall be subject to all of the regulations prescribed therein, as is provided in 67b of the new act. After thoroughly considering the new act we think that all the sections in it are clearly intended to apply to all foreign corporations for profit, including those that have qualified under the act of 1897, except such corporations as the new act expressly excludes from its provisions. The legislature undoubtedly has the power to impose the terms by which a foreign corporation may transact business within this State. 6 Thompson on Corporations, secs. 7884 and 7887; Weidenger v. Spruance, 101 Ill. 278; People v. Rose, 207 Ill. 352; City of Danville v. Danville W. Co., 178 Ill. 299; In Re Estate of Speed, 216 Ill. 23.

Passing a new law requiring all foreign corporations whether licensed under a former act or not, to perform further conditions before doing business in this State, does not impair the obligation of contracts, since such former license is not an irrepealable contract, and is not a contract between the State and the corporation that the State will not exact further conditions from such corporation. Home Ins. Co. v. Augusta, 93 U. S. 116; Armour Pack. Co. v. Vinegar Bend L. Co., 149 Ala. 205; Western U. T. Co. v. State, 82 Ark. 309; Hammond P. Co. v. Ark., 212 U. S. 322.

It is conceded by the appellant that unless it has complied with the law in relation to obtaining a license to do business in this State that it cannot recover in this case, and such is the law. Union Lead Co. v. Reedy Elevator Co., 222 Ill. 199.

There is no question made as to the sufficiency of the pleadings to present the single question as to whether or not compliance with the law of 1897 by appellant is a sufficient compliance under the act of 1905. The majority of the court are of the opinion that the changes in the new law are so considerable, and that the wording of the new act is such as to make it clear that the legislature intended to, and that the new act does, require the plaintiff to requalify under the new act before it can legally do business in this State, and not having’ complied with the new act that it cannot maintain its suit against appellees. To hold otherwise would, in our judgment, be in effect holding that foreign corporations doing business in this State under the old law would not be required to comply with the new regulations and burdens that are added to the former requirements by the new statute, and therefore the burdens imposed upon corporations organized for the same purpose, but under the different laws, would be unequal. All foreign corporations to which this act applies should be made to conform to the same duties and regulations before doing business in this State, and we think that under the provisions of this statute it is intended to apply to all foreign corporations whether licensed to do business under the old law or not, unless exempted therefrom by the express provisions of the act. The judgment of the lower court is therefore affirmed.

Affirmed.

Mr. Justice Duncan,

dissenting.

I am of the opinion that the judgment of the lower court should he reversed and the cause remanded with instructions that the demurrer to the plaintiff’s replication he overruled, etc.

Substantially all the provisions of the act of 1897, and particularly of sections 67b and 67c thereof relating to the requirements of foreign corporations to obtain a license to do business in this State, have been almost literally incorporated in the new act of 1905. Very few additional requirements to obtain a license to do business have been made in the new act, and when we come to examine the two acts closely many of the apparent changes are mere elaborations of the old act, mere changes in language to bring out specifically the ideas expressed in the old act. The two provisions found at the close of paragraph 67c of the old act, ar.e found in substance in paragraphs 67e, 67h and 67j of the new act. Paragraph 67d of the old act prescribing the penalty, is substantially changed by the new act in paragraph 67g; but that section in no way changes the requirements for obtaining a license to do business here. Paragraph 67f of the new act contains entirely new provisions and powers and evidently applies to all foreign corporations licensed or not licensed prior to the new act, and by it the Secretary of State is empowered to obtain from any such foreign corporations any or all of the information obtainable under the sworn application for license of foreign corporations provided for in paragraph 67c of the new act. Corporations doing business in this State under the old act, and not licensed under the new act, could thereby, it seems, be required to furnish all the information called for by any provision of said paragraph 67c of the new act, that is to say, by the aid of this added section practically the same results may be obtained for the State in the way of disclosures from corporations licensed under the former act without their requalifying, as can be obtained from the foreign corporations applying for a license under the new law. If the Secretary of State exercised his powers under this added section, as it is intended he shall do, there would be little room for contention that the two classes of corporations, those licensed under the old act and those licensed under the new act, do not stand upon equal footing, either in doing business here or in the matter of requirements of them in order to continue to transact business here. “The manifest and only purpose of the act was to procure uniformity in the powers, liabilities, duties and restrictions of foreign and domestic corporations of like character, and bring them all under the influence of the same law. ’ ’ Stevens v. Pratt, 101 Ill. 206.

. The old act is undoubtedly repealed. The new act is a complete revision of all the law on the same subjects embraced in the old act, and without the express words of repeal would have operated as a repeal of the former act, as the object of both acts is the same. But whatever of the old act is restated in the revision is continued in operation, as those parts were re-enacted at the identical same moment that they were repealed. Sutherland on Statutory Construction, secs. 154, 155, 156 and 161. This author also says in the same sections that a revision is a restatement of the law in a corrected or improved form, and by adopting a revision the legislature say the same thing, in effect, as when a particular section is amended by the words, “so as to read as follows.” In such enactments or amendments he again says: “The amendment operates to repeal all of the sections amended not embraced in the amended form. The portions of the amended sections which are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along; and the new parts, or changed portions, are not to be taken to have been the law at any time prior to the passage of the amended act. The change takes effect prospectively according to the general rule. But all the provisions of the prior law amended which continue in force after the passage of the amendatory act derive their force thereafter not from the original hut the amendatory act. ’ ’ Id. sec. 133 and authorities cited under note 3.

“Where there is an express repeal of an existing statute, and a re-enactment of it at the same time, or a repeal and re-enactment of a portion of it, the re-enactment neutralizes the repeal so far as the old law is continued in force. It operates without interruption where the re-enactment takes effect at the same time. The intention manifested is the same as in an amendment enacted in the form in the preceding section - (‘so as to read as follows’). Offices are not lost; corporate existence is not ended; inchoate statutory rights are not defeated; a statutory power is not taken away nor criminal charges affected, by such repeal and re-enactment of the law on which they respectively depend.” Same author sec. 134. See also on these same doctrines, United Hebrew Ben. Ass’n v. Benshimol, 130 Mass. 325; Wright v. Oakley, 5 Met. 400 (Mass.); Steamship Co. v. Joliffe, 2 Wall. (U. S.) 450; Moore v. Township of Kenockee, 75 Mich. 332; State v. Gumber, 37 Wis. 298; State v. Baldwin, 45 Conn. 134; Middleton v. N. J. W. L. R. R. Co., 26 N. J. Eq. 269; Mitchell v. Halsey, 15 Wendell (N. Y.) 241; Capron v. Strout, 11 Nev. 304; The State v. Wiltz, 11 La. 439.

It is also laid down as a correct rule of interpretation of a statute that “where the intention as to being retrospective is doubtful the statute will be construed as prospective only; but where the language clearly indicates that it was intended to have a retrospective effect it will be so applied. ’ ’ Sutherland on Stat. Con., secs. 463 and 464.

There are some significant features of the new act of 1905 to be considered in arriving at the intention of the legislature, that are found in the parts of the old statute that are not carried into the new statute and therefore repealed intentionally. The phrases “or to continue business, if already established,” and “now or hereafter doing business within this state,” found in the beginning parts of paragraphs 67b and 67c of the act of 1897, not having been carried into the new statute nor words equivalent thereto, would seem to clearly indicate that those foreign corporations already licensed under the old law were not intended to be affected by the new act so as to compel them to requalify. If these phrases had been included in the new statute, no doubt would or could exist as to the new statute being retrospective, as was the statute of 1897. Hence, the intentional omission of these very words that would remove all possible doubts as to the application of the statute must necessarily be considered as some indication that paragraphs 67c and 67d of the new act are only to have a prospective operation and, therefore, not applicable to the plaintiff corporation which qualified under the old act. Several of the other sections of this statute, however, are clearly intended to apply to all foreign corporations, including the .plaintiff in this case; and, while the question in this case to be decided is by no means free from doubt, yet, I am of the opinion under the rules above laid down that the new act is a mere continuance and modification of the old laws, and that it should be held that the intention of the legislature is that the changes in the new act should operate prospectively; and that the plaintiff having qualified and paid its fees under the old law, should not be held to again qualify and pay fees before it can legally continue to do business in this state. I therefore respectfully dissent from the conclusion reached by the majority of the court.


source: Caselaw Access Project

author: Mr. Justice Duncan

license: Public Domain

text:
    Oliver C. White, Appellee, v. St. Louis Transfer Company, Appellant.
    1. Trial—when remarles of counsel mil not reverse. A remark as follows: “He (referring to the plaintiff) was unconscious; he did not know his wife or his children,” held, not serious and not ground for reversal where not assigned as error.
    2. Master and servant—when notice of defects not essential. Where the defect is in construction of the appliance and particularly where it is shown the master constructed the defective appliance, the master is chargeable with notice from the time of such defective construction.
    3. Master and servant—duty of inspection. The primary duty is in the first instance upon the master; such duty, however, may be cast upon the servant by special contract, or by general or special rules or orders brought home to him, when such investigation is within his reasonable capacity.
    4. Instructions—predicated upon evidence. Even though an instruction states a correct principle of law it should not be given if such principle of law finds no support in the evidence.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    Rehearing stricken from files, March 28, 1911.
    Wise, Keefe & Wheeler, for appellant.
    F. C. Smith, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

A judgment for $650 in this case was reversed in this court at the February term, 1908, for the reason that it was manifestly against the weight of the evidence. 147 Ill. App. 160. After the cause was remanded an additional count to the declaration was filed charging that the defendant negligently furnished to appellee, for his use, a wagon with a double-tree which was defective, cracked and unsuitable for the use to be made of it, all of which the defendant knew or might have known and of which defect the plaintiff did not know, and did not have equal means of knowing’. On a second trial the plaintiff obtained a judgment against the defendant for $1,600 and the defendant again appealed. The evidence of the plaintiff in the second trial tends to show that the double-tree had an old crack running from the king-bolt hole straight-away with the grain of the wood, and which materially weakened it and caused it to split out and break. It also, tends to show that the double-tree was placed on the wagon with the rear side front, and thereby causing the whole pull of the load to go against the weak side of the double-tree.. The evidence for the defendant tends to contradict both of these propositions; and the double-tree was itself put in evidence, and it has been certified here as original evidence. It seems to be a sound piece of hickory four feet and four inches long, two inches thick, five inches wide in the center, with one straight edge and the other bowing or curving toward each end until it is about two and three-fourths inches wide at each end or near each end and before reaching the clips on which the single-trees hang. The center of the king-bolt hole is two and one-quarter inches from the straight edge. A straight line passed through this hole parallel with the straight edge would a very little more than split off the bow part of the double-tree, taking a very small sliver off each end before reaching the clips. The wood is in no way bolted together but it has a strip of iron about seventeen inches long nailed at the center of the straight edge. The bow part of the double-tree worked opposite the horses as it was ironed and used, the straight edge with the iron support being in front. This double-tree was broken by simply splitting off the bow side of the wood the line of said split passing through the center of the king-bolt hole and running out before it reached one of the clips and breaking a sliver about one-half inch thick at the other clip on the bow side. We cannot satisfactorily say from the evidence whether or not the double-tree was defective by reason of it being so ironed that the rear edge of it was worked in front; or, in other words, we cannot say from an inspection of it that the bow part should or should not be worked to the front. The evidence on this subject is in conflict. But it requires no expert to say very readily that the pull of the load was against the weak side of the double-tree, that is to say it would have been much stronger if worked with the straight side to the rear. The iron on the straight edge and the bow side then would both have added great strength to it and instead of splitting the double-tree open with the grain of the wood and breaking only a half inch thickness at one end it would have had to break across the grain the full width of the double-tree assisted still by the iron strip. In other words we think it is clearly shown by the exhibit itself that it was improperly and defectively made, that the king-bolt hole should have been against the straight side of the double-tree and between "it and a proper iron placed on that edge to fit, or that the double-tree should have been worked on the wagon with the bow forward. We think anyone with good common judgment from an inspection of it will be forced to the conclusion that this double-tree is seriously defective in its construction and that it was not reasonably safe as constructed. Every bolt hole put through the center line of this double-tree weakened it, and there were six of them besides the king-bolt hole. The pull of the load was in this line running’ with the grain of the wood and pulling against the weak side of the wood, and all it had to do, which it did, was to split out with the grain. This feature of the case was not called to the attention of this court when the case was here before. We have searched this record carefully, and as the defendant made this double-tree and put it on the wagon, we are of the opinion that the evidence shows that the defendant is guilty of the negligence charged in the declaration; and that the plaintiff is not guilty of any negligence contributing to bis injury. The evidence simply shows that he had loaded about 5,000 pounds of Christmas goods on a wagon ordinarily carrying 8,000 or 9,000 pounds; and that when he climbed to his seat, about ten feet from the ground, and started the horses, the double-tree simply split out by reason of the defects aforesaid; and he was dragged from his seat and on to the brick pavement head foremost before he realized 'anything was wrong, and received a severely fractured skull from which he never will recover according to the. physicians.

Considerable attention is given by appellant to what they term improper remarks of counsel for appellee in his closing argument to the jury. We have examined the same and do not regard them as very serious, the remarks objected to being, “He (referring to plaintiff) was unconscious. He did not know his wife or his children.” The court sustained an objection to them at the time made; but as counsel for appellant did not regard them seriously enough to assign them as one of its grounds of error, they cannot be further considered here.

It is insisted that the plaintiff failed to show actual or constructive notice of the defective double-tree to the defendant for a sufficient time to enable it to repair same before the plaintiff’s injury. .Where the defect is in the construction of the appliance, and particularly where it is shown the defendant constructed the defective appliance, the defendant is chargeable with notice from the time of such defective construction. C. C. C. & St. L. Ry. Co. v. Dixon, 49 Ill. App. 292; Crown Coal Co. v. Hiles, 43 Ill. App. 310; Alexander v. Town of Mt. S., 71 Ill. 366.

The "primary duty of inspection is in the first instance upon the master or employer; and, while it may be cast upon the servant by special contract, or by general or special rules or orders brought home to him, when such investigation is within his reasonable capacity, yet in this ease no sufficient proof of such rules or contracts was made. Neither was there any proof of notice of snch defect or of such rules, if any, to the plaintiff; and the defendant was chargeable with notice of the defect:

We have examined the tenth instruction given for appellee, being the second one on page 37 of the abstract ; and have considered the same with reference to the objections made to it by appellant. While it is true that where the plaintiff has equal means with the master of knowing the defect, it will ordinarily'bar a recovery for injury because of that defect; yet2 in this case, there is no basis upon which to support the claim of equal knowledge. The defendant is absolutely chargeable with notice of this defective double-tree because the defect was in the construction of it, and the defendant made it. The plaintiff had no knowledge of it at all and very little opportunity to discover the defect. He got the wagon that morning in the wagon yard of defendant, before day, and was injured about seven o’clock a. m. of that day, November 7, 1907; and never had used it or seen it before, so far as this evidence shows. Neither does it appear from the evidence that the wheel was blocked by a tie, and that the double-tree was broken by reason thereof. We think the evidence clearly shows the tie was put under the wheel to block it after the injury to the plaintiff. The witness who put it there expressly so swears.

The damages were very low for the serious injury proved. They are not complained of as excessive. We think the jury was clearly warranted in its finding in this case, and that the judgment of the lower court should be, and it is therefore, affirmed.

Affirmed.


author:
Mr. Justice Duncan
      Mr. Presiding Justice Shirley

text:
    Catherine Healy, Administratrix, Appellee, v. Mobile & Ohio Railroad Company, Appellant.
    1. Courts—powers of judge of County Court. Except in the special instances provided by statute a county judge has no power to preside over a city court.
    2. Judgments—effect of lack of jurisdiction. Lack of jurisdiction renders a judgment and all proceedings leading up thereto a nullity, and the question may be raised for the first time on appeal.
    Shirley, P. J., dissenting.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. John B. Vaughn, Judge, presiding.
    Heard in this court at the March term, 1910.
    Appeal dismissed.
    Opinion filed November 12, 1910.
    Rehearing denied and opinion modified May 20, 1911.
    Lansden & Lansden and John L. Flannigen, for appellant.
    F. C. Smith, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

Four judgments rendered against appellant by the City Court of East St. Louis in this cause have been reversed and at every reversal the case has been remanded for new trial by this court. 100 Ill. App. 586; 109 Ill. App. 531; 122 Ill. App. 275; 151 Ill. App. 310. The last three reversals were based on the ground that the verdict was manifestly against the weight of the evidence. A complete statement of the case> as heretofore made, is set forth in the printed volumes above noted. On April 18, 1906, the second written stipulation was made between the parties as follows:

“It is hereby stipulated by and between the parties to the above entitled cause that when said cause is tried it shall be tried upon the same evidence which was introduced on the last trial of said cause in said City Court, and that either party to said cause shall have the right to read on the trial of said cause from' the bill of exceptions made np on the last trial of said cause the testimony of any witness contained in said bill of exceptions. It is further stipulated that the said cause shall be stricken from the trial calendar and shall stand continued until the next term of this court. ’ ’

At the March term of said court, 1907, trial was had under said stipulation, and a verdict for $1,999 was set aside on defendant’s motion for new trial. At the December term, 1907, said court denied plaintiff’s motion to set at naught said stipulation and admit additional evidence; but entered judgment against appellant on a verdict for $1,250, which was the fourth judgment reversed by this court. At the January term, 1910, of said City Court, after notice to defendant by plaintiff that it would insist said stipulation was void except as to the first trial thereafter and offer additional evidence, the parties further stipulated in writing that either party might read in evidence from the bill of exceptions made up on the last trial. In said last stipulation it was declared that the defendant insists that the stipulation of April 18, 1906, is still in full force and effect and that by reason thereof plaintiff has no right to offer additional evidence; and that plaintiff insists the stipulation is now void. Judge Vaughn, County Judge of Macoupin county, was called in and sitting as trial judge at said last term, tried this case and held in said trial that said stipulation of 1906 was not binding, and allowed plaintiff over the objection of the defendant to introduce the testimony of an additional witness, J. W. Hendricks. The defendant then introduced four additional witnesses to contradict and impeach said Hendricks, at the same time protesting that the additional evidence ought not to have been allowed. Judge Vaughn then entered judgment on the verdict of the jury for $1,999, and the defendant again appealed.

The defendant insists that Judge Vaughn who presided at the trial below had no authority to sit as a Judge in said City Court and that therefore the whole trial was a nullity and that the judgment is also void. The only authority urged to sustain the jurisdiction of the presiding judge in this case is section 6 of the Act entitled “An Act in relation to Courts of record in Cities,” which reads as follows: “Such Judges (City Judges) may, with like privileges as the judges of Circuit and County Courts, interchange with each other, and with the judges of Circuit, Superior, County and Probate Courts, and (City Judges) may hold court for each other, and for judg’es of Circuit, Superior, County and Probate Courts, and (City Judges may) perform each other’s duties, and the duties of judges of Circuit, Superior, County and Probate Courts, when they find it necessary or convenient.” Hurd’s Eev. Stat. 1908, p. 661.

The parentheses appearing in said quoted section are ours and are inserted for the purpose, simply, of emphasizing the clear intent and meaning of the said section. This section does not purport to enumerate any of the powers or duties of county judges; but does very fully enumerate the powers and duties of city judges when called into other courts. The only sections in our Statutes, so far as we are able to find, that empower a county judge to hold court in a city court or to try any case originating in a. city court, is found in section 14 of the same act above quoted from, and section 90 of our. Practice Act passed in 1907. Hurd’s Stat. 1908, p. 1632. Said section 14 authorizes a county judge, when a change of venue has been taken for prejudice of a city judge, to he substituted in the place of such city judge, by the consent of the parties to the suit, and if they cannot agree, then by the judge of such city court. Said section 90 authorizes the clerk of a city court, in case of death, removal, resignation or disability of the judge thereof, to select and call in any county judge and then such judge shall have the authority, right and duty of the duly elected judge of such city court. While it is true that interchange ordinarily means exchange, yet conceding that it has that meaning in the statute mentioned, we do not think it authorizes the construction that a county judge may be called into a city court to try cases with the same authority, power and duty of a city judge except in the special instances above named. Particularly are we driven to this conclusion because of the fact that said statute particularizes and names the duties and powers only of the city judge without therein naming any powers that a county judge may have in a city court until said section 14 is reached. If the legislature meant by said section 6 to give all the powers of a city judge to a county judge in a city court by exchange, then the latter part of section 14 so far as it applies to county judges holding court in a city court was a useless act. “The maxim, eccpressio unius est exclusio alterius, is applicable to a statutory provision which grants originally a power or right. In such cases the power or right originates with the statute and exists only to the extent plainly granted. * * * This conclusion is almost self-evident; for since the statute creates and regulates, there is no good ground for claiming or proceeding except according to it.” Sutherland on Stat. Con. sec. 325.

After a.-; careful examination of the statute we are of the opinion that Judge Vaughn was without jurisdiction to try this case in the City Court, as it ap-^ pears from the record that he was simply called to try the case by the voluntary act of the judge of said City Court. Lack of jurisdiction renders the judgment and all proceedings leading up thereto a nullity, and the question may be raised for the first time on appeal. Fisher v. City of Chicago, 213 Ill. 268. ■

For the reasons above given the trial judge was not authorized by law to sit as a judge in the trial of this cause and the judgment is a nullity and there is no legal judgment from which to appeal. The appeal is therefore dismissed.

Appeal dismissed.

Mr. Presiding Justice Shirley

dissents.

I dissent from the foregoing opinion holding the county judge did not have jurisdiction to try the cause. Such jurisdiction seems to me to be clearly conferred by the statute cited in the opinion authorizing city judges to interchange with county judges.


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    Robert C. Gould, Appellee, v. M. L. Tilton, Appellant.
    1. Suretyship—when proof of damnification essential to recovery. If A assumes the obligation of B, as between A and B, B is the principal debtor; and before A can recover of B, he must show that he has been damnified by the failure of B to perform his obligation.
    2. Instructions—when, as to whether instrument became binding as a promissory note, proper. Held, that an instruction was proper which was to the effect that although the defendant signed the note in question yet such signature alone would not make such note valid and that before such note would be valid it must further appear that the same was delivered to the payee with the intention that it should become a valid and binding instrument, and that if the jury found from the evidence that it was understood between the plaintiff and the defendant that such note should be signed by the defendant’s wife before the same should become valid, then the said note never became a valid and binding instrument.
    Assumpsit. Appeal from the Circuit Court of Wabash county; the Hon. J. R. Creighton, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    Statement by the Court. This suit in assumpsit was brought by appellee to recover of appellant, Tilton, the sum of $268.16, the amount of a bill of shoes bought by appellee from Friedman-Shelby Shoe Company, which was a part of a stock of goods located at Wayne City, Illinois, which was traded by appellee to appellant for certain houses and lots in Mt. Carmel, Illinois. The shoe bill had not been paid to Friedman-Shelby Shoe Company at the time this suit was brought, by either appellant or appellee. Appellee claims that appellant assumed the payment of this bill when the trade was made; and that about'two weeks after the trade was made appellant signed a note for the said amount payable to appellee on April 1, 1910, to show that appellant assumed this shoe bill; and that he, appellee, wrote in the note that it was given for the Friedman-Shelby Shoe bill, $268.16. Appellee also claims that when appellant shall have paid the shoe bill appellee is to return appellant the note; and that when appellant signed the note and gave it to him that he, after thinking the matter over, asked appellant to have his wife sign it, too, and that appellant promised to do so and return it, but that he never returned the note and told appellee he had destroyed it. Appellant denies that he assumed said debt; admits that he signed the note while having trouble with another man, but did not understand what he was signing; admits destroying the note, but claims that it was never delivered as a note. The declaration contained three counts, the consolidated common counts, a special count on the note in question, and a special count declaring on the contract by which the trade was consummated, averring a promise to pay appellee as a part of said contract said sum of $268.16 by April 1, 1910, and a failure to pay said sum as agreed. The trial below resulted in a judgment for appellee against appellant in the sum of $268.16.
    P. J. Kolb, for appellant.
    Howard P. French and Green & Risley, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

The note in question, even if it be conceded that it was delivered as a promissory note, was clearly proved to be merely a note to indemnify appellee against loss or damage in case he should have to pay to the said shoe company the said shoe account of $268.16. The note itself sufficiently disclosed this fact, and the evidence in the case clearly proves it without any controversy about it. Assuming also that appellant assumed this account and agreed to pay it, a fact which he strenuously denies, appellee could not recover upon either the note or the contract unless he should prove that he was damnified, that is, had paid the bill to the shoe company in money or property. As between appellee and appellant, assuming that appellant had agreed to pay this bill as a part of his contract and trade, appellant was the principal debtor while appellee’s liability is only secondary. Moore v. Topliff, 107 Ill. 241; Harts v. Emery, 84 Ill. App. 317.

Before plaintiff can recover in this case on the supposed promise of appellant to pay said account, he must have paid the account in question to the shoe company, in money or its equivalent. Otter Creek L. Co. v. McElwee, 37 Ill. App. 285; Bonham v. Galloway, 13 Ill. 68; Darst v. Bates, 51 Ill. 439; Stevens v. Hurlburt, 25 Ill. App. 124. Therefore the court erred in refusing to give appellant’s refused instruction No. 1 which is a good instruction based upon the doctrine laid down in the foregoing cases.

In an action upon an instrument of indemnity, the plaintiff must aver in his declaration and prove, that he has been damnified by having to pay. The measure of his damages in such case, if any, is the amount he had to pay on the claim against which he was indemnified. Israel v. Reynolds, 11 Ill. 218; Smith v. Riddell, 87 Ill. 165; Stevens v. Hurlburt, 25 Ill. App. 124.

The agent of the shoe company testified that appellant assumed this debt and agreed to pay it to the shoe company. The appellant denied making any such promise. We cannot settle this question and do not desire to comment further on the merits of the controversy. However, it is clear that if appellee be allowed to recover under the state of the evidence in this record without proof that he is. damnified, appellant would be made to take the risk of again paying’ it to the shoe company. The law as above stated is intended to relieve just such situations.

Appellant’s refused instruction No. 2, to the effect that although the defendant signed the note in question, yet such signing alone would not make such note valid, and that before such note would be valid it must further appear that the same was delivered to the payee with the intention that the same should become a valid and binding instrument, and that if the jury found from the evidence that it was understood between the plaintiff and defendant that the note in question in this suit should be signed by the defendant’s wife before the same should become valid, then the said note never became a valid and binding instrument, etc., stated the law correctly and it was applicable to the facts proved. This instruction was necessary to the proper presentation of the defendant’s defense and it was error in the court to refuse it. As the case will have to be reversed, it will not be necessary to pass on the other errors assigned as the matters upon which they are predicated cannot possibly again arise in the consideration of the case.

For the errors indicated the judgment of the lower court is reversed, and the cause will be remanded.

Reversed and remanded.


text:
    Lon Bledsoe, Appellee, v. Ziegenhein Bros. Furniture Company, Appellant.
    1. Replevin—when judgment though informal sufficiently orders return of property. Held, that the following judgment though not technically formal, sufficiently ordered a return of the property replevied:
    “It is therefore considered and adjudged hy the court that the defendant have and recover of the plaintiff the costs by him in this behalf expended and that he have execution therefor, and it is further ordered and adjudged by the court that a writ of retorno habendo issue as the law directs for the return of the property mentioned and described in the writ of replevin.”
    2. Amendments and jeofails—power of court to amend judgment after lapse of term. Where in a court of record a mistake has been made in the entry of a judgment, and there is a minute, entry, pleading or files in the cause, by which the court is able to see that the record, as made, does not correctly represent his actions, he has the power, at a subsequent term, to amend and correct such record in accordance with the facts so as to sustain the rights of the parties. Held, in this case, that the fact that the court in its minutes awarded a writ of retorno was sufficient evidence to warrant the court in finding that the court in fact gave judgment that the property be returned.
    Replevin. Appeal from the City Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Statement by the Court. At the May term, 1910, of the City Court of East St. Louis, upon notice having been served upon appellant for that purpose, a judgment in replevin entered at the January term, 1910, in favor of the appellee and against the appellant, was amended by order of said court directing the clerk thereof to amend the record, nunc pro time, to correspond with the minutes of the judge of the court at said January term. The portion of the judgment as amended, and against which appellant complains reads as follows: “It is therefore considered and adjudged by the court that the defendant have and recover of the plaintiff the costs by him in this behalf expended and that he have execution therefor, and it is

      further ordered and adjudged by the Court that a writ of retorno habendo issue as the law directs for the return of the property mentioned and described in the writ of replevin.” The foregoing words in italics constitute the actual amendment that was ordered made by the court. In the original trial of the replevin suit the plaintiff took non-suit at the close of its evidence. The minutes of the trial judge in the original trial in replevin were introduced in evidence to sustain the motion to amend the record, and are in the exact words and figures as follows: “January Term, 1910, 2-8. By agreement of parties this case is tried at the present term of this court; case called for trial; parties ready; jury called and sworn, evidence heard for the plaintiff; on motion of plaintiff he takes a non-suit; non-suit granted; writ of retorno habendo is awarded and judgment for costs, fi. fa.” Said original cause was tried and the order entered on February 8, 1910. The said January term expired by adjournment February 23, 1910. The next term of said court convened March 14, 1910; and said March term adjourned finally April' 28, 1910. The clerk of said court testified that it was by his mistake or omission that said original record did not show an order awarding the writ of retorno habendo for the return to the defendant of said property replevied.
    Alexander Flannigen and B. H. Canby, for appellants.
    W. M. Vandeventer and W. E. Knowles, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

The substance of appellant’s complaint on this appeal is that the court erred in making the order which it did make on said motion, because said minutes were and are erroneous and not sufficient to warrant such amendment. Technically speaking the court is not warranted in ordering issued the writ of retorno habendo until the formal order and judgment of the court is entered that the defendant recover of and from the plaintiff the property taken under the writ of replevin. Section 22 of chapter 119 of Hurd’s Eevised Statutes provides: “If the plaintiff in an action of replevin fails to prosecute his suit with effect, or suffers a non-suit or discontinuance, or if the right of property is adjudged against him, judgment shall be given, for a return of the property. * * * unless the plaintiff shall, in the meantime, have become entitled to the possession of the property, when judgment may be given against him for costs. ” We cannot go into the merits of the original suit as they are not presented by this appeal. No reason appears why the court was not warranted in entering up a judgment for the return to the defendant of the property. The real questions are, has-it entered up such a judgment by its amended record, and was it warranted in making such amendment under the evidence. The amended judgment “ordered and adjudged by the court that a writ of retorno habendo issue as the law directs for the return of the property mentioned and described in the writ of replevin.” We think this judgment is a sufficient judgment for the return of the property, although not put in the usual and best form for such judgments. Ordering and adjudging that a writ issue as the law directs (that is, as the statute directs) for the return of property implies the ordering and adjudging that such property be returned and that a writ issue for that purpose. The difference in such an order and an order that such property be returned to the defendant and that a writ of procedendo issue therefor, is only technical; and such technicalities are not now favored under section 3 of chapter 7 of our statutes which provides that no judgment shall be reversed in the Supreme Court for mere error in form. Similar judgments, though hardly so complete as the one before us, have been sustained as sufficiently formal and, in terms, as judgments that the property be returned. Those cases we are .inclined to follow and here cite them. McCrory v. Hamilton, 39 Ill. App. 490; American Preservers’ Company v. Bishop, 83 Ill. App. 493; Same v. Same, 88 Ill. App. 444. "We do not think that the .holding of the Supreme Court in American Preservers’ Company v. Bishop, 184 Ill. 68, goes to the extent of holding that such words as are found in the case before us are not equivalent to a judgment for the return of the property.

We are of opinion also that the motion to amend and the evidence in this record is amply sufficient to authorize the court to enter a judgment for the return of the property in question and to award a proper writ therefor. Where, in a court of record, a mistake has been made in the entry of a judgment, and there is a minute, entry, pleading or files in the cause, by which the court is able to see that the record, as made, does not correctly represent his actions, he has the power, at a subsequent term, to amend and correct such record in accordance with the facts so as to sustain the rights of .the parties. Denhard v. Dunbar, 98 Ill. App. 266; Harris v. Schilling, 108 Ill. App. 116. The fact that the court in its minutes awarded a writ of retorno habendo is sufficient evidence in our judgment to warrant any court in finding that the court in fact gave judgment that the property be returned. It is the only judgment in such a case that such a writ could properly follow. We have been cited to no case in which it has been held that proof that a court ordered a writ of retorno habendo for the return of the property replevied is not sufficient, in the absence of contrary evidence, to base a finding that the court rendered judgment for the return of such property. A number of Illinois cases seem to hold that such evidence is sufficient. Am. Preservers’ Co. v. Bishop, 83 Ill. App. 493; Same v. Same, 184 Ill. 68; and Fitzgerald v. Gore, 105 Ill. App. 242, which positively holds that such evidence is sufficient.

The judgment of the lower court is affirmed.

Affirmed.


text:
    Rosina Behler, Administratrix, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Negligence—what does not tend to establish wilfulness. An honest effort to warn and to keep one away from danger Is not evidence of an intent to injure even if there was a more safe way to prevent the injury.
    2. Contributory negligence—when bars action notwithstanding wilful injury is charged. If the evidence fails to establish wilful injury by the defendant as charged in the declaration and if the evidence establishes as a matter of law the contributory negligence of the plaintiff’s intestate, a judgment of reversal with findings of fact will be entered on appeal.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of White county; the Hon. J. R. Creighton, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed April 15, 1911.
    Noah C. Bainum, for appellant; L. J. Hackney and F. M. Parish, of counsel.
    Isaac T. Spence and Joe A. Pearce, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

Eosina Behler, administratix of the estate of Marx Behler, deceased, appellee, recovered a judgment in the lower court against the appellant railway company in the sum of $500 for the death of said Marx Behler by reason of the alleged wilfulness and negligence of appellant. Marx Behler was about fifty years of age and was killed on March 22, 1909, while employed by appellant in the distribution of a train load of railroad ties on appellant’s railroad.about three miles north of Eldorado, Illinois, by being struck on the left side of the head with a railroad tie thrown from one of the cars of said train by three other section men of appellant while unloading and distributing said ties. The deceased had been employed as a section hand on the appellant’s road for about three years and had worked at the job of distributing ties from trains along the railroad many times before his death, as shown by the record, it being a part of the employment of section men on said road to do such work. He left surviving him his widow, Bosina Behler, and four children. He was a strong, healthy man up until his death, earning $1.50 per day, with which he supported his family.

The declaration charges in substance in the first two counts thereof that the defendant’s foreman and vice-principal wilfully, carelessly and negligently permitted the said employes of the defendant to throw said tie out of said car and onto the deceased after discovering his dangerous position. The third count charges that the defendant negligently failed and refused to provide the said deceased with safe cars, engines and trains, and with a safe place in which to work, and failed to provide him with reasonably sáfe and careful employes with which to work, and negligently threw said tie against him. The charge in the fourth count is that said foreman negligently ordered the deceased to quit his work as a section hand and to engage in the more dangerous work of distributing ties on the railroad with which work the deceased was not familiar, and wilfully and negligently permitted said employes to throw said tie out of the car and against the deceased, etc., whereby he was killed.

Appellant insists here that the court erred in overruling the defendant’s motions to exclude the evidence from the jury, and to direct a verdict of not guilty at the close of the plaintiff’s evidence, and again at the close of all the evidence. The record properly presents these questions here, and under our conclusions in this case, it will not be necessary to consider any of the other questions raised by the parties. In addition to the foregoing facts which are uncontradicted the evidence discloses that the train in question consisted of box cars and coal cars loaded with ties which were to be distributed along the appellant’s right of way from Carmi to Eldorado. The train was in charge of Clifford Wright, supervisor of tracks for appellant, and the men employed on the train for the work of distributing the ties were two section gangs of appellant accompanied by their section foremen, C. C. Baker and Martin Smiley. The only instructions that were given that day were given by Wright, the supervisor, who instructed the foremen and all the men on the day in question before they started with the train, to be careful in unloading the ties, and not to let any of the men be along the side of the cars, except at box cars where they threw them back, while they were throwing out ties. All the men employed were so instructed, and every one worked where the occasion seemed to require him. Where they were unloading box cars it required a ground man to move the ties back clear of the track because the men were not able at all times to clear the ties from the track, owing to the manner in which they had to be unloaded from the box cars. The deceased just before he was struck with the tie had been doing this work of moving ties back in the clear that were being unloaded from box cars. The tie that struck the deceased was thrown from a coal car which' was about eight feet high from the ground and about four or five feet deep from the top of its sides to its floor. The train was still at this time and three of the section men were throwing ties from this ear, and they were working rapidly in order to clear away for another coming train, and had already thrown from three to five ties from it at the place of the injury and were throwing them from the bottom layer of ties. Martin Smiley, section foreman, was at this time sitting on the north end of this car at the east side thereof with his feet out and facing south. The deceased from a point south of this car and on the east side of the train started north walking close to the cars. When he got to the east door of the box car and next car south of the coal car, Earl Hanley who was working on the ground at the box car door told Behler to hold on, “that a fellow was shooting them (ties) out up there.” Hanley says Behler stopped a minute, and then went on behind Hanley towards the coal car. When Behler was about two feet south of the south end of the coal car Smiley, section foreman, shouted at him “to look out, they are throwing ties out of there.” Behler at that warning ducked his head and went forward a little faster, and when he had gotten about nine or ten feet farther he was struck with the tie as it was thrown from the car. Just opposite and east of this car there was a small pond. Deceased could have gone around oh the east side of the pond, but instead went between the car and the pond. Patrick Grogan, another witness for plaintiff and who was close to Behler when struck, says he shouted to him, “look out,” and that Behler dodged the first tie thrown but was hit with the next one. Other men near Behler shouted words of warning to him as he approached the car, but none of the warnings stopped the deceased, although his actions showed clearly he understood them. Some of the witnesses say the men in the car could not see Behler, and that Behler could not see them. The men who threw the tie say they did not, and could not, see him at that time, and could not stop the tie after they learned of his danger. The foregoing facts are not disputed, and are all the controlling facts in the case. It is clear that as to all charges of negligence, simply, in the declaration that the appellee has failed to make out a case of recovery against appellant because the law casts the burden upon her to prove by a preponderance of the evidence that the deceased was at and just prior to his injury in the exercise of ordinary care for his own safety. The undisputed evidence very clearly and conclusively shows that the deceased was guilty of contributory negligence, and there can be no other reasonable conclusion drawn when all the evidence is considered. The appellant was entitled to a verdict upon those issues. C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492; Beidler v. Branshaw, 200 Ill. 425.

While it is true that contributory negligence is no defense to an injury that is wilfully or wantonly committed, still it is also clearly established by the foregoing evidence that the appellee has failed to prove that the deceased was killed by reason of the wilful conduct of the defendant or its foreman that is charged in the declaration. The evidence shows that the deceased was thoroughly warned and apprised of his danger by Smiley and others, which was the natural and usual way to undertake to save one.when approaching danger, and Behler evidently thought he could avoid the ties by stooping and dodging. The shouts of warning to the deceased in the hearing of the men handling the tie was also a note of warning to them that some one was in danger, and they swear it was too late for them to withdraw the tie after they had notice of his danger. The evidence undisputedly shows that the foreman did not wilfully permit them to throw the tie on him, and we do not see how the facts could be viewed otherwise. ' An honest effort to warn, and to keep one away from danger, is not evidence of an intent to injure, even if there was a more safe way to prevent the injury.

The court erred in refusing to exclude the evidence from the jury and to direct a verdict of not guilty. The judgment of the lower court is therefore reversed without remanding.

Reversed.

Finding of facts to be incorporated in the judgment:

We find as ultimate facts that the deceased, Marx Behler, was not in the exercise of ordinary care for his own safety at and just before the time of his injury, that he was guilty of contributory negligence, and that appellant was not guilty of the wilful or wanton conduct charged in the declaration.


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    John Zoore et al., Defendants in Error, v. A. C. Terhune, Plaintiff in Error.
    1. Pabties—when joint action does not lie. Two laborers separately employed who show no joint interest in the compensation to be paid to them respectively, are not entitled to maintain a joint action.
    2. Pasties—how action should proceed upon death of co-partner. If an action be instituted by co-partners, upon the death of one co-partner the action should proceed by the remaining partner as “surviving partner.”
    3. Wages—when attorney’s fees improper in action for. If no written demand has been made on the defendant at least three days before suit is brought for a sum not exceeding the amount found due, an allowance for attorney’s fees is improper. The statute must be complied with in every particular to entitle the plaintiff to recover attorney’s fees.
    4. Appeals and ebbobs—effect of appellee’s failure to file brief. In the Fourth District the failure of the appellee to file a brief is ground for a pro forma reversal.
    Action commenced before justice of the peace. Error to the County Court of Franklin county; the Hon. A. D. Webb, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    Walter W. Williams, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

This was an appeal from a justice of the peace court, and on a trial before the County Court without a jury, judgment was rendered in favor of defendants in error and against A. C. Terhune, plaintiff in error, for $12 as damages and for $15 as attorney fees and for costs of suit.

The record-shows that John Moore and Charley Cockrum began this suit jointly against the defendant to recover for wages due them on an alleged contract to plaster a house for plaintiff in error. Before the trial in the County Court Charley Cockrum died, and his death being suggested on the record, B. B. Cockrum; as his administrator, was substituted as party plaintiff, and the suit proceeded to judgment with Moore and said administrator as joint plaintiffs.

The theory for joining Moore and Cockrum as plaintiffs seems to have been grounded on the supposition that they were partners in this contract of employment. The evidence for plaintiffs only tends to prove that Moore and Cockrum were each separately hired by the defendant at $1.50 per day and that they worked-four days each. No joint interest of any kind in the $12, for which judgment was rendered, is shown by this record. The only evidence tending to show a joint right to sue is one statement of Mr. Moore in his evidence that “We were sorter partners.” This was stated in answer to the court’s question: “Were you and Mr. Cockrum partners in this work?” All the other evidence as to their employment shows separate contracts, and that there was no partnership between them. It is elementary that an action at law can only be maintained by the party or parties in whom the legal title exists, and no party should be joined as plaintiff who has not a joint interest with the other plaintiffs in the-subject of litigation in actions ex contractu. Dix v. Mercantile Ins. Co., 22 Ill. 272; Frye v. Bank of Ill., 5 Gilm. 332. If they had been partners, on the death of Cockrum, Moore, the surviving partner, would have taken the exclusive title to this debt and all other assets for the payment of partnership debts, and the right to sue for same would have devolved upon him. Miller v. Jones, 39 Ill. 54; Finnegan v. Allen, 60 Ill. App. 354.

A demand, to be legal and binding on the defendant and to entitle plaintiff to attorney’s fees in a suit for wages by a mechanic, must be in writing, must be made on defendant at least three days before suit is brought and must be for a sum not exceeding the amount found to be due and owing. Hurd’s Rev. Statutes of 1905, par. 13, chap. 13. No such demand was proven in this case, and under the evidence in this record no attorney fee should have been allowed. The statute must be complied with in every particular to entitle a plaintiff to recover attorney’s fees. The judgment of the lower court might have been reversed pro forma for failure of defendants in error to file briefs in accordance with our rule No. 27, but we prefer in this case to decide it on its merits as the cause will have to be remanded. It is clear that if defendants in error have any right of action against the plaintiff in error, they must maintain separate suits against him. For the errors indicated in the foregoing, the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Charles Levi, Appellee, v. Illinois Box Company, Appellant.
    1. Master and servant—when doctrine of assumed risk applies. If the device which caused the injury was simple and easily understood by any person of ordinary intelligence; if, likewise, the alleged defects were open and obvious and the dangers thereof equally plain and obvious; and if, further, the evidence shows that the plaintiff thoroughly understood and appreciated them, the doctrine of assumed risk applies and a recovery in favor of the servant will not be sustained.
    2. Master and servant—what does not prevent application of doctrine of assumed risk. As to defects and dangers which are open and obvious, which are presumed to be known and appreciated by the servant, the law will not permit a recovery even though such servant testified that he did not see such defects and did not comprehend the dangers thereof.

      3. Master and servant—what essential to recovery for failure of former to furnish safe place. In order for a servant to recover for the failure to furnish a reasonably safe place in which to work or a reasonably safe appliance with which to work, he must allege and prove want of knowledge on his part of the defects of the alleged device. This rule does not arise upon the ground of contributory negligence upon the part of the servant but upon the doctrine of assumed risk.
    Action in case for personal injuries. Appeal from the' City Court of Alton; the Hon. J. E. Dunnegan, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed April 15, 1911.
    Statement by the Court. In the manufacture of boxes in the city of Alton, Illinois, the appellant uses four machines called sand machines, driven by steam power. These wheels resembled in appearance large grind stones, are about forty-eight inches in diameter and were numbered from 1 to 4. Upon their faces, as distinguished from their edges, was placed coarse sand-paper, thereby making their faces actual grinding surfaces. Their use was to grind down the edges of common boxes to make the edges smooth and to present a marketable appearance. Tables of the length of the diameters of the wheels and fastened to the frames of the machines were set next to the faces of the sand-wheels, upon which the boxes were placed to be ground. The tables were extended sixteen inches outward from the wheels. Nos. 3 and 4 were attached to the opposite ends of an axle in the middle of which was a pulley, over which ran a belt connected with the steam-driven main shaft, by which the two sand-wheels were revolved about 400 revolutions per minute towards the operators. Charles Levi, plaintiff, was employed on December 2, 1909, by appellant to grind and polish boxes at sand-wheel No. 4; and while grinding down a small board about twelve inches long and about six inches wide, with which to patch his tool box, the board tipped over against the face of the wheel and between the space between the wheel and the table and ground off the fingers of his left hand, except the first finger. In attempting to pull out his left hand, the knuckles of his right hand were also ground severely.
    The declaration charges in the first count that the defendant negligently permitted said sand-wheel to be and remain in a dangerous and defective condition by allowing the table to be set back at too great a distance from the face of the sand-wheel; and in the second count, that defendant negligently failed to warn plaintiff of the defects and dangers- of the machine, which were known to the defendant but unknown to plaintiff. In a trial by a jury a verdict and judgment were rendered against appellant and in favor of appellee for $2,500.
    Wise, Keefe & Wheeler, for appellant.
    Ferns & Sumner, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

The first contention of appellant in this appeal, that the plaintiff was injured through one of the risks of the employment which he assumed, must be sustained; and, as it is a decisive point in the case, the other points raised will not be discussed. The evidence in this record discloses clearly that the sand machine upon which the plaintiff was injured was a very simple device and easily understood by any person of ordinary intelligence after a few minutes’ inspection of the same. The alleged defects, if they existed, were open and obvious; and the dangers thereof to the operator were equally plain and obvious, and the evidence shows that plaintiff thoroughly understood and appreciated them. Walter Williams, for appellee, testified: “The sand-wheel isn’t a complicated machine; it has a table and platform, and in front of this the sand-wheel, the sand-wheel and bed of the table forming right angles. The sand-wheel revolves. The distance could be seen between the edge of the platform And the sand-wheel. A person wouldn’t have to be an experienced man to see it.” John Havens, for appellee, said: “The operating part of the machine consisted simply of a revolving shaft and the table. Everything was in plain sight. The sand-wheel in plain sight, table in plain sight and the space between the sand-paper on the wheel and the table in plain sight, and anyone who worked at it could see it. They could acquire knowledge of it in a moment by simply looking at it.” Edward Sanford, another witness for appellee, testified that everything about the machine is in open view, and that it was a simple machine, ‘ ‘ as simple as you could get a machine. ’ ’ He also said that the space between the table and the wheel is plainly to be seen and that the workman’s eyes while at work are directly toward the space. Frank Clark, for appellee, testified that any danger that was connected with the wheel could be easily seen, and that the wheel, the table and the space were in open view, and all were apparent to any ordinary man and could be seen in a moment. The appellee testified as follows: “We finished up all the boxes we had; I went to work to clean up around there; there was a place in my table where I kept my tools that was in bad condition; I thought I would fix that. I took a board about twelve inches long and about six inches wide and went to put it up against the wheel and the board tipped over and caught these two fingers- between the table and the sand-wheel. I put in my other hand to get the left out, that is how I caught the other hand. * * * It was the distance between the table and the wheel that caused the board to tip and catch my hand. I did not discover that trouble until I was hurt.” He also says on cross-examination that he had worked on this sand-wheel altogether about ten or eleven days and had worked on sand-wheel No. 1, similar in construction, for a month before that and had worked at other kinds of work near these wheels for a considerable time. He gives a minute and comprehensive description of these wheels in his testimony, showing clearly that he had a complete knowledge of them and how they were operated. He then says he had seen the wheel at rest and knew the character of the sand-paper on the wheel, had seen it grind down the edges of the boxes and knew that if he got his hand against the wheel it would grind his hand, and that the natural tendency of that wheel would be to pull the article down when grinding it. He says he was familiar with the machine and that its conditions had not changed at any time that he worked on it, and that in operating it his face would be within sixteen inches of the wheel; and that he could see and have a full view of all the conditions there. There is no question in this record about the simplicity of this sand-wheel and about the open and obvious character of the dangers and defects of the same, except the bare statement of the plaintiff that he did not observe the width and danger of that space until he was injured. As to the space between the sand-wheel and the table, the witnesses are in hopeless conflict, their evidence as to the space varying all the way from seven-sixteenths of an inch to two inches in width. As the defect and the danger complained of by appellee were open and obvious he is presumed to have full knowledge of them. As to such defects and dangers, the law will not permit an employe to recover because he did not actually see them and can say that he did not comprehend them until he was injured. He is chargeable with all the knowledge that an ordinarily intelligent person would obtain by the use of ordinary care. “If the injury was the result of obvious defects in the apparatus with which the servant was working, or from causes known to him, or which he could have known with the exercise of due care he can not recover. * * * If the danger is such that a person of ordinary intelligence would know what would naturally follow from the defective condition, and he has knowledge of the defective condition, knowledge of such condition carries knowledge of the danger and the risk is assumed.” E., J. & E. Ry. Co. v. Myers, 226 Ill. 358, 364 and 365. See also McCormick H. Mch. Co. v. Zakzewski, 220 Ill. 522, 530; L. E. & W. R. R. Co. v. Wilson, 189 Ill. 89; C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492.

In order for a servant to recover of the master for a failure to furnish a reasonably safe place in which to work, or a reasonably safe appliance with which to work, he must allege and prove want of knowledge on his part of the dangers of the alleged defect. This rule does not rest upon the ground of contributory negligence upon the part of the servant, but upon the doctrine of assumed risk. L. E. & W. R. R. Co. v. Wilson, supra; C. & E. I. R. R. Co. v. Heerey, supra; and Swift & Co. v. Gaylord, 229 Ill. 330.

No duty rested upon the appellant company to warn Levi of dangers which were patent to persons of ordinary intelligence. C. & A. R. R. Co. v. Bell, 209 Ill. 25; Am. B. S. & S. F. Co. v. Toluszis, 125 Ill. App. 622.

Under the rules of law applicable to this case there is no theory upon which a recovery by appellee can be based. He is chargeable with full knowledge of the defects of the appliance in question and of its dangers, and therefore assumed the risk by continuing to work thereafter with the appliance without complaint. The judgment of the lower court is therefore reversed without remanding.

Reversed.

Finding of facts to be incorporated in the judgment:

We find as ultimate facts that appellee had notice of the alleged defects of the sand-wheel machine charged in his declaration and that he appreciated the dangers thereof at and before the time of his alleged injury and that he assumed the risk thereof.


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    Nora Powers, Appellee, v. City of East St. Louis, Appellant.
    1. Negligence—when question of construction of sidewalk not one of law. It is not the law of this state that the jury is entitled to pass on the case only where the court can say as a matter of law that the plan of construction with respect to a sidewalk was negligent; such question in this state is one of fact for the jury unless the evidence shows as a matter of law that there was no negligence in the plan of construction employed.
    2. Contributory negligence—when pedestrian injured upon sidewalk guilty of. It appearing that the sidewalk in question was not inherently dangerous, that it had no concealed defect or imperfection in its construction or make-up, that the condition complained of was the existence of an incline and a difference in levels, held, that the plaintiff was guilty of contributory negligence, she having testified that though her eyesight was not so good as when younger yet that she could see all right, that it was a fine sun-shiny day when she was injured, that if she had looked down at the rise in the sidewalk she would have seen it, that she was looking ahead, that she didn’t look only when she fell, that there was nothing to prevent her from seeing if she had looked, and that if she had looked and known it was there she would not have fallen.
    3. Sidewalks—care required of municipalities. When a city or village has exercised reasonable care and prudence to construct its sidewalks in a reasonably safe condition for travelers using reasonable care for their safety, it has done all the law required of it in that regard. It is not required to foresee and provide against every possible danger or accident that may occur.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed April 15, 1911.
    Statement by the Court. The City of East St. Louis, appellant, caused the owners of the abutting property on North Fifth street between St. Louis and Illinois avenues to remove an old board walk and replace it with a granitoid sidewalk of the width of six feet. The walk was built on the west side of said street and extended north and south. Near the middle of this block a colored man by the name of Peacock was the first to build the walk abutting his property of the width of twenty-five feet. He built his walk practically level; but when the adjoining owners built their walks there and adjoining his walk, they constructed them three inches higher at the inside and an inch or two inches higher at the curb or outside, of the walk. At the junction of the lower walk with the higher walks there were bevels, the inclines from the lower to the higher walks being at an angle of forty-five degrees or more. At the center of the walk at the north bevel, where plaintiff received her fall, the difference in level was about two or two- and one-half inches. The walks, including the bevels, were otherwise perfectly smooth and even and very substantially constructed. This street was one of the public streets of said city, of which it had charge and control. Upon the afternoon of a clear, bright day, about 2 o’clock of February 19, 1909, appellee, while walking north on this walk, fell and broke her arm. She sued the city to recover for her injuries and charged in her declaration that the appellant had constructed and maintained said walk as aforesaid in a dangerous and unsafe condition. The trial resulted in a verdict and judgment in her favor and against appellant for $600.
    W. P. Launtz and C. E. Pope, for appellant.
    D. J. Sullivan, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

Appellant insists on this appeal as its principal ground for a reversal of the judgment that the plaintiff failed to prove a cause of recovery against the city, and that therefore the court erred in refusing, at the close of all the evidence, to direct a verdict in its favor. The only substantial difference in the evidence for the plaintiff and the defendant on the trial is that one witness for the plaintiff testified that the inner side of the upper walk where plaintiff fell was about three inches higher than the lower walk, and that the curb side was about two inches higher, while one witness for appellant states that he made actual measurements and that these different heights were respectively three inches and one inch and that the bevel was a forty-five degree incline. Counsel differ in their contentions as to what the angle of the incline really is, but so far as we are able to see these contentions are not material in the settling of this case. It is contended by the appellant that when the declaration alleges that the injury resulted from the negligent plan of construction adopted with respect to a sidewalk, the jury is entitled to pass on the case only where the court can say as a matter of law that such plan of construction was negligent, citing City of Chicago v. Langlass, 66 Ill. 361; Same v. Bixby, 84 Ill. 82; and Same ads. Healy, 131 Ill. App. 183. While the last case above cited seems to hold the law to be as stated, yet, in view of what the Supreme Court has said in City of Chicago v. Seben, 165 Ill. 371, we do not think that the Michigan doctrine is applicable in this state, and we are unaware of any decision of the Supreme Court that upholds the doctrine as laid down in the Healy case. At any rate, such doctrine cannot be applicable to the facts in this case. The evidence rather tends to show that the difference in levels in this walk was occasioned by the failure to follow a plan or grade for its walk that the city may have established, when the lower walk in question was built. There was no evidence of any plan established by the city to have its walk in this block built on different levels. The real questions in this case are, was the walk as it was huilt and maintained unsafe and dangerous for pedestrains using reasonable care for their own safety, and was the plaintiff in the exercise of reasonable care for her own safety at and just before the time she was injured? There is no evidence' to support the proposition that the walk was thus dangerous and unsafe except the bare fact of the difference in the height of the two portions of this walk and the incline spoken of, and the further fact that the plaintiff and one other person had been injured there. All the surfaces were smooth and the difference in the heights could have been easily seen for fifty feet or more by any person with fairly good eyes who should be walking toward the same on a clear, bright day if he had but looked once at the walk ahead of him. There was nothing inherently dangerous to a traveler in this walk. There was no concealed defect or imperfection in its construction or make-up. For one to pass over it and say that they did not see the incline and difference in levels, is to admit that they did not look at the walk at all, unless their sight be very, very poor. The plaintiff testifies that her sight is not so good as when younger, but that she can see all right; that it was a fine, sunshiny day when she was injured; that if she had looked down at this rise in the walk that she would have seen it; that she was looking ahead; that she didn’t look only when she fell; that there was nothing to prevent her from seeing if she had looked, and that if she had looked and known it was there she would not have fallen. How then can it be said that she was in the exercise of ordinary care for her own safety, when added to this evidence is the further fact that she had already just a moment before her injury stepped down from the same higher level to the lower level of the walk twenty-five feet south from the place of her injury? We cannot hold that a walk of two smooth granitoid surfaces built .upon two different levels, varying in height of from two to three inches and connected with smooth bevel surfaces, is proven to be unsafe and dangerous to travelers thereon using reasonable care for their own safety simply because some one has been injured by falling on it. After such an accident, as said in the Bixby case cited below, it may be natural for persons then to conclude it was not safe. But it is the mere fact of the injury that suggests the idea of want of proper construction, and the disinclination of the human mind to attribute the fall to the negligence of the traveler. No reasonable mind, it seems to us, could foresee that an injury would happen to a traveler thereon while exercising reasonable care. To hold that this sidewalk as constructed was not reasonably safe within the meaning of the law would be virtually to hold that all walks should be smooth and level. This would require of cities perfection in the construction of their walks and would make them virtually insurers against all damages; but the law of this state does not require such exactions, and our courts have repeatedly refused to hold cities and villages liable in such cases as this one.

When a city or village has exercised reasonable care and prudence to construct its sidewalks in a reasonably safe condition for travelers using reasonable care for their safety, it has done all the law required of it in that regard. It is not required to foresee and provide against every possible danger or accident that may occur. City of Chicago v. Bixby, 84 Ill. 82; City of Chicago v. Norton, 116 Ill. App. 570; Beltz v. City of Yonkers, 42 N. E. Rep. 401.

The court erred in refusing to direct a verdict of not guilty in this case for the reasons above given, and the judgment of the lower court is therefore reversed without remanding.

Reversed.

Finding of facts to be incorporated in the judgment :

We find as ultimate facts that the defendant was not guilty of the negligence charged in the declaration and that the plaintiff was not in the exercise of reasonable care for her safety at and just prior to her injury.