text:
    Frederick Kammann v. The People of the State of Illinois.

      Intoxicating Liquors—Indictment for Selling to Person while Intoxicated—Evidence—Witness—Whether Biased or Interested—Sufficiency of Record—Instructions.

      In a prosecution for selling intoxicating liquors to a certain person while intoxicated, it is held: That the time required to recover from, the effects of intoxicating liquors was a question of fact for the jury; that the evidence that the article sold was whiskey, is sufficient; that there is nothing in the conduct of a certain witness for the prosecution to show that he was biased or interested; that the objection that the record does not show that the indictment, which was certified to the County Court for trial, was returned by a grand jury duly selected and sworn and having authority to find it, is not well taken, there being no application for a complete record; and that there was no error in the instructions.
    [Opinion filed January 19, 1888.]
    Appeal from the County Court of Kankakee County; the Hon. Thomas S. Sawybb, J ndge, presiding.
    Messrs. Babnum, Bubens & Ames, for appellant.
    Mr. H. L. Bichaedsoh, State’s Attorney, for appellee.
   Welch, P. J.

This was a prosecution under an indictment found by the grand jury at the September term of the Kankakee County Circuit Court against. Frederick Kammann, appellant, for selling intoxicating liquor to one Taylor Hatfield, while intoxicated, and also for selling intoxicating liquor to Taylor Hatfield, a person in the habit of getting intoxicated. This indictment was by order of the Circuit Court, certified to the County Court of Kankakee County for process and trial. Plea of not guilty entered by Kammann; trial by jury; verdict finding him guilty on first count, not guilty as to balance. The first count charges him with selling intoxicating liquor to said Hatfield, when he was intoxicated. Motion for new trial; motion overruled: motion in arrest of judgment; motion overruled; judgment on verdict; appeal prayed and allowed.

Various errors are assigned. 1st. There is no evidence to sustain a conviction under the first count. 2d. The record does not show that the indictment upon which the defendant was tried was properly returned by a grand jury, duly selected and sworn and having authority to find such indictment. 3d„ The court erred in not granting a new trial

We shall consider the errors: 1st. That there is no evidence to sustain a conviction under the first count. Volney Dickey testifies: “He knew Kammann; he kept a hotel and saloon; have been in his saloon during the eighteen months just prior to September 27, 1886; I don’t know how many times, hut quite frequently. I know Taylor Hatfield; have seen him in Kammann’s saloon during that eighteen months. I was in there one evening, saw Hatfield come in, and saw him out on the street prior to that, and he was quite intoxicated—that is, I would call him staggering drunk; he could not walk straight nor talk straight. After that I was in Kammann’s and Hatfield caine in there. Kammann was at the bar himself, and he stepped up to the bar and said, ‘Give me some whiskey;’ and Kammann gave him a bottle, and he drank, and he pulled out a little flask and said, ‘Fill that;’ and Kammann filled that, and he put some money on the counter, and he gave him some change, and he went out.” It is claimed by counsel for Kammann that although the witness states that one evening he saw Hatfield on the street staggering drunk, that lie could not walk straight or talk straight, and after that same evening he was in Kammann’s saloon, and Hatfield came in there and asked Kammann for some whiskey, and Kammann gave him a bottle and Hatfield drank, and that Kammann filled a flask for him, and he put some money on the counter and Kammann gave him some change and lie went out; that this did not show that Hatfield was intoxicated at the time Kammann sold him the whiskey. Hatfield’s intoxication is shown on the same evening that the liquor was sold to him. Had he recovered from the effects of this drunkenness? We are not aware that either the court or jury can know, as a matter of law, how long it tabes a person to recover from the intoxicating effects of spirituous liquors. This is a fact to be proven, as any other in the case. The jury had the right in determining this question to take into consideration their knowledge, experience and observation in regard to the length of time required for one to recover from his intoxication, which we assume the jury rightfully did in this case.

It is further claimed by counsel for Kammann, that there is no evidence as to what this bottle contained that Kammann handed Hatfield and from which he drank. Hatfield asked for whiskey and the bottle was handed to him by Kammann, and he drank and pulled out a little flask and said “fill that,” and Kammann filled it. We hold that this evidence is sufficient that it was whiskey that Kammann sold him.

It is farther claimed by counsel for Kammann that Dickey was a biased and interested witness. This claim is based on the fact that he wrote to the Woman’s Christian Temperance Union of Grant Park, and told them of the approaching session of the County Court, and that if they had any interest in this case to attend to it; and that he asked two or three persons what they knew about it, and had telegraphed Cagwin and his answer to the question, “your object was to make out a case for the people?” “If the evidence—yes, the same as any other person would; just that much interest as a citizen. I have lived thirty years in this county and I propose to obey the law.” There is nothing in the conduct of Dickey to show that he was biased or interested. He had the same interest that any good citizen should have that the laws be properly enforced.

The second error assigned: “The record does not show that the indictment upon which the defendant was tried, was properly returned by a grand 'jury duly selected and sworn, and having authority to-find such indictment.” Our statute is as follows: “When the grand jury of the Circuit Court shall indict for offenses cognizable in the County Court, such indictments may, in the discretion of said Circuit Court, be certified under the seal thereof to the County Court for process and trial, which process shall be the same as like process in the Circuit Court.

“In certifying indictments from the Circuit Court to the County Court, the clerk of the Circuit Court may use the following form, substantially:

“State oe Illinois, ) County oe---[ “I,-, Clerk of the Circuit Court, In and for the county of-, aforesaid, do certify that the within bill of indictment was, on the-day of--duly presented in open court by the grand jury of said county, and being duly examined by the said Circuit Court, it was ordered by the court that the same be certified by the clerk of the Circuit Court to the County Court for process and trial, which is done accordingly.

Which certificate, when indorsed on the hack of. any indictment shall he sufficient to warrant a trial and conviction of any party charged in any indictment so certified, and shall be deemed a sufficient record to authorize the County Court to try the party so indicted: Provided, either party may ask for and obtain a rule on the clerk of the Circuit Court for a complete record, duly and properly certified, of any case pending in the County Court, having been certified as aforesaid; and it shall be the duty of the clerk of the Circuit Court to obey any rule of the County Court for the purpose aforesaid, and when a complete record shall he so certified to the County Court, said court shall be governed thereby in all repeats in all its proceedings.”

The certificate of the circuit clerk is in conformity with the statute. The record fails to show an application made by Kammann for a rule on the circuit clerk for a completo record, hut he went to trial upon the indictment so certified by the circuit clerk. He can not now be allowed to complain. Tills error is not well taken.

It is further insisted by counsel for Kammann that the 2d instruction given for the people was erroneous and misleading. The 2d instruction is as follows:

“You are instructed that it is not necessary for the people to prove any specific days when sales were made. All that is necessary is to prove sales made within eighteen months prior to finding the indictment.”

Under this instruction it is claimed a jury would he very apt to bring in a verdict of guilty upon mere proof of a sale within eighteen months, without regard to the condition of Hatfield at the time of the purchase. We do not consider this point well taken.

The object of this instruction was simply to inform the jury that the exact date of the sales, as charged in the indictment, need not be proved; that it was sufficient, as far as that point was concerned, for tiie prosecution to show the selling of the intoxicating liquors took place within eighteen months. The whole instruction taken together means simply this and nothing more, and the jury must have so understood it. They could, not have supposed that the instruction authorized them to find appellant guilty merely from the fact of the sale of whiskey to him without regard to his condition of intoxication at the time. Other instructions informed the jury fully upon this point. There was no error in giving it. The motion for a new trial was properly overruled.

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Welch, P. J.

license: Public Domain

text:
    Samuel Leigh, for use, etc., v. Sarah E. Coleman and William Coleman.

      Negotiable Instruments—Note—Condition.
    A promissory note payable in one year, interest to be paid annually to the payee and his wife, and the note to become null and void at their death, will sustain an action at the end of one year.
    [Opinion filed January 19, 1888.]
    Appeal from the Circuit Court of Knox County; the Hon. Arthur A. Smith, Judge, presiding.
    Mr. J. A. McKenzie, for appellant.
    Contracts are always construed most strongly against the maker. Walker v. Kimball, 22 Ill. 537; McCarty v. Howell, 24 Ill. 341; Massie v. Belford, 68 Ill. 290; Harlow v. Boswell, 15 Ill. 56.
    Contracts will be so construed as to give possible effect to all their positive provisions.

      The note sued on is a simple promise to pay so much money in one year. But if payment is not insisted upon at the end of the year or during the lifetime of the Leighs, then during such lifetime 8 per cent, interest is to be annually paid, and, at the Leighs’ death, appellees ■ inherit the note. But the payee has the right to cut off the chance of the Colemans, being the recipients of his posthumous bounty, by insisting upon payment of the note when due by its terms.
    Mr. M. Shalleiíbergeb, for appellees.
    The Supreme Court held, in the case of Bradley v. Marshall, 54 Ill. 174, that where a common or promissory note was given for the payment of money, and at the same time an agreement was made on a separate piece of paper, which modified the terms of-the note, and made conditions as to its payment, the two papers should be construed together as one agreement.
    The case of Light v. Scott, 88 Ill. 240, is directly in point. In that case the note read as follows: “Three 37ears from date we, or either of us, promise to pay Bebecca Scott the sum of §500, with ten per cent, interest to be paid semi-annually. It is understood that the principal of this note is not to be paid unless it shall be necessary for the support of said Bebecca Scott, and that the holder hereof may collect the said interest seini-annually, by suit or otherwise, and if by suit, that reasonable attorney’s fees may he collected in addition thereto.”
    This note, like the one before the court, contained an absolute promise to pay a specified sum of money, at a specified time. Likewise, the note was given for the purpose of raising, by the payment of interest, a support for the payee. The principal was not to he paid unless the interest should prove insufficient for her support. It would have to stand, however, during her lifetime as a source of interest, unless necessary for her support. The court made the promise of absolute payment subordinate to the following conditions of semi-annual payment of interest and the non-payment of the principal except upon the happening of a certain contingency, and held the principal of the note was not collectible under the proofs.
    In the case now on hand interest is provided for during the lives of the two Leighs, whether that period falls short of, or reaches beyond the time when the note falls due; at their deaths the whole note becomes void. It is the same in effect as if it had said, in express terms, that the principal should never he paid, but should be kept standing as a source of annual interest during the lives of the two Leighs.
   Welch, P. J.

This was an action of assumpsit by the appellant against appellees. The declaration contains a special count and the common counts. The special count declared on a promissory note in the words and figures as follows: “8484.07. Victoria, Knux Co., Sept. 21, 1885.”

“ One year from date, for value received, we promise to pay Samuel Leigh four hundred and eighty-four 7-luO dollars, with interest at eight percent. Interest due and payable annually during the lifetime of Samuel Leigh and his wife, Rachel Leigh, and at the death of Samuel Leigh and his wife, Rachel Leigh, this note shall be null and void. This note is not transferable.”

“ Sarah E. Coleman,”
“Wm. Coleman.”

The defendants filed a demurrer to the special count and for special cause for demurrer, defendants say: 1st. That by the terms of said note, and by the tenor and effect thereof, no money was due thereon at the time of the commencement of this suit. 2d. By the terms and conditions and the tenor and effect of said note in said first count described, the principal of said note was not to be paid, but only the annual interest during the lifetime of Samuel and Rachel Leigh. Demurrer sustained by court. Plaintiff dismisses the common counts and elects to stand by the declaration. Court gives judgment against plaintiff for costs, from which judgment this appeal is prosecuted.

There is hut a single question involved in this casé, and that is the construction to be "given to the instrument which is the foundation of the action. Appellees insist that, by the terms of the instrument, the principal was never to be paid, but only the interest during the lifetime of Samuel and Bachel Leigh. Appellant insists that, by the terms of the instrument, there was an absolute promise to pay one year after date to Samuel Leigh, §187.07, with interest at eight per cent, from date, Appellees insist that the provision contained in said instrument, “ interest due a'id payable annually during the lifetime of Samuel Leigh and his wife, Bachel Leigh, and at the death of Samuel Leigh and his wife, Bachel Leigh, this note shall be null and void,” qualities and limits the absolute promise to pay; to the same extent as if it had said in express terms that the principal should never be paid, but should be kept standing as a source of annual interest during the lives of the two Leighs. In support of this claim we are referred to the case of Light v. Scott, 88 Ill. 239. In that case the note read as follows: Three years from date we, or either of us, promise to pay Bebecca Scott the sum of §500, with ten per cent, interest to be paid semi-annually. It is understood that the principal of this note is not to be paid unless it shall be necessary for the support of said Bebecca Scott, and that the holder hereof may collect the said interest semi-annually, by suit or otherwise, and if by suit, that reasonable attorney’s fees may be collected in addition thereto.”

Justice Sheldon in construing this note says: “By the face of the note the interest is payable absolutely, and the principal if it shall be necessary for the support of the payee.” The principal was not to be paid unless the interest should prove insufficient for her support. There is no provision in the note in suit in this case that the principal is not to be paid unless as is claimed. “Interest to be paid annually during the lifetime of Samuel Leigh and his wife and at their death to become null and void,” is equivalent to saying the note is not to be paid. We do not think that this provision is susceptible of the construction claimed by appellees. On the contrary, we hold that the principal was due and payable one year after the date of said note, with eight per cent, interest, and that its time of payment was not extended by this provision.

We hold that the obligors could have discharged themselves from all legal liability on this note by paying off the same when due, principal and interest to that date, or at any time since, by paying principal and interest to time of payment and the payee would have had no option; he would have been compelled to receive the money and surrender up the note. The payee had the same right to compel the payment of the note after maturity. Their rights under the contract must be mutual. The special count, we hold, states a good cause of action. The court erred in sustaining a demurrer to said count. For this error the judgment is reversed and cause remanded.

Reversed and remanded.


text:
    Robert L. Nelson v. Charles S. Smith and Erastus Smith.

      Replevin—Tender—Sufficiency of—Instructions—Error without Prejudice.

    1. In an action of replevin to recover certain hogs that had been taken damage feasant, it is held: That upon tender and demand the plaintiffs became entitled to possession of the hogs; and that the tender was kept good by depositing the amount due for damages with the Justice.
    2. It is not error to refuse an instruction which presents a question contained in those given.
    3. An instruction requiring proof of a fact to the “ satisfaction’’ ofths jury, where there is no conflict of evidence as to such fact, is not sufiicient ground for reversal.
    [Opinion filed January 19, 1888.]
    Appeal from the Circuit Court of Knox County; the lion. Aethue A. Smith, Judge, presiding.
    Mr. J. A. McKenzie, for appellant.

      Messrs. T. L. MoGibb and Geobg-e W. Thomson, for appellees.
   Welch, P. J.

This was an action of replevin brought by appellees against "the appellant before a Justice of the Peace to recover eleven hogs alleged to have been unlawfully detained by the appellant. The cause was tried before the Justice of the Peace, and an appeal taken to the Circuit Court where it was again tried, verdict and judgment for the appellees. From which judgment this appeal is taken. The evidense shows that appellees discovered that eleven head of their hogs were missing, and that they were informed by McWilliams that their neighbor, the appellant, had them shut up; that the appellees went to see appellant in relation to their hogs; that the appellant claimed to have taken the hogs up damage feasant in his corn field; that they offered to pay to the appellant, for twenty-five bushels of corn, at 35 cents per bushel for his damages, and that appellant would not take it, saying: they must get their hogs by law. They came away and left the hogs. That appellee, Charles Smith, saw the appellant again; he wanted fourteen dollars for his damages ; that he offered him §12.25; he refused it; that he then demanded the hogs of the appellant; that appellant refused to deliver them; that he immediately went to the office of A. H. Potter, a Justice of the Peace, and placing the §12.25 tendered in his hands, sued out the writ of replevin in this case; lie left with Justice §2.50 to pay costs.

The contention in this case, arising on the facts, is as to whether the tender was kept good. It is insisted by counsel for appellant, that the tender was not kept good. Libott, the Constable, states: “That"appellee (Charles Smith) came and wanted him to serve writ. I asked if we could not settle it. I talked with Nelson (appellant) about settlement, then went to Justice’s office, and learned some money was tendered. I told Nelson; he said he would take the tender. I did not know what the tender was. I told him I would go get it. Went back to office. They gave me two five-dollar gold pieces. I offered them to Nelson. He said that was not the tender, and. refused it. I went hack to the Justice, and McGirr gave me the other §2.25, and I went hack to give it to Helson, and he was gone. I don’t know who gave me the money. It was lying on the table. It was suggested to retain the §2.25 to pay costs.” Potter stated that there was a tender put up in case of appellees against appellant, before the papers were issued, of §12.25 and §2.50 put up for costs, by the appellee (Charles Smith), in all there was §14.75 put up; it was in court at first trial, and under his control all the time, until supersedeas was served, when he sent it with the transcript to the clerk. The Circuit Clerk states that he received §14.75 with the transcript. Appellant states that appellee (Charles Smith) tendered him §12.25; that he offered to take §14; that he, at that time, refused the §12.25; that he had a conversation with Libott, Wells and Housli about settling; that he told them he would take what Smith had tendered. Libott went and got two five-dollar gold pieces, and offered them to him, which he refused. Ho other tender was made to him.

When appellee made the tender of §12.25 to the appellant, and demanded the propertjr which was refused by the appellant, appellees, at that moment, became entitled to the possession of the hogs. Appellees had the right to immediately sue for their property, and by depositing with the court their tender, and permitting it to remain for the benefit of the appellant, all the costs of the suit would be on the appellant. There is no question as to the sufficiency of the tender. The evidence shows the deposit of the tender of §12.25 with the court, also §2.50 for costs, prior to the institution of the suit, which money remained in the hands of the Justice until the appeal was taken, and was sent to the Clerk of the Circuit Court. The evidence fails to show any withdrawal of this tender by the appellees, unless it is shown by the evidence of Libott. We think his evidence fails to show any withdrawal of the tender. We are of the opinion that the tender was kept good.

It is further insisted by the counsel for appellant that the court erred in refusing the 5th instruction asked by the appellant. This instruction was based upon the idea that there was a tender of §12.25 which had been refused, but that if afterward, and before any suit had been commenced, the appellee offered to take the §12.25, and the appellees thereupon tendered only $10, then the appellees could not thereafter bring this suit until they had tendered the amount they admit to be due, and had made demand for possession. The instructions given for appellant, marked 4 and 4¡-, fully and clearly state the proposition contained in the 5th refused instruction. In such cases it has been uniformly held by the Supreme Court that it is not error to, refuse it.

It is further insisted by counsel for appellant, that the court erred in giving the 4th instruction for appellees. This instruction told the jury that if they believed from the evidence that a tender of $12.25 was made by appellees, and that said tender was made before the writ of replevin was issued, then, and in that case, the jury are instructed that unless the appellant introduced evidence to show to their satisfaction that said $12.25 was not sufficient to pay the damages, etc. The objection made is that it requires a higher degree of evidence than is required, “to their satisfaction,” This objection won.d be well taken, if it was upon a question in regard to which there was any conflict. The amount of damages was conceded by the appellant and the appellees to be $12.25. This instruction could not injure the appellant.

The verdict is supported by the evidence. The judgment is afflrmed.

Judgment affirmed.


text:
    The Peoria Grape Sugar Company v. Perry Frazer.

      Contract for Digging Well—Action to Recover Balance—Set-off—Conflict of Evidence—Instructions.
    1. Where the evidence is conflicting, and that produced by either party, considered alone, is sufficient to require a verdict in his favor, a new trial will not be granted on the ground that the verdict is not sustained by the evidence.
    2. In an action to recover a balance claimed to be due on a contract for sinking a well to a certain depth, this court declines to interfere with the verdict, the evidence being sharply conflicting and there being no error in the instructions.
    [Opinion filed January 19, 1888.]
    Appeal from the Circuit Court of Peoria County; the Hon. T. M. Shaw, Judge, presiding.
    Messrs. Putebbaugh & Putebbahgh, for appellant,
    Messrs. Sheen & Lovett, for appellee.
   Welch, P. J.

This was an action of assumpsit brought by the appellee against the appellant. The declaration contained special counts on contract with common counts. Appellant filed picas of non assumpsit, set-off and payment, implication to pleas; trial; verdict for appellee; damages assessed at 8150; motion to set aside verdict and for new trial; motion overruled and judgment on verdict, from which this appeal is taken. Various errors are assigned The contract as originally made is contained in the following proposition made by appellee and its acceptance by the appellant.

“Peobta, III., July 26,1886.
“Peoeia Grape Sugar Co.:

65 Gentlemen:—I propose to digyour present well ata diameter of ten feet; and forty feet deeper, for the sum of 8375, and $o per foot for each additional foot, to a depth of sixty feet, you to keep the well free from water for ten hours, to allow placing of cofferdam. In case bowlders are fouled the company to stand expense of blasting same. The company to pay, as per above, at the completion of the work. If for any cause the company should decide to suspend operations, I agree to allow a rebate of §5 per foot for every foot short of the required forty feet. The company agree to furnish money to the amount of 8100 as the work progresses to pay for labor, I assume all risks.

“Perky Frazer.”

It is admitted that appellee only sunk the well 33£ feet when further work was abandoned by consent of parties. It is also admitted that appellant has paid the appellee §510, which they claim is more than was due, and for which they seek a recovery in their set-off.

The contention in this case arises upon the claim made by the appellee against the appellant for damages, for their failing to free the well from water for ten hours, to allow placing of cofferdam, and for expenses in blasting bowlders. Appellant insists that whatever claim appellee had for damages on account of water was settled in an allowance of §100 on the contract to the appellee by the appellants. And they deny that there was any expense in blasting bowlders, claiming that there were no bowlders in said well.

Appellant also claims judgment for an amount overpaid appellee. Appellee admits the extra §100 on contract, hut denies that it was in settlement for damages on account of water.

We have carefully examined the evidence in this record, and we find that it is very contradictory and conflicting. We do not deem it necessary to refer to the evidence in detail in view of the'uniform rulings of the Supreme Court and by the Appellate Court, that in such a case the verdict will not be disturbed. Stickle v. Otto, 86 Ill. 161; Hayes v. Houston, 86 Ill. 487; Addems v. Suver, 89 Ill. 482; Howitt v. Estelle, 92 Ill. 218. In the case of Lewis v. Lewis, 92 111. 237, it was said: “Where the evidence is conflicting, and that produced by either party considered alone is sufficient to require a verdict in his favor, a new trial will not be granted on the ground that the verdict is not sustained by the evidence.” We can not say that the verdict is manifestly against the weight of the evidence, although it might have been better satisfied had it been the other way.

It is insisted by counsel for appellant that the court erred in refusing the 1st and 2d instructions asked by the appellant-The court gave, at the instance of appellant, instructions that presented to the jury clearly the defense of the appellant. The 3d instruction told the jury that although they may find from the evidence that the appellant did not keep its well free from water for ten hours to allow appellant to place his cofferdam, as provided in said contract, yet if they should further find from the evidence that the appellee agreed with the appellant to accept, and did receive from the appellant 8100 extra in satisfaction thereof, then the appellee wras not entitled to recover any damages from the defendant for such failure to keep its well free from water.

The 4th instruction told the jury that under the contract read in evidence the appellee was not entitled to recover for any expense in blasting any stone except bowlders; and that if the stone claimed to be blasted was not bowlders then the appellee could not recover for the blasting the same.

The 5tli instruction told the jury that under the contract read in evidence the appellee was not entitled to any pay for blasting unless he fouled a bowlder. That having fouled upon any other kind of stone except Jiowlders, will not authorize appellee to recover any expense for blasting. These instructions gave to the jury a clear and accurate statement of the law as to the rights of the appellant under the contract and issues.

The 1st instruction asked by the appellant and refused by the court, set out the contract without giving to it a construction as to the rights of the parties, as to any question arising in this case. There was no error in its refusal.

The 2d instruction, which was refused, told the jury appellee could not recover extra piay for blasting sandstone, limestone or stone other than bowlders.

The jury by the 4th and 5th instructions given, were told that no recovery could be had except for bowlders. There was no error in the refusal of the 2d instruction.

The jury were properly instructed as to the law. The verdict is supported by the evidence. The judgment is affirmed.

Judgment affirmed


author: Per Curiam.

text:
    Christiana Williamson v. Charles J. Borchsenius.

      Set-off—Judgments—Decree Pro Confesso—Reference to Master—Premature Appeal.

    Upon a bill filed by a judgment creditor of an administratrix to have certain judgnn nts in his favor set off against the judgment in favor of the defendant, it is held: That the decree rendered pro confesso, allowing the set-off claimed and an injunction, and referring the cause to a master to state the balance due from the complainant, is not a final decree for purposes of appeal.
    [Opinion filed January 20, 1888.]
    Appeal from the Circuit ’ Court of La Sahe County; the Hon. George W. Stipp, Judge presiding.
    Messrs. Fowler Brothers and J. B. Rice, for appellant.
    Mr. Samuel Bioholsoh, for appellee.
   Per Curiam.

This was a hill in chancery brought hy appellee against the appellant, who was the administratrix of the estate of Anna Canuteson, deceased, seeking to set off two certain judgments in the Appellate Court and one in the Supreme Court, for costs held by him against said Anna, against a certain judgment held by said administratrix of Anna Canuteson, deceased, against him, recovered on a cause of action accruing in her lifetime; and the above named judgments for costs were obtained by appellee against said Anna in the same cause of action in which the appellant’s judgment against him was obtained after her death and in which he had taken appeals from prior judgments to the Appellate and Supreme Courts, and was successful in reversing them and in obtaining judgments for costs on occasion of .such reversals.

It was stated in the bill herein that the amount of the first judgment for costs in the Appellate Court was about §150. The bill did not state the amounts of the other two judgments for costs. It further averred that the estate of appellant’s decedent was insolvent.

The appellant demurred to the bill; the demurrer was overruled and default taken, and thereupon the court rendered decree pro confesso, that appellee be allowed to set off the said judgment for costs against the judgment in favor of appellant against him, and that appellant be enjoined from collecting from appellee anything more than the balance due the estate after deducting the'judgments for costs, and the cause was referred to the master to take and state the account between the parties, stating the balance due after allowing such set-off.

The appeal was prematurely taken. Appellate Courts will not review cases by piecemeal. Freeman on Judgments, Sec. 33. It is the policy of the law to allow only one appeal in the same cause. Notwithstanding the default and decree pro confesso, the appellant will have the right to file exceptions to the report, to be made by the master stating the account. The decree on its face is merely interlocutory and leaves it wholly uncertain how much of her judgment appellant is enjoined from collecting.

In legal principle, Tompkins v. Hyatt, 19 N. Y. 534, seems to be in point. There one who was a mortgagee by subrogation foreclosed the mortgage and there was a decree for foreclosure and sale. The complainant had been in possession, receiving rents and profits, and there was a reference to ascertain the amount of the rents and profits collected by him. Upon appeal it was held the decree was not final, and the app>eal was dismissed because there might be further litigation under the provisions of the decree to ascertain the amount of allowances for use and occupation of the premises. See also Hunter v. Hunter, 100 Ill. 519. The appeal is therefore dismissed.

Appeal dismissed.


author: Per Guriam.

text:
    Patrick Finlen v. Lewis Howard, for use, etc.
    Exemptions—| 13, Chap. 53, Starr <& C. III. Stat.—Money Due— Garnishment.

    Money due a judgment debtor may be reached by garnishee process, although such debtor has less property, inclu.ling the money in question, than he is allowed by the statute of exemptions.
    [Opinion filed January 24, 1888.]
    Appeal from the County Court of La Salle County; the Hon. F. F. Snyder, Judge, presiding.
    Mr. Samuel Kioholsolt, for appellant.
    Messrs. Maloney & Stead, for appellee.
   Per Guriam.

This was a garnishee proceeding brought by the apjeellee for use, etc., against appellant as garnishee of the nominal plaintiff, to recover the sum of $60 due from appellant to Lewis Howard for board. The defense set up by the appellant for and in behalf of Howard was the statute of exemptions, ^ 13, Chap. 52, Starr & C. Ill. Stat. It appears that Howard had less property than the law allowed him, including the sum garnisheed, he being the head of a family residing with the same.

The only question in the case is, can Howard claim the money due him from the appellant? The determination of this question depends upon the proper construction to be placed upon the proviso added to said section of the statute which reads as follows:

“Prodded, that such selection and exemption shall not be made by the debtor or allowed to him or her from any money, salary or wages due him or her from any person or persons or corporation whatever.”

The statute seems to be plain and unambiguous, and the only reason that can be urged against its plain meaning is that the spirit and intention of the act which allows the head of a family residing with the same the sum of §400 in articles of personal property and money on hand exempt, wonld apparently be violated in not allowing him the same amount out of money due him. This may be so, but with the policy of the law we Iiave nothing to-do when the language is express, as it appears to be in this case.

Prior to the passage of the present law, which was in 1877, the Supreme Court held in Fanning v. First National Bank, 76 Ill. 53, that money on deposit in a bank could be claimed on the part of the depositor except under the statute as it then was, which did not contain the proviso in question. This act following so closely after that decision wonld seem, from the circumstances, to have been intended by the Legislature to change the law as declared in that opinion. The question here involved has already been passed on by this court in Monniea v. German In. Co., 12 Ill. App. 240, and also by the Appellate Court of the 3d district in Nichols, Shepard & Co. v. Goodheart, 5 Ill. App. 574.

Seeing no sufficient reason to change our opinion, the judgment of the court below is affirmed.

Judgment affirmed.


text:
    Chicago, Burlington & Quincy Railroad Company v. Noah C. Perkins, Administrator.

      Railroads--Action for Damages for Causing D°afli of Plaintiff's Intestate—Conflict of Evidence—Questions for Jury—Death of Administrator —Change of Venue.

    I. In an action against a railroad company to recover damages for causing the death of the plaintiff’s intestate at a street crossing, it is held: That it was for the jury to find whether the defendant’s train was running at a dangerous rate of speed under the circumstances, and whether a proper regard for the safety of individuals and property did not require the defendant to keep a flagman at the crossing in question, the evidence tending to show it to be a dangerous one.
    2. Where the evidence is sharply conflicting anc! there is no error of law, this court will not interfere with the verdict of the jury.
    3. Upon an application for a change of venue on account of the alleged prejudice of the presiding Judge, it is the proper practice to change the venue to another Judge of the same circuit.
    [Opinion filed January 27, 1888.]
    Appeal from the Circuit Court of La Salle County; the Hon. Dobranoe Dibell, Judge, presiding,
    Messrs. Eiciiolson & Gentleman and O. F. Pbioe, for appellant.
    Messrs. Dcncan, O’Conob & Gilbert and Mato & Widmbr, for appellee,
   Per Curiam.

This suit was commenced in the Circuit Court by Bridget Dougherty, administratrix of Daniel Dougherty, deceased, her husband, who was killed September 7,1881, at Columbus Street crossing in the City of Ottawa by a passenger train of the appellant. It was commenced under the provisions of the statute by the then plaintiff, to recover damages for the wrongful killing of the said Dougherty. The cause has been twice tried by a jury (before the present trial) the verdict and judgment resulting in favor of the plaintiff.

After the first trial and judgment the cause was appealed to this court and upon a hearing here the judgment was reversed and the cause remanded, on account of the admission of improper evidence in favor of the plaintiff and on account of giving for plaintiff improper instructions violating a rule of law concerning the doctrine of comparative negligence.

The opinion will be found in 12 Ill. App. 181. After the cause was remanded to the Circuit Court for a re-trial, it was again tried before a jury, the verdict and judgment resulting in the same way. Upon another appeal to this court the judgment on hearing was affirmed. 14 Ill. App. 196. The cause was then appealed from this to the Supreme Court and by that court the judgment was reversed and the cause remanded here with directions to reverse the judgment of the Circuit Court and remand the cause to that court for another trial The opinion of the Supreme Court will be found in 110 Ill. 521. While the cause was pending in the Supreme Court Bridget Dougherty resigned as administratrix and Lothrop Perkins was substituted as administrator de bonis non. After the reversal of the judgment in the Supreme Court and before the mandate of the Supreme Court was carried out by this court, the said last named administrator died, and upon the suggestion of his death being entered in this court and upon motion the present appellee was substituted in his place as the administrator of the said estate; and the cause was tried in the court below in the name of the present appellee as plaintiff.

The negligence relied upon by appellee, and charged against the appellant in the declaration, is that while the deceased, Dougherty, was in the exercise of due care and caution, the apjiellant, while approaching the crossing where the injury was inflicted on the deceased, ran its train at a high and improper rate of speed, failed to ring a bell or sound a whistle, as required by the statute, and neglected to keep a flagman at the crossing to give warning of approaching trains, by means of which said negligent acts, and each of them, the deceased came to his death by being run over by the approaching train. The issues were tried by a jury, and to entitle the appellee to recovery it was incumbent on him to show and prove by a preponderance of the evidence some one of the above negligent acts charged; ' and also that at the time the accident occurred and immediately before the occurrence, while the deceased was approaching the crossing, he was in the exercise of the care and caution that a reasonably prudent person would exercise under the circumstances.

It is strenuously insisted that the appellee failed to establish the affirmative of the above named issues and that the verdict was manifestly against the weight of the evidence. When the case was in this court on its last appeal, we examined the evidence on those points as it then appeared and were satisfied that it was sufficient to sustain the verdict and so held and affirmed the judgment. We said in the opinion in commenting on the weight of the evidence, that “ the evidence in regard to the negligence and contributory negligence was all fairly submitted to the jury and we are unable to say that they were not justified in finding the issues for appellee.”

It is insisted, however, that the evidence on the last trial was materially different and stronger for the appellant than it was on the former. We have carefully examined it again and duly weighed it, hut do not find that in the main and controlling features it is different from what it was on the former trial

It appears that the crossing where the accident occurred was a dangerous one on account of some trees and a dwelling house standing near the railroad track on the south side inter, fering with the view to the east from Columbus Street, whence the train causing the injury approached. The crossing was a public thoroughfare, much used by travelers with teams and by people on foot, those crossing being liable to pass at any moment. Under such circumstances, it was for the jury to say what was a safe rate of speed for the train to run, and also whether a proper regard for the safety of individuals and property did not require the appellant to keep a flagman at the crossing for the purpose of warning passers-by of the approach of trains. The evidence tended to show that the crossing was a dangerous one, and that the train was running at the rate of fifteen or twenty miles per hour. It was for the jury to find whether this was the rate at which the train ran and whether it was a dangerous rate of speed under all the circumstances.

With the finding in the afirmativo on these issues we are not at liberty to interfere, unless it clearly and at first blush appears that it was contrary to the weight of the evidence. This we do not feel justified in doing; hut it is insisted the more dangerous the crossing the more care should be used on the pai't of the deceased in his approach with his wagon and team, which he was driving at the time, as he was familiar with the crossing. This is undoubtedly true, and the jury, no doubt, as it was instructed to do, took that fact into due consideration. But if the jury found that the engine was being driven at too high a rate of speed, it may have considered this to have been the proximate cause of the accident, and that in approaching the train the deceased was not, as a prudent man, bound to take into account that the appellant would run its train in a negligent and improper manner; and the jury may have found that the deceased took all the care necessary to preserve his safety had the train been properly run. The case is not entirely free from doubt, and had the jury found the other way we would not have felt ourselves called on to interfere. Ueither do we feel authorized to interfere with the verdict as it is. Three juries have found the same way on substantially the same evidence, to the first of which we have already given our sanction.

The appellee asked and the court gave no instructions for him. The appellant asked twenty-four and the court gave on its behalf nineteen elaborate instructions, in which the law, as applicable to the evidence, was clearly and minutely laid down, and as favorable for the appellant as it had a right to ask. The modifications made to several of them were not important and did appellant no harm.

The appellant made a motion for a change of venue on account of the alleged prejudice of the presiding Judge, and the Judge changed the venue from himself to another Judge of the same Circuit Court, before whom the case was tried, and refused to change the venue from the county. This the appellant objects to as error.

The statute passed in 1874, Sec. 2, Chap. 146, B. S., provides that “ when a change of venue is granted it may be to some other court of record of competent jurisdiction in the same county or in some other convenient county to which there is no valid objection; provided, that when the action is pending in either the Circuit or Superior Court of Cook County, and the only causes for change of venue apply to one or more, but not all the Judges of sueli court, the case may be tried before one of the Judges of such court, to whom the causes do not apply.”

Tills statute was passed before the present law giving three Judges to the same circuit, and in the then condition of the law it was proper to send the cause out of the circuit, but under the present law there is no longer any reason for it. We regard the statute as being modified by the new statute. There is no longer any reason remaining why the cause should he sent out of the county or circuit.

Ever since the new law went into effect giving three Judges to the same circuit, it lias been the universal custom of the circuit Judges in this State, so far as we know, not to send a civil case out of the county where it was jiending, when an affidavit was filed for change of venue on account of the prejudice of one of the Judges; but the practice has been to call in one of the other Judges in the same circuit to try the case. This practice is fully justified by the former decisions of the Supreme Court in analogous cases. Curran v. Beach, 20 Ill. 259; Myers v. Walker, 31 Ill. 353, 366; Com. In. Co. v. Mehlnan, 48 Ill. 313.

We see no error in the substitution of the appellee as administrator instead of the former administrator who is deceased. We see no cause to claim a variance between the proof and declaration. s

Seeing no cause for error the judgment of the Circuit Court is affirmed.

Judgment affirmed.


author: Baker, J.

text:
    Chicago, Burlington & Quincy Railroad Company v. Fannie Epperson.

      Bailroads—Action for Damages for Personal Injuries—Acts of Fireman without the Scope of Ms Employment.

    1. Where a servant personally, and wholly for a purpose of his own, does an act not connected with the business of his master, and not intended by him to further the objects of his employment, the muster is not liable for an injury thereby occasioned.

      2. In an action against a railroad company to recover damages for a personal injury, caused by the explosion of torpedoes placed on the track as a station by a fireman belonging to a freight train, it is held: That it does not appear from the evidence that the conductor of the train knew, prior to the explosions, that the torpedoes were upon the rails; and that it was not the duty of the conductor nor of the company to keep constant watch of the rails on both sides of the train while standing to ascertain whether dangerous explosives were placed under the cars, either by strangers or employes of the company not acting in furtherance of its business, or within the scope of their employment.
    [Opinion filed February 9, 1888.]
    Appeal from the Circuit Court of Knox County; the lion. Arthur A. Smith, Judge, presiding.
    Messrs. Sweeney & Walker, O. F. Price and Williams, Lawrence & Bancroft, for appellant
    Messrs. A. M. Brown and F. F. Cooke, for appellee.
    Appellee bases her right of action upon the reckless, -wanton and grossly negligent act of the conductor, acting in the line of Ms duty a:id employment, in the managing and running of bis train. If the act of the conductor in running bis train upon and exploding the torpedoes was wanton, reckless or grossly negligent, and in the line of his duty, the law fixes liability. C., B. & Q. R. R. Co. v. Dickson, 88 Ill. 431; T., W. & W. R. R. Co. v. Harmon, 47 Ill. 298; C., B. & Q. R. R. Co. v. Dickson, 63 Ill. 151; St. L., A. & C. R. R. Co. v. Dalby, 19 Ill. 353; I. C. R. R. Co. v. Reed, 37 Ill. 484; N. W. R. R. Co. v. Hack, 66 Ill. 238; C., B. & Q. R. R. Co. v. Parks, 18 Ill. 460; I. C. R. R. Co. v. Reedy, 17 Ill. 580. It is insisted these decisions clearly establish appellant’s liability under the proof. Hot only this, but if the reasoning and principles of law expressed in the Dalby case, 19 Ill. 353, is applied strictly, appellant would be liable for the fireman’s act in placing the torpedoes, although without the line and scope of bis employment.
   Baker, J.

Fannie Epperson, plaintiff below and' appellee here, sued the Chicago, Burlington & Quincy Railroad Com-])any, appellant, in an action on the case for personal injuries and recovered judgment for §5,000 damages.

On the 4th day of July, 1S85, there was a celebration at Alpha, a station on the railroad of appellant between Rock Island and St. Louis, and a procession with a band of music was formed at one of the churches in the village, which proceeded by the public highway a distance of over a quarter of a mile to a grove, where the exercises of the day were held. Appellee was at the church at the time the procession started, and for the purpose of avoiding the dust of the public road took a sidewalk which took her to the platform of appellant’s depot. This platform was no part of any public road, but was adjoining the railway track, and was constructed and possessed by appellant solely for the accommodation of passengers and the transaction of the business of its railroad.

Appellee was walking upon it merely for her own convenience and pleasure, and not for the purpose of transacting any business with appellant, and her presence there had no refer, ence to any matter pertaining to its duty as a common carrier; she was there by sufferance only and as a more licensee and without any enticement, allurement or inducement on the part of appellant or its agents.

She was in company with some three or four friends, and a large number of persons were gathered upon and passing along the platform, and when she reached a point in front of the depot she was struck back of the right ear by a flying fragment of a torpedo shell, causing, as is claimed, a permanent paralysis of the right side of her face.

Shortly before appellee reached the platform, a freight train arrived at the station, and this train was cut in two, leaving the caboose and four freight cars standing at the depot platform, while the engine, with the remainder of the train, went to the north end of the railroad yard to do some switching. The train crew consisted of flve men, the conductor, engineer, fireman and two brakemen. The engineer and two brakemen went with the engine and main portion of the train to the upper end of the yard. , The conductor and the station agent unloaded from the standing cars the freight billed for Aljjha, and loaded thereon the freight billed from Alpha; the conductor being in the car and handing out and taking in freight, and the station agent being on the platform, receiving freight from and handing it to the conductor; and when the unloading and loading Avere finished the agent Avent into the railroad office, and the conductor Avent to the caboose to take his Avay bills in and put them aAvay, and was still in the caboose Avhen the torpedoes exploded as hereafter stated.

At the time of arrival of the train at the depot the fireman, got off the engine, announcing to the engineer his intention of going to get a drink. Subsequently he Avent to the caboose,: procured a number of toipedoes from the draAver in Avliieh1 they Avere kept, and placed them upon the track. There Avas at the time considerable going on in the Avay of celebrating, shooting fire-crackers, etc., and the object the fireman had in An'eAv Avas to help celebrate.

The engineer threw out some of his ears at the upper end of the yard, cut ten cars from the engine and let them run dOAvn to the depot in charge of McCarthy, one of the brakemen, and went with his engine and front brakeman to get some loaded cars on a side track. The ten cars on the main track which Avere in charge of McCarthy ran down against the four freight cars and caboose standing on the track at the platform, moAred them a short distance and caused them to run over and explode the torpedoes.

There were some íavo dozen torpedoes kept in a drawer in/, the caboose car, and they were in charge of the conductor, and could not rightfully be used except under instructions from him; they Avere furnished by the company and were only intended to he used Avhen the train stopped betAveen stations, as danger signals, and Avere not furnished or intended for use at a station; and there Avas no necessity or occasion for using torpedoes in connection Avitli that train on the day-in question.

The case AAras tried upon issues formed on five several counts of the declaration, the 1st, 2d, 3d and 4th additional counts, and the 4th amended count. Four of the ;e counts Avere predicated upon alleged culpable misconduct of the conductor in charge of the freight train. The first and second additional counts charged that the conductor knew that one or more of the torpedoes had been fastened upon the track of the railroad adjoining the platform, by the fireman; the third additional count alleges that the conductor having the torpedoes in his custody and knowing the fireman was about to go to the car and place where he had the torpedoes in - charge with intent to take a number of them and fasten them upon the railway track adjoining the platform, permitted said fireman to go to the car and the place in said car where he had the torpedoes in charge, and take therefrom a number of said torpedoes and fasten the same upon the track of the railway under one or more of the cars of the train, and that said torpedoes were so taken and placed with the conductor’s knowledge; and the fourth additional count alleged that the conductor knew that certain torpedoes, dangerous to life when exploded, were fastened upon the track of the railway adjoining the platform. The fourth amended count charged that the agents of defendant were possessed of torpedoes of the defendant placed by it in their hands, and that said agents knew that one or more of said torpedoes had been fastened on the track adjacent to the platform. This amended count did not disclose who these supposed agents were who knew the torpedoes were upon the track.

The evidence before the jury wholly excluded any theory that either the engineer or the front brakeman had any notice the torpedoes were upon the rails. So, also, there was no testimony even tending to show that McCarthy, the other brakeman, had such notice; he was engaged in switching in a distant part of the yard until he came do'wn the main track on the ten loaded cars for the purpose of coupling them onto the standing cars, and it is absurd to suppose he could possibly have seen through the intervening standing cars the torpedoes, about the size of half dollars, upon the iron rails.

It is admitted that the act of the fireman in placing the torpedoes upon the track was outside of the scope of his employment and duty; and no claim of corporate liability is made because of bis acts and conduct. The claim made both by the pleadings and in the brief and arguments is. that the conduct- or in running and managing the train was the agent of appellant, and that his conduct was reckless, wanton and grossly negligent in permitting the fireman to take the torpedoes and fasten them upon the rails, in not moving them from the track, in not giving notice to those passing of the danger, and in permitting the train to run upon and explode them. It is plain he was not guilty of either negligence or wilful misconduct in any of the matters suggested, unless either he had knowledge of the acts of the fireman, or was advised the torpedoes were upon the track, or a legal and positive duty wras imposed on him to know the torpedoes were there.

The positive testimony of the conductor that he saw nothing of the acts of the fireman, did not see him or any one place the torpedoes, and did not see any of them after they were fastened to the rails, is very strongly corroborated both by his own statements with reference to his whereabouts and proceedings during the time the freight train was at Alpha and by the testimony of the station agent and that of Dr. Clowes, Cole and Smith, witnesses introduced by appellee. We are unable to find in the record any evidence tending to prove that the conductor, before the explosions, had actual knowledge of what the fireman had done or that the torpedoes were under the cars. The torpedoes were evidently placed on the rails while the conductor was inside of a car, engaged in handing out and taking in freight; they were under the first car ahead of the caboose, and the car in which he was at work was the third car from the caboose, and it is wholly improbable he could have seen the operation of fastening them on the track; and there is no ground in the testimony for saying that he either saw or communicated with the fireman from the arrival of the train at the station until after the explosions. The evidence is conclusive that immediately after the explosions the conductor knew they had been occasioned by torpedoes on the rails, and shortly thereafter ascertained torpedoes were missing from the drawer in the caboose. A circumstance which seems to he relied upon as proving the guilty knowledge of the conductor, is the fact he made no inquiries for the purpose of ascertaining who had put the torpedoes on the track. That circumstance is of but slight, if any, probative force, to show antecedent knowledge on his part. After the explosions, he undoubtedly knew that, improper use had been made of torpedoes furnished him for use as danger signals only, and that thereby the mischief and injury in question had been occasioned. He, no doubt, surmised they had been thoughtlessly and surreptitiously placed upon the track by one of the train men, and purposely avoided making any investigations that might elicit information which it would be his official duty to report to the company. It seems to us this is the only fair and reasonable conclusion to reach from liis conduct and the surrounding circumstances, and that the conclusion sought to be deduced therefrom by appellee, that he had previous knowledge touching the placing of the explosives, is unfair, unreasonable and strained. So, also, a desire to. screen the fireman, who he probably supposed or suspected was the person in fault, would fully account for what he said to Aaron Brown, and' the reasonable deduction from the conversation testified to by the latter is simply that the conductor was influenced in what he said by such desire.

This subsequent conduct, and these subsequent and private motives and desires of the conductor, would impose no liability upon appellant and would not make it responsible for antecedent injuries, in regard to which no culpability had attached to the corporation. We are of the opinion, from the evidence, that it is almost if not quite absolutely certain that the conductor had no actual knowledge or notice, prior to the explosions, that the torpedoes were upon the rails, or of the acts or intentions of the fireman in respect to getting or placing such torpedoes.

Was it the duty of the conductor to have known the torpedoes were on the track? We think not. He knew they were for use only between stations, and as danger signals to other trains; that there was no occasion for using them at that time or place; that no one had the right to fasten them upon the rails without instructions to that effect from him, and that he had given instructions of that kind to no one. lie also well knew the freight train had moved over the track in front of the platform only a few moments before the explosions and that it was then clear of all obstructions and perfectly safe. He was not required to anticipate that either a stranger, or an employe of the company, acting without and beyond the scope of his employment, might place either torpedoes or dynamite or other destructive implements under the wheels of the standing cars; nor was he bound to see and take notice of what were apparently but pieces of paper ab'mt the size of half dollars when, excluding those who saw the fireman qtlace them there, but one person in the large crowd that was gathered upon and passing over the platform is shown to have seen them, and he only after his attention had been attracted by the first explosion and the car-wheels were passing over the others. It would be unreasonable to require either the conductor or the company to keep constant watch of the rails on both sides of a standing fi eight train in order to ascertain whether dangerous explosives or other obstructions of the size of those in question were placed under the cars, either from motives of malice or from mere wantonness, by either strangers or by employes of the company not acting in furtherance of the business of the corporation or within the scope of their employment. Were such duty imposed upon the conductor, it would greatly interfere with the performance of his other duties and with prompt and efficient transportation of freights upon the railroad; and were such duty required of the company, it would necessitate the employment of additional servants for that express purpose, and would impose upon it an unnecessary and useless burden.

There is no evidence to support the charge of culpable negligence or of reckless, wilful and wanton misconduct on the part of the conductor of the train. When the fireman from wantonness and a desire to help celebrate the Fourth of July placed the torpedoes under the cars, it was an abandonment by him of the service of the company, and the latter was not liable for the consequences of his acts. Even if a servant is cngaged in the performance of his duty to his master, yet if he personally and wholly for a purpose of his own does an act not connected with the business of such master and not intended by him to further the objects of his employment, the master is not liable for an injury thereby occasioned. Cooley on Torts, p. 535; Johnson v. Barber, 5 Gilm. 425; Fuller v. Voght, 13 Ill. 278; Oxford v. Peter, 28 Ill. 434; T., W. & W. Ry. Co. v. Harmon, 47 Ill. 298; Wharton on BTegligcnce, Sec. 168.

The view we have taken of the case renders it wholly un- > necessary to consider other matters that are involved in the assignments of error and discussed by counsel. Appellee has no cause of action against appellant. The judgment is reversed.

Judgment reversed.