text:
    Crowe Name Plate and Manufacturing Company, Appellant, v. Willard R. Dammerich, Appellee.

      Opinion filed January 4, 1935.
    Rehearing denied February 25, 1935.
    Wheeler, Oehmke & Dunham:, of East St. Louis, for appellant.
    Preston K. Johnson, of Belleville, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

On April 24, 1930, C. F. McLaughlin engaged a taxi at the public square in Belleville, to take him to the Oakland Foundry Company, located at the junction of Florida avenue and A street. The cab was owned and driven by Ed Bien. It proceeded easterly along A street, which, west of its intersection with Florida avenue, is 30 feet wide from curb to curb, while east of the avenue its corresponding width is 24 feet. At the time in question, which was about 11 o’clock in the forenoon of a bright, sunshiny day, there were parked on the south side of A street, and east of Florida avenue, several autos, which came close to the street intersection, while on the north side one or two cars were standing somewhat farther east.

The office of the Oakland Foundry Company is on the north side of A street, where it corners into Florida avenue. Bien testified that as he approached the intersection, he looked easterly and saw the car of appellee, driven by Ralph Thomas, coming westerly along A street, and 200 or 300 feet toward the far end of the block; that he slowed his car down and started to make a “U” turn, intending to discharge his passenger at the office of the foundry company on the northwest corner of the intersection; that to do so, he dipped to the south in Florida avenue, and that while so doing, his view to the east was obscured by the cars parked on the south side of A street and east of Florida avenue; that as soon as he swung northward, he again saw the car of appellee, which was about 75 or 100 feet east of the corner,- and coming rapidly. Bien at the time was traveling about 5 or 10 miles an hour. The car of appellee struck the cab head-on, damaging it considerably. Bien further stated that after the accident Thomas said he was driving about 45 miles an hour, though the latter denies making such statement.

Mr. McLaughlin, the passenger, sustained head injuries as a result of the collision, from which he, two days later, died. Appellant, his employer, and appellee, were at the time operating under the Illinois Workmen’s Compensation Act, Cahill’s St. ch. 48, If 201 et seq. Appellant negotiated a settlement with Susie G-. McLaughlin, widow of the decedent, in the sum of $3,750, and became obligated to pay the medical and hospital services in the sum • of $97.85, after which appellant, by virtue of the provisions of the Workmen’s Compensation Act, sued appellee to recover such amounts. A verdict was returned for appellee, and judgment entered, from which appellant appeals, assigning as the sole ground for reversal that the verdict is contrary to the manifest weight of the evidence, and that the trial court should have awarded a new trial.

Thomas, the driver of appellee’s car, testified that he was employed as a deliveryman for the latter, who conducted a grocery and market; that at the time in question he had completed his deliveries and started to return to the store; that he turned into A street several blocks east of Florida avenue, and proceeded westerly; that he was familiar with the locality, and knew that cars were usually parked about the intersection in question when the foundry was in operation.

He further testified that he was driving about 20 miles an hour; that he saw the cars parked east of the corner, on A street; that he did not see the taxi at any time when it was west of the intersection, and did not know of its presence or proximity until' he was at the crossing and the taxi only 10 feet away, and in front of him; that it was then headed north; that he applied his brakes, but it was too late to avert the collision. He also admitted that from the time he first saw the cab he did not change his course, but drove straight into it. He did not testify that he, at any time, looked to see whether any cars were coming easterly along A street, or try to see whether any autos were traveling along Florida avenue.

Hugo Ehret stated that he saw appellee’s car just previous to the accident, and that it was going 30 miles or more an hour. Wilbur Emge testified that he was driving west on A street, behind the car of appellee ; that he was driving about 15 or 20 miles an hour, and that the car ahead of him made four blocks while he was traveling three.

Appellant contends that the evidence discloses that the conduct of appellee’s driver, in approaching and entering the intersection, was such as to prove him guilty of a want of ordinary care, and that his acts conclusively establish his negligence, as shown by the testimony of both plaintiff and defendant. If the proof was of such degree, then defendant has been proven guilty of negligence as a matter of law.

Whether a given course of conduct amounts in law to negligence depends upon its character and attending circumstances. If the acts or the omissions complained of so contravene the promptings of ordinary caution that reasonable minds without doubt or hesitation would agree that no careful person would be guilty of the same, then such conduct is per se negligence. 45 Corpus Juris, p. 633, sec. 4.

A review of the evidence reveals that A street is a straight thoroughfare, both east and west of Florida avenue; that on the day in question the weather was clear and sunshiny, the hour of the accident being about 11 o’clock in the morning; that appellee’s driver had an unobstructed view of A street for several blocks west of its intersection with Florida avenue; that cars parked on the south side of A street, right up to the corner of the avenue, somewhat obscured his view to the south, and that he did not see the taxicab until he was at the street intersection, and the cab only 10 feet distant and directly in front of him.

“It is the duty of the operator of a motor vehicle approaching a crossing or intersection to keep a lookout ahead of him, and also to look for approaching vehicles.on the intersecting street or highway; and although the latter duty is particularly imperative with respect to the direction from which vehicles having the right of way over him would approach, full performance of the driver’s duty requires that he shall look in both directions. Where the view of the driver along intersecting streets is in any way obstructed, he must be especially vigilant with respect to a lookout on such streets, and the duty of special vigilance also applies with respect to observation of the crossing itself where the driver’s view is obstructed by other vehicles.” 42 Corpus Juris, p. 962, sec. 691. Rupp v. Keebler, 175 Ill. App. 619; Haggerty v. Rain, 177 Wis. 374, 186 N. W. 1017; Geiger v. Sanitary Farm, Dairies, 146 Minn. 235, 178 N. W. 501. And under such circumstances the failure to look is negligence per se. Kok v. Lattin, 261 Mich. 362, 246 N. W. 149; Stone v. Mullen, 257 Mass. 344, 153 N. E. 565; Haggerty v. Rain, supra; Marinkovich v. Tierney, 93 Mont. 72, 17 P. (2d) 93.

Aside from the legal force of the rule as stated in the foregoing authorities, the dictates of common prudence require that a motor vehicle driver, approaching a street intersection, shall be observant to determine the presence of other vehicles at or near to the intersection. All reasonable minds will agree that a driver thus approaching such an intersection, especially where it is known to him to be a busy corner, who fails to look as he approaches to ascertain whether there are other cars in proximity, is guilty of a want of ordinary care.

That appellee’s driver failed to look as he came toward the crossing of A street and Florida avenue is manifest. He testifies he did not see the taxi until he was at or in the intersection, and that it was then straight ahead of him, and only 10 feet away. That he could have seen it in ample time to have stopped his car, and thus avoided the collision, had he been on the lookout for other vehicles, as the law required him, is obvious. He could not, under such circumstances, be heard to say that he did not see, the cab, when, had he looked, he necessarily would have seen it. De Bow v. Cleveland, C., C. & St. L. Ry. Co., 245 Ill. App. 158; Grinestaff v. New York Cent. R. R., 253 Ill. App. 589. The driver of appellee’s car did not testify that he looked in any direction as he approached the crossing, and the proof thoroughly establishes that he did not do so. This failure to so look was negligence as a matter of law. Kok v. Lattin, supra, and Haggerty v. Rain, supra.

That the failure of the driver to thus keep a proper lookout, which would have enabled him to see the taxicab in time to have stopped his car or slacken its speed, and thus avoid the collision, was at least one of the proximate contributing causes of the accident. •

Whether the driver of the taxi was also negligent is not controlling in the case. Mr. McLaughlin was a passenger for hire in the cab, and any negligence of the driver could not be imputed to him. Flynn v. Chicago City Ry. Co., 250 Ill. 460. Moreover, even though the taxi driver was guilty of a want of care, and his negligence, combined with that of appellee’s driver, was the proximate cause of the accident, the appellee would still be liable to respond in damages therefor, and could not urge the concurrent negligence of the taxi driver as a defense. Chicago & Alton R. Co. v. Harrington, 192 Ill. 9; Pullman Palace Car Co. v. Laack, 143 Ill. 242; Thompson on Negligence, sec. 75.

We think, upon this record, it unmistakably appears that the driver of appellee’s car was guilty of negligence which was an efficient cause of the accident and consequent injury. The verdict, finding appellee not guilty of negligence, was manifestly against the weight of the evidence, and the court should have sustained the motion for a new trial.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Stone

license: Public Domain

text:
    James A. Seybert, Appellant, v. Clarence E. Hoiles, Appellee.
    Opinion filed January 4, 1935.
    Rehearing denied February 25, 1935.

      F. M. Guinn, of Vandalia, for appellant.
    Hill, Bullington & Wilson, of Greenville, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Bond county, Illinois, in a suit for accounting filed September, 1931, by the appellant, James A. Seybert, wherein the court found the sum of $8,000 due the respondent, Clarence E. Hoiles, appellee herein, from the complainant, James A. Seybert, appellant herein.

Appellant was the owner of 437 acres of farm land. Prior to September, 1919, appellant had been doing business with another bank, but at that time he transferred his business to the State Bank of Hoiles and Sons, borrowing from it sufficient to pay off the other bank. He had other dealings with the Hoiles bank and with appellee, Clarence E. Hoiles. On October 20, 1920, appellant made a mortgage in the sum of $25,000 to the Hoiles bank on the lands above referred to, in order to secure his indebtedness to the bank.

In February, 1932, appellant made a deed to appellee of the lands secured by the mortgage to the bank. Appellee contends that the deed was made to further secure appellant’s indebtedness to the bank. Appellant contends that the deed was made to facilitate an arrangement by which appellee became appellant’s agent to sell the lands conveyed within two years. The appellee denies that he was ever the agent for appellant or that he agreed to sell the lands within two years, or became bound to attempt to sell the land at all. It is then contended by appellant that the lands depreciated greatly in value and that great loss was occasioned to appellant by appellee’s failure to sell the lands within a proper time. The basis of the alleged agency and contract is the following writing:

“The undersigned Clarence E. Hoiles, holding the fee simple title to Four Hundred thirty-seven (437) acres of farming land in Central, Old Eipley and Shoal Creek Township, Bond County, Illinois, by virtue of a warranty deed, executed by James A. Seybert and Minta Seybert, his wife, hereby on his part agrees to and with the said James A. and Minta Seybert, that upon a subsequent sale of said property, and at the best price to be obtained therefor, and upon payment of the proceeds, in satisfaction of the mortgage indebtedness on said premises together with any indebtedness due and owing to State Bank of Hoiles and Sons, by the said James A. and Minta Seybert, the residue,'if any, will inure to and be paid to the said James A. and Minta Seybert by the undersigned.

“This memoranda to be in full force and effect for a period of Two (2) years, reckoning from the date hereof.

“Dated this 30th day of December, A. D. 1922.

Clarence E. Hoiles.”

Appellant relies also on what he terms an admission at the trial concerning the making of the contract. Taking all of appellee’s answers together we do not think they amount to either an admission of agency, or an admission of a contract whereby appellant was bound to make sales of the land within two years or at all. We think also that the writing is the best evidence of the agreement and shall confine the discussion to the significance of it.

The instrument says that “upon a subsequent sale” of the property the proceeds will be" allotted in a certain manner. It must be borne in mind that this instrument was drawn nearly a year after the execution of the deed to appellee. It should also be recalled that most of the sales made were to parties designated by appellant. The deed, the agreement, and the subsequent conduct of the parties fit just as naturally into the theory that the bank, having a deed as security, was allowing appellant two years in which to make sales from which appellant might derive a portion of the proceeds, as with the theory that appellee undertook to get rid of the land in two years at the best prices obtainable. The master and the court below found that there was no contract on the part of appellee to sell the land. The evidence would not justify us in upsetting their conclusion.

We hold therefore that the court did not err in refusing to require appellee to account for losses in market value , of the land because of negligence in carrying out a contract to sell.

The other errors assigned relate to the allowance of a set-off to the appellee on account of his purchase of an interest in a certain note which appellant owed to the State Bank of Hoiles.

Appellant owed the bank a note in the sum of approximately $17,000. In 1929, appellee gave checks to the State Bank of Hoiles and Sons amounting to $8,000 for an equitable interest in the said $17,000 note. The note was not indorsed to appellee until the trial of this suit. Appellee’s partial interest in the note was indorsed thereon at the time of the trial.

It is first contended that appellee was under no legal obligation to make payment on this note and that he cannot be subrogated to the rights of the bank. While a different question might have arisen if payment of the note had been made, and indorsed thereon, to show extinction of so much of the debt, there can be no question that anyone is entitled to purchase an interest in the note so long as the holder is willing to sell it. The presumption would certainly be that a purchase, rather than a payment, of the note was intended.

Appellant contends that all counterclaims not existing at the time of commencement of the suit are barred from the accounting. In this case all that was done after the suit was the indorsement of the note which appellee held in his possession before the suit. The purchase was prior to the suit. It should also be said that a suit for accounting differs in this particular from suits at law. All matters of indebtedness between the parties up to the time of the final decree should, as a general rule, be taken into account: Rhodes v. Ashurst, 176 Ill. 351, on 355, 356; Rhodes v. Ashurst, 71 Ill. App. 242; Vol. 1 Corpus Juris 644, sec. 132.

Appellant also contends that where no affirmative relief is prayed in the answer in chancery that no decree for a balance due in favor of the respondent can be had. Neither a cross-bill nor a specific prayer in the answer is necessary to a decree in favor of the respondent-in a suit for accounting. The prayer of the bill opens up the whole account, and the complainant impliedly obligates himself to do equity and pay any balance due the respondent. Judson v. First State Trust & Savings Bank, 238 Ill. App. 531, 539, 540; Vol. 1 Ruling Case Law, 225, sec. 27. See also Wilcoxon v. Wilcoxon, 199 Ill. 244, 250; Walker v. Abt, 83 Ill. 226; Thomas v. Turner, 157 Ill. App. 16; Wilcoxon v. Wilcoxon, 111 Ill. App. 90; Acme Copying Co. v. McLure, 41 Ill. App. 397; Clinton v. Winnard, 135 Ill. App. 274; Vol. 1 Corpus Juris 639.

These are the only matters in the account upon which a question is presented upon this record, and the court finds no error in the action of the circuit court.

The decree of the circuit court of Bond county is therefore affirmed.

Affirmed.


text:
    George McGehee, Appellee, v. Geo. S. Mepham and Company, Appellant.

      Opinion filed January 4, 1935.
    ¡Rehearing denied February 25, 1935.
    Pope & Dbiemeyer, of East St. Louis, for appellant.
    Beasley & Zulley, of East St. Louis, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment of $8,000 which appellee recovered in the city court of East St. Louis, as damages for alleged disability due to an occupational disease contracted by appellee while in appellant’s employ. It is claimed that said, disease was caused by the wilful failure of appellant to comply with statutory provisions for the safety of its employees. The case has twice been tried, each trial resulting in a verdict for appellee. The first verdict was set aside by the trial court because it felt that the verdict ($10,000) was excessive, and appellee refused to remit. In the second trial, which is on review here, the jury returned a verdict for appellee for $12,000. On motion for a new trial appellee remitted $4,000.

As amended, the complaint charged that defendant from 1928 to 1932 operated a factory in which various paints and paint materials were manufactured, in the process of which various rock ores and other similar materials were crushed, milled and ground, thereby causing the fine particles of rock dust, ore dust, sand dust and silica dust to fill the air therein; that because of the presence of said dusts it was dangerous for employees to breathe the air so impregnated with said dusts and which would produce an illness or disease commonly known as dusty lung, pneumoconiosis, fibrosed lung and pulmonary tuberculosis, peculiar to said employment and to which employees in other lines of employment were not exposed; that on July 3, 1928, plaintiff was employed by defendant in its factory and was almost daily and directly exposed to the danger of contracting said illness and diseases through wrongful acts of the defendant as follows, to wit: wilful failure of the defendant to adopt and provide reasonable and approved devices, means or methods for the prevention of such industrial or occupational diseases, or to furnish sufficient masks or respirators which were then such reasonable and approved devices, means or methods, in violation of par. 185, chapter 48, of Cahill’s Illinois Statutes; wilful failure of the defendant to remove from said factory or workshop, so far as practicable, all of said injurious dusts by means of ventilating or exhaust devices, in violation of par. 154, chapter 48, Cahill’s Illinois Statutes; wilful failure to adopt means or methods whereby said dusts would be dampened or saturated/with liquids, which means or methods were then and there approved and reasonable, in violation of par. 185, chapter 48, Cahill’s Illinois Statutes.

Plaintiff,charged that because of said wilful failures on the part of defendant to comply with statutory requirements, and as a direct and proximate result thereof, he contracted said dusty lung disease, pneumoconiosis and pulmonary tuberculosis by frequently inhaling said dusts; that as a result thereof he was compelled to give up Ms employment on March 28, 1932, and since last mentioned date had not earned any wages and would not be able to earn any wages in the future because of disabilities due to said occupational disease, and had incurred medical expenses, and as a result of said diseases was then suffering, and would in the future suffer, pain and agony, sickness and disorder. Plaintiff demanded judgment in the sum of $52,000.

Defendant answered the amended complaint, admitting the operation of its factory, in which paint pigments were manufactured, but denying that in said process of manufacture fine particles of rock dust, ore dust, sand dust or silica dust filled the air; it denied that it was dangerous for defendant to work in said factory or that employees therein were subjected or exposed to the danger of contracting illness or disease-known as dusty lung, pneumocomosis, fibrosed lung and pulmonary tuberculosis, or either of them, or that said diseases, or either of them, were peculiar to said employment. It admitted plaintiff’s employment, but denied that he was at any time exposed to the danger of contracting any illness or disease, or that he did contract the diseases described by plaintiff as dusty lung, pneumocomosis, fibrosed lung and pulmonary tuberculosis, or either of them, or that he was compelled to give up Ms employment at any time because of disability resulting therefrom, or that he was then, ever had been, or ever would be, disabled to any extent because of any alleged occupational disease contracted by him while in the employ of defendant. Defendant denied that any injurious dusts were created or occurred in the course of its manufacturing processes and that it wilfully failed to remove from its factory any injurious dusts by means of ventilating or exhaust devices; it denied that it was engaged in carrying on any work or process which might produce or subject employees to the danger of contracting the alleged diseases in plaintiff’s complaint mentioned; it denied that it wilfully failed and refused to adopt reasonable and approved devices, means or methods for the prevention of said alleged occupational or industrial disease; it admitted that in the department of its plant in which tripoli was processed it furnished respirators to its employees engaged in the manufacturing processes carried on therein; that it did so not because of any knowledge or belief upon its part that employees working therein might or could contract said alleged diseases, but' as a precautionary measure; it denied that there was any necessity for the use of respirators or masks in that or any other department of its plant, or that employees working-in any department of its plant were subjected to the likelihood of contracting the alleged occupational diseases complained of which might have been prevented by the use of respirators or masks, or by adopting means or methods for dampening or saturating any dust occurring in its plant with liquids, and denied that there were any practicable methods or means by which any dust occurring in its manufacturing processes could have been dampened or saturated with liquids. Defendant, by amendment to its answer, said further that the machinery, apparatus and equipment in that, part of its plant known as the White Mill and used for the processing of tripoli or silica was installed in or about the year 1925; that such instalment was made only after the result of thorough investigation, study and experiment extending over a period of five' years prior thereto as to the manner in which tripoli might be processed and the nature and character of machinery, appliances and equipment which might be employed in so doing, so as to prevent the escape of dust into the building in which such process was carried on; that the machinery, appliances and equipment constructed and installed after such investigation, study and experiment, remained in use during the period in which plaintiff was employed in defendant’s factory, and that the devices, means and methods employed and used in the method of processing silica and tripoli during all of such time were reasonable and approved devices, means and methods for the prevention of the escape of dust in the handling or processing of tripoli or silica and for the prevention of any injury to the health of the employees working in said department of defendant’s plant.

It is first urged that the court was without jurisdiction to hear this case for the reason that the matters charged in the complaint are cognizable under section 2 and not section 1 of the Occupational Diseases Act, Cahill’s St. ch. 48, If 186. In other words that appellee’s remedy, if he had one, was compensation through the State industrial commission and not damages at common law to be recovered through the courts.

We have examined the sections above referred to together with the cases cited by the respective parties on this question, and are of the opinion that this contention cannot be upheld. It seems quite plain that the legislature in enacting the Occupational Diseases Act with its amendments, undertook to make a distinction between those diseases especially dangerous and those not especially dangerous. Those not especially dangerous were classified in section 1 of the act. That section has not been changed. Those diseases especially dangerous were classified in section 2. Silica industries have been held to belong in the classification of section 1. First Nat. Bank v. Wedron Silica Co., 351 Ill. 560. It is claimed by appellant that our Supreme Court in the case of Burns v. Industrial Commission, 356 Ill. 602, by its construction of section 2 of the act, brought within that section such diseases as silicon diseases. Appellant bases this claim upon the words of the third of the three classes of employments enumerated in that case as belonging in said section 2. That class is there described as: “Any process of manufacture in which poisonous chemicals, minerals or other substances are used or handled in harmful quantities or under harmful conditions.”

The language is not subject to appellant’s interpretation. The word “poisonous” does not modify the word “chemicals” and stop there, but it modifies the words “minerals” and the word “substances” as well. It is very plain, therefore, that the words “other substances” were not intended to embrace all substances — those classified in section 1 together with the rest. It is limited in its meaning to poisonous substances such as are especially dangerous. If it were not so there would be no excuse for keeping section 1 in the statute. Our Supreme Court has retained the distinction. The word “noxious” used further on in the section does not, in our judgment, interfere with this interpretation.

From July, 1928, to March, 1932, appellee worked in appellant’s paint factory. During those years he worked in most all of its departments. Appellant’s Exhibit 6 shows the hours in which appellee worked in the respective departments. According to that exhibit, he worked in the Bed Mill, the Silica Production Department, at miscellaneous cleanup work, in the Cooper Shop, the White Mill, the Black Mill, the Granite City Plant, the boiler house, the maintenance department and the warehouse. That the conditions under which appellant’s employees worked in these departments were of the character described in section 1 of the Occupational Diseases Act appears obvious. A large number of witnesses testified concerning those conditions. One repaired the conveyor in the Silica Mill. The silican dust coming from these cracks and holes was as fine and dry as flour. There was “a regular fog of silican dust around the elevators.” This extended 20 feet from the packer or elevators. The dust in the Bed Mill was like what you would see driving down a dusty road. At the end of a day’s work the men’s clothing would be covered with red dust. There were no devices for carrying out dust either in the Bed Mill or the Silica Mill.

Another who was the operator of. the Silica Mill testified that the dust around where he worked was so dense that if he set a barrel out clean he could write his name on it in just a little while in silica dust. This dust was a fog. It hurt this witness. He felt the weight of this dust he breathed in his lungs. After he worked there for a week, he had to lay off. The floor around the Silica Mill would be white with silica dust, and the windows would be covered with it. Another witness described the Bed Mill as looking like a fog of dust where an automobile passed. This witness after describing the dust conditions of the Bed Mill at length said: “I did not see any machinery or devices for removing dust except me and my spade and my broom.” He also says there was silica dust around the packer which made a fog to the ceiling, made the walls look as if they had been whitewashed and become shoe mouth deep on the floor.

Another witness described the dust of the Bed Mill as a fog so bad you couldn’t see a man 20 feet away.

These are a few excerpts from the testimony of the many witnesses who were employees of appellant during the time appellee was who are unanimous in describing the dust conditions of appellant’s mills and the effect those conditions had upon them. It seems almost incredible that men should be expected to work under such conditions. Appellant knew and understood these conditions as 'his foremen were through the mills from time to time and saw them.

To this setting, appellee came, free from any of the ailments which he suffered after leaving the employ of appellant. From appellant’s employ, appellee went to doctors for months. These doctors treated Mm and described his condition to the jury.

The testimony of appellant’s witnesses does not satisfactorily meet the evidence above detailed. It is largely of a negative character. Many of the witnesses “did not see” the things described by the witnesses for appellee. That modern and effective means of getting rid of the dust of these mills was not employed is met by the declaration that such means were either not necessary or not practicable for these particular mills. An attempt is made by one of appellant’s managers to describe the adequacy of the means employed .by appellant against dangers of the various dusts. This description admits the necessity of the means described in the statute and also serves to make clear the inadequacy of the means employed. This is also true of the use of the respirators which appellant contends were unnecessary but employed as a precaution. The testimony of the 15 or more witnesses, called by appellee to describe conditions in these mills, cannot be disproven, by the theories of experts. Fact is one thing; theory is another.

If this lawsuit were to be determined on whether the evidence shows that the mills in question were operated in violation of the statute under which this suit is brought there would be no need of further discussion. There is a clear preponderance of the evidence that they were so operated.

Does this record fairly show that appellee was damaged as alleged in his declaration'? Two juries have so found. Twice has the trial court approved of the juries’ findings of fact.

We must dismiss, without further ado, appellant’s contention that the trial court erred in not peremptorily instructing the jury. That contention belongs in the realm of extravagant statement. Pollard v. Broadway Hotel Corp., 353 Ill. 312; Commercial Ins.

Co. v. Scammon, 123 Ill. 601; Mirich v. Forschner Contracting Co., 312 Ill. 343.

We come, therefore, to the controlling question in this case, viz.: Are the verdict and the judgment thereon against the manifest weight of the evidence?

Dr. Campbell, a physician of large experience in the diseases of the lungs and particularly of diseases produced by inhaling dusts, first saw appellee in August, 1933. Appellee had a persistent dry cough, and his respiration was more rapid than normal; his face was cyanotic and his body pale; he had increased dullness over both lungs; fine rales could be heard with a stethoscope over this area. There were increased breathing noises. He had limited chest expansion with rapid respiration. The rales indicated an inflammatory condition going on in the small air sacs of the lungs. Dr. Campbell described in great detail the changing conditions of appellee during the long time he had him under observation particularly as to abnormality of temperature and fever. He says he was under the impression that he had some permanent condition of the lungs. “I believe that he had what we call pulmonary fibrosis with some acute infection going on together with it.” Silica dust would produce irritation and fibrosis of the lungs. Plaintiff’s Exhibits C and B show involvement of the lungs. Appellee is suffering from tuberculosis. He has a permanent pathological condition in his lungs. The period of time appellee worked in appellant’s factory under the conditions would be sufficient to develop fibrosis of the lungs. If he developed fibrosis where his lungs were in constant state of irritation and pathological change, then the breathing of tubercular germs make it much'more easy for him to develop the disease. This would be attributable to appellee’s employment.

Dr. Tripple, a physician of wide experience, both examined appellee and took X-ray pictures of him. He found rales, fibrous tissue and extensive fibrosis of the lungs. He also found nodulations. We cannot in reasonable space set out the testimony of the doctors who testified in this case. The record is long and involved. We can only consider the value of the witness’ conclusions from the standpoint of the foundation laid for his conclusion and thereby determine the value of his conclusion and its probable aid to the jury. Dr. Tripple testifies that it is his opinion that appellee is suffering from silicosis. His condition is permanent. The silicosis is complicated by some superimposed infection. “My opinion is that it is tubercular.”

Dr. Grodwohl examined the X-ray pictures, and says that appellee’s condition is a suggestion of tuberculosis of the lungs, but not conclusive. Scar tissues or fibroids such as are shown by the X-ray films are a permanent deposit in the lungs.

Appellant called six eminent specialists all of whom testified from X-ray plates, but not from personal examinations of appellee. Their testimony is in most respects quite opposed to the testimony of the doctors called by appellee. They testify that the X-ray plates do not show the things which the other doctors claim to have found there.

The testimony of Dr. Hayhurst includes substantially the testimony of all the doctors called by appellant. He testified that silicate dusts may damage the lungs. Silicosis is a condition or disease of the lungs; the result of breathing over a long period of time fine dust composed of silica.

Whether silicosis creates a situation which affords a better field of cultivation for tuberculosis germs is a controversial point.

A man could not contract silicosis by breathing an accumulation of dusts in which silica did not form more than seven per centum of the mixture. There is no evidence of silicosis in the X-ray picture. Ex-Mbit E shows no sign of nodnlations. Exhibit C shows an old tubercular condition but not active.

The testimony of all the doctors when summed up is to the effect that by appellee’s doctors it is shown that appellee is suffering from lung trouble contracted from the work of his occupation and that such disease is permanent. The effect of the testimony of the doctors called by appellant is that the conditions found by the former are not true and could not possibly be true, either from X-ray examinations or otherwise.

The jury saw the witnesses and heard them testify. Obviously they placed their belief in the testimony of the doctors called by appellee. Another jury did the same. We are asked to hold that notwithstanding those verdicts, the truth is given by the doctors called by appellant. Medicine, like law, is not an exact science. If it were it would be possible to find a certain- decision for such questions as are contained in this record. Indeed there are several matters in this record which,all the doctors agree are not capable of definite decision.

The weight of medical authority were we able, to determine that weight in favor of appellant, does not decide the question here involved. We are asked to hold that the judgment in this case is against the manifest weight of the evidence. We do not feel warranted in so holding.

Complaint is made that the judgment is excessive. The trial court considered that question and caused the verdict to be reduced to what in its judgment was compatible with the evidence.

The judgment of the trial court is affirmed.

Judgment affirmed.


text:
    Norman MacLeod, Appellee, v. L. W. Harris, Appellant.
    Opinion filed January 4, 1935.
    Rehearing denied February 25, 1935.
    McGinnis, McGinnis & Talley, of Alton, for appellant.
    Wm. P. Boynton, of Alton, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

On August 1,1930, appellant, a dentist practicing his profession in Alton, Illinois, entered into an agreement with appellee, another dentist in Alton whereby appellant sold his business as a dentist, good will, etc., to appellee. The agreement was in writing and the portion thereof which is pertinent to this case is as follows:

“Party of the first part covenants and agrees that he will not resume the practice of dentistry in Alton for a space of two years from the date of the agreement herein (August 1, 1930) .and then after that should he engage in the practice in the City of Alton he will limit his practice exclusively to the extraction of teeth, for a period of five years from said date.”

On March 8th, almost three years after the making of the agreement, appellee went into the circuit court and obtained an injunction prohibiting appellant from practicing dentistry in violation of said agreement. It would seem that appellee was not hasty in bringing his action.

On January 16, 1934, appellee petitioned the circuit court for a citation against appellant. The petition was allowed and appellant was cited to appear before said court on January 19, 1934, to show cause why he should not be held in contempt of court for violation of the said decree and injunction. A hearing was had, appellant was found guilty of contempt and sentenced to 20 days in the county jail. By permission of court he has brought the record here on appeal.

The evidence in this case is convincing that appellant violated the injunction in question. The circumstances indicate that the violations were in wilful disregard of the court’s order. Little or no denial is made of the specific facts of the practice of dentistry by appellant, not only in violation of his contract but in violation of the express mandate of the court.

It is absolutely essential to a well ordered society that the mandates of courts be obeyed. Every transgression of an injunction under the circumstances of this one must be met with instant and certain condemnation. Appellant is not a person of tender years; neither is he incompetent. He knew better than to disregard an order of court, directed personally and unqualifiedly at him. If he did not know better, it is high time he were learning better and others of like disposition should take notice.

The judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Hebel

text:
    The People of the State of Illinois, Defendant in Error, v. John E. Northup et al., Plaintiffs in Error.
    Gen. No. 35,881.
    Wilson, J., dissenting.
    Opinion filed February 13, 1935.
    John E. Northup, of Chicago, pro se.

    Harold M. Keele, of Chicago, pro se.

    Henry Seyfarth, of Chicago, pro se.

    Grover C. Niemeyer, of Chicago, for plaintiff in error James H. McQueeney.
    Benjamin C. Bachraoh, of Chicago, for defendant in error.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This writ of error is sued out to review the record "and reverse an order adjudging John E. Northup, Harold M. Keele, Henry Seyfarth and James H. Mc-Queeney, hereinafter referred to as the respondents, guilty of criminal contempt of court and sentencing Northup, Keele and Seyfarth to pay fines of $500, $300 and $100 respectively, and McQueeney to imprisonment in the county jail for a period of 30 days, or until discharged by due process of law.

The cause is based upon a petition signed, sworn to and filed by Cameron Latter, praying for the entry of a rule against John A. Swanson and the respondents above named to show cause why they should not be punished for contempt of court. The rule to show cause was entered and discharged as to respondent Swanson on his sworn answer, and an order was entered finding the other respondents named guilty of contempt, which order is as follows:

“This cause now coming on to be heard upon the petition of Cameron Latter filed herein, and upon the sworn answers of each of the respondents, the court finds:

“1. That the case of The People of the State of Illinois vs. Timothy J. Crowe and others, No. 61153, was on the 8th day of January, 1932, and for more than a week thereafter, on trial in the Criminal Court of Cook County and undetermined.

“2. That on January 9, 1932, a petition for habeas corpus was filed in the criminal court of Cook County in case No. 61153 by John W. Latter, wherein it was alleged, among other things, that one Timothy L. Connolly was illegally restrained of his liberty and was in the custody of John A. Swanson or his assistants.

“3. That the writ of habeas corpus, in pursuance to the prayer in said petition, issued out of the Criminal Court of Cook County on the said 9th day of January, 1932, directed the said John A. Swanson and his assistants and others, to bring the body of Timothy L. Connolly forthwith into court.

“4. That Euclid Taylor, an assistant in the office of the State’s Attorney, on behalf of John A. Swanson, made return to said writ of habeas corpus as follows:

“ ‘That he (meaning John A. Swanson) has not the within named Timothy L. Connolly in his custody, nor has he had the said relator in his custody, nor under his restraint, nor under his directions, restraint of his liberty, and that he cannot therefore, produce the body of the said Timothy L. Connolly as commanded.’

“5. That John E. Northup, Assistant State’s Attorney of Cook County, has for more than two years last past been engaged in and in charge of the prosecution of the defendants in case No. 61153, entitled, ‘The People of the State of Illinois versus Timothy J. Crowe and others.’

“6. That prior to January 8, 1932, an agreement was entered into between John E. Northup and Harold

M. Keele, respondents herein, both Assistant State’s Attorneys of Cook County, that Keele should board the train upon which Connolly, in the custody of Mc-Queeney, was traveling, prior to the time at which the train should reach Chicago, and that Keele should offer to McQueeney the services of an automobile to transport him and his prisoner from Joliet, Illinois, to Streator, Illinois, and that if McQueeney should accept the use of said automobile for said purpose, that Keele should request the privilege of riding in said automobile and talk with said Connolly while so riding.

“7. That Keele boarded said train in pursuance of said agreement with Northup, but he boarded said train at Chillicothe, Illinois, and rode on that train continuously until it arrived at the City of Streator in the State of Illinois. Prior to the arrival of the train at Streator, Illinois, Keele had made arrangements with the officials of the Atchison, Topeka and Santa Fe Railroad whereby the train was to be stopped at any point in the State of Illinois, which Keele might direct. Keele had directed two police officers of the City of Chicago, detailed out of the office of the State’s Attorney’s office, to be awaiting at the station at Streator, Illinois, with an automobile. ■

“8. That Keele carried on the conversations with McQueeney and Connolly as hereinbefore set forth.

“9. That after McQueeney — in accordance with the request of Keele — had left the train at Streator, Illinois, McQueeney, Keele and Connolly entered the automobile theretofore provided by Keele, and in company with the two officers, was driven to various towns in Illinois, Indiana, and Michigan, and that on the 13th day of January, 1932, Connolly was delivered by McQueeney to the sheriff of Cook County.

“10. That prior to the 11th day of January, 1932, Henry Seyfarth, another respondent, joined the party and that on the 10th or the 11th day of January, 1932, Keele and Seyfarth learned through the newspapers that'the writ of habeas corpus, aforesaid, had issued, and that at the same time McQueeney learned of the issuance of the writ of habeas corpus.

‘ ‘ 11. That when Keele, Seyfarth and McQueeney on January 10th or 11th, 1932, learned of the issuance of the writ of habeas corpus, it became and was the duty of McQueeney to promptly take measures to have Connolly brought to the Criminal Court of Cook County, as ordered by the writ of habeas corpus; that it became and was the duty of Keele and Seyfarth to take proper measures to cause McQueeney to at once convey Connolly to the Criminal Court of Cook County, as ordered in the writ of habeas corpus.

“12. That neither McQueeney, Keele or Seyfarth took any measures whatsoever towards promptly causing the delivery of Connolly to the Criminal Court of Cook County, as ordered in the writ of habeas corpus, but on the contrary, Keele and Seyfarth, Assistant State’s Attorneys of Cook County, having knowledge of the issuance of the writ of habeas corpus, remained with McQueeney and Connolly and conversed and talked with Connolly concerning matters in the Drainage District Case, so that Connolly was not delivered to the Sheriff of Cook County until the 13th day of January, 1932; that Keele communicated with Seyfarth and that Seyfarth, with the knowledge of Northup, brought records and documents that were used in conversations had by Keele, Seyfarth and Connolly.

“13. That on January 11, 1932, while Keele and Seyfarth were in company with Connolly and Mc-Queeney in South Bend, Indiana, together with the police officers from the State’s Attorney’s office, John E. Northup, respondent herein, was in the court room presided over by court in the Criminal Court of Cook County, when the following colloquy occurred.

“Cameron Latter, the petitioner, filed the petition for the punishment of the respondents for contempt of court stated:

“ ‘Just one thing before it (this case) is dismissed. I might suggest that Mr. Northup enlighten us whether he knows where Mr. Keele is and whether he can reach him, and if he can, he should produce him.’ “Whereupon Mr. Northup said:

“ ‘I don’t have to do anything of the kind.’

“Whereupon the following colloquv took place:

“‘The Court: Well—

“ ‘Mr. Northup: I don’t have to go out 'and ascertain and find out where he is now.

“ ‘The Court: Well, do I understand—

“ ‘Mr. Northup: There is no power on earth that can compel me, in court or out of court.

“ ‘The Court: Let me ask you a question, Mr. North-up, you can answer it or not, as you wish. Do you know where Mr, Keele is?

“ ‘Mr. Northup: I do not. I tell you the absolute truth.

“ ‘The Court: Well, I assume you are telling the truth. Do you expect him in your office today?

“ ‘Mr. Northup: I doubt it.

“ ‘The Court: If he gets in touch with you or you get in touch with him, will you ask him to come in here tomorrow morning?

“ ‘Mr. Northup: I will not. He doesn’t belong here. He shouldn’t be here.’

“14. That when Keele had successfully caused Mc-Queeney to depart from the Santa Fe train and enter into the automobile provided by the State’s Attorney’s office, at Streator, Illinois, and when Keele had successfully caused McQueeney to travel by automobile through three different states and through cities of those states, as hereinabove set forth, McQueeney had surrendered the actual custody and restraint of Connolly to Keele, and through Keele to John E. Northup, and that when on January 10th, or 11th, 1932, Keele, Seyfarth and McQueeney learned of the issuance of the writ of habeas corpus, the statement of John E. Northup in the court room presided over by this court, on the 11th day of January, 1932, as above set forth, conclusively proves a ratification and consent by Northup of the acts of Keele, Seyfarth and McQueeney in keeping Connolly from being delivered to the Sheriff of Cook County or to the Criminal Court of Cook County as ordered in the writ of habeas corpus.

“15. That the conduct of Keele, Seyfarth, and Mc-Queeney in this respect, was the conduct in pursuance of an agreement between McQueeney, Keele and Seyfarth and Northup, and constituted a flagrant contempt of this court.

“The court, therefore, finds, that John E. Northup, Harold M. Keele, Henry Seyfarth and James H. Mc-Queeney are guilty of contempt of court in the cloing of the acts found by this court to have been done by them in the premises.”

The court then imposed the penalties upon the respondents, from which they are prosecuting this writ of error.

The court, in making the findings that appear in the court’s order, considered each of the respondent’s answers, all of which were under oath and substantially as follows:

“The answer of respondent Northup admits the pendency on January 9, 1932, of the Crowe case and that Connolly had not appeared for the trial but had been for three years a fugitive from justice, during all which time the Cook County State’s Attorney and the Federal government had been seeking to apprehend him and if possible to secure his testimony upon the trial, and stated that Connolly’s absence was pursuant to a conspiracy by Connolly and unknown persons to obstruct justice. The answer admits that John W. Latter filed a petition for a writ of habeas corpus for the production of Connolly and states that Connolly had not authorized John W. Latter to sign the petition and that the filing thereof was an overt act in pursuance of a conspiracy between Cameron Latter, John W. Latter and other persons to obstruct justice. The answer admits that the petition for habeas corpus” was presented to Judge Sullivan and that Judge Sullivan ordered that a habeas corpus writ issue, returnable forthwith as prayed. The answer states that Northup had no personal knowledge whether the habeas corpus writ was served upon State’s Attorney Swanson or not and whether Assistant State’s Attorney Taylor made return to the writ to the effect that the State’s Attorney did not have Connolly in his custody and could not therefore produce him. The answer admitted that Northup was an Assistant State’s Attorney and for more than two years then last past had been in charge of the prosecution of the defendants in the Crowe case; that he was assisted therein by Keele and Seyfarth; that prior to January 8, 1932, he learned that through the efforts of the Citizens Association Connolly, one of the defendants, was apprehended in California; that he took measures to cause Connolly’s extradition from California to Illinois; that he had taken part in the designation of McQueeney, as Governor’s agent, to receive Connolly from the California authorities and bring him back to Cook County, Illinois; that he knew McQueeney had received Connolly into his custody and control as such agent and was traveling upon a Santa Fe train from California to Chicago.

“Northup admitted in his answer that prior to January 8, 1932, he conferred with Keele and arranged with him that Keele should board the train on which Connolly was traveling with McQueeney prior to its arrival at Chicago and should offer to McQueeney the services of an automobile to bring him and his prisoner from Joliet, Illinois, to Chicago, and that if .Mc-Queeney should accept the use of said automobile for said purpose then Keele should ask the privilege of riding therein and of talking with Connolly while so riding.

“Northup further stated in his answer that he had no personal knowledge of Keele boarding the train nor of any arrangements made by Keele with the officers of the Santa Fe Railroad and that Northup had no personal knowledge of Keele’s suggesting, inducing and procuring McQueeney to leave the train and place Connolly in the State’s Attorney’s automobile; and that he had no knowledge whether thereafter under the suggestion, procurement and direction of Keele, Connolly in the company of McQueeney and two police officers, in a State’s Attorney’s car, was driven to various places.

“Northup further stated that he had no personal knowledge of an article in the Chicago Sunday Tribune on January 10,1932, stating that a habeas corpus writ had been issued by Judge Sullivan and stated that he had no personal knowledge whether on January 11, 1932, Keele, Seyfarth, McQueeney and Connolly, with two police officers, were in South Bend, Indiana.

“The answer admits that the colloquies recited in the petition took place in the court room of Judge Sullivan on January 11, 1932, substantially as therein stated.

“Northup, further answering, stated that he did not agree with Swanson, Keele, McQueeney or Seyfarth, or all or any two or more of them that the service of said writ of habeas corpus when issued should be evaded in the form that petitioner states it was evaded and denies that what was done by Keele, Seyfarth, the police officers, McQueeney or by any two or more of them in and about the driving of Connolly in an automobile from place to place after his detrainment from the Santa Fe train was done in pursuance of an agreement between Swanson, Keele and Northup to the effect that Keele should do all the things that he did do and Northup denies that any such agreement ever existed.

“Northup, further answering, stated that the acts and things done by Keele and Seyfarth were not the acts and things of Swanson and Northup, nor were they done by reason of any agreement with them.

“Northup, further answering, stated that the acts and things done by Keele and Seyfarth were not the acts and things of Swanson and Northup, nor were they done by reason of any agreement with them. Northup further stated in his answer that he did not, with intent to avoid the effect of the writ of habeas corpus issued on January 9, 1932, transfer and place Connolly in the custody of a person other than Mc-Queeney, nor did he conceal Connolly and change his place of confinement with intent to avoid the operation of the writ of habeas corpus issued January 9, 1932.

“The answer of respondent Swanson is substantially similar to that of Northup.

“The answer of respondent Keele admits the pend-ency of the Crowe case, the absence of Connolly as a fugitive from justice and the efforts made to apprehend him; that John W. Latter signed and filed on January 9,1932, a petition for a writ of habeas corpus in which it was falsely alleged that Connolly was held in the custody of State’s Attorney Swanson and his assistants.

“Keele admits that the petition contained a prayer for a writ of habeas corpus for the production of Connolly and that on January 9, 1932, Judge Philip L. Sullivan ordered that a writ issue as prayed.

“Keele states that he knows that on January 9,1932, Connolly was not in the custody or under the control of State’s Attorney John A. Swanson or any Assistant State’s Attorney or other employee of said State’s Attorney but that on said date Connolly was not in the State of Illinois and was on said day in the custody and under the control of James H. McQueeney, the duly authorized and acting messenger of the Governor of Illinois, and stated that Connolly never has been in the custody or under the control of State’s Attorney John A. Swanson or any of his assistants or employees.

“Keele admitted in his answer that prior to January 8, 1932, a conference was held by Northup with him in which it was arranged that Keele should board the train on which Connolly was traveling in Mc-Queeney’s custody prior to its arrival at Chicago and should offer to McQueeney the services of an automobile to transport him and his prisoner from Joliet to Chicago and that if McQueeney should accept the use of said automobile Keele should request the privilege of riding therein and of talking with Connolly while so riding.

“Keele admits that he boarded the train at Chilli-do the and rode thereon until it arrived at Streator and that he had made arrangements with the railroad officials for the stopping of the train at any point in Illinois which he might direct and that he had directed two police officers of the State’s Attorney office to be waiting with an automobile at Streator, but denied that they were waiting for the purpose of conveying Connolly in said automobile to such places as Keele should direct, but states the fact to be that said officers were waiting with said automobile to drive McQueeney and his prisoner to the Sheriff of Cook County if this seemed proper to said McQueeney.

“Keele, in his answer, denies that on January 8, 1932, he, together with McQueeney, suggested, induced and procured McQueeney to leave said train with Connolly and denies that-he suggested, induced and procured McQueeney to place Connolly in said automobile and stated the fact to be that he advised McQueeney of the presence of said automobile in Streator and that if McQueeney deemed it advisable to leave the train and enter said automobile with his prisoner for conveyance to Chicago said automobile was available for said purpose.

“Keele denied that he individually, or acting for Northup, Swanson, Seyfarth or any or all of them or any two or more of them, by suggestion, procurement or direction, for the purpose of evading any writ of habeas corpus that might issue from any court for Connolly during most of the 8th, 9th, 10th, 11th and 12th days of January, 1932, or any one or more of said days, or any part of said days, cause Connolly, in company with McQueeney and two police officers of the State’s Attorney’s office, to be driven to various cities and towns in Illinois, Indiana and Michigan, but stated that said driving to said towns was by direction of Mc-Queeney and at the request of Connolly.

“Keele denied that said driving was with the intent or for the purpose of evading any writ of habeas corpus that might issue from any court of the United States or the State of Illinois and stated that the possibility of the issuance of such a writ by any court never occurred to his mind and no thought in respect to the issuance of any such writ was ever entertained by him until January 11, 1932, at which time he first learned through a newspaper that such a writ had been issued and that the State’s Attorney of Cook County had made a return thereto that he did not have Connolly in his custody, which return Keele knew to be true, for he knew that Connolly at all times between January 8th and January 11, 1932, had been and then was in the custody and control of McQueeney, agent and messenger of the Governor of Illinois and had not been and was not in the custody of any other person or persons and that delivery of Connolly to the Cook County Sheriff: had been delayed by McQueeney at the request and pursuant to the -entreaties of Connolly and at the request of no other person or persons and that said delivery had been delayed for no other reason.

“Keele admitted that he took no steps on January 11, 1932, to promptly bring Connolly to the Criminal Court'of Cook County in response to said writ of habeas corpus for-the reason that he, Keele, did not have Connolly in his custody or under his control and it would have been useless for him to have attempted to do that which he had no right to do.

“Keele further stated that on Monday, January 11, 1932, he, Seyfarth, McQueeney and Connolly were in South Bend, Indiana. Keele stated that he had no knowledge whether the colloquies between Judge Sullivan and other persons in his court room set out in the petition took place for the reason that he was not present and that the first he ever heard of those matters was after his return to Chicago on January 13, 1932. ‘ ‘ Keele admits that the petitioner, Cameron Latter, heard Ms testimony before Judge Sullivan and denies that during the week preceding January 8, 1932, he, Swanson, Northup, Keele, Seyfarth and McQueeney anticipated and expected that a writ of habeas corpus would issue out of the Criminal Court of Cook County for said Connolly and stated that he had no such anticipation and that the petitioner’s allegation in this respect is knowingly perjured and false.

“Keele denied that anything was done by him, by Seyfarth, by McQueeney, or by any one or by any two or more of them in and about the driving of Connolly in an automobile from place to place in pursuance of an agreement between Swanson, Northup, Seyfarth and Keele that Keele should do all the things he did do and deities that any such agreement ever existed. Keele states that the allegation of the petition in this regard is knowingly false and perjured.

“Keele denied that any agreement was ever made between him and any other person or persons whatever for the purpose of securing the control of Connolly to conceal him and change the place of his confinement with intent to avoid the operation of the writ of habeas corpus issued on January 9, 1932, and denies that he committed any act or acts or did anything to secure the control of Connolly, to conceal him and to change the place of his confinement with intent to avoid the operation of the writ of habeas corpus issued on January 9, 1932, and denied that he at any time or at any place secured or had control of Connolly and stated that never at any time or place did he conceal him and change the place' of his confinement with intent to avoid the operation of any writ of habeas corpus.

“Keele denied that he was guilty of contempt of court and denied that with intent to avoid the writ of habeas corpus issued on January 9, 1932, he transferred and placed Connolly in the custody of a person other than McQueeney and denied that he concealed Connolly and denied that he changed the place of confinement of Connolly with intent to avoid the operation of said writ of habeas corpus and stated that the allegations of the petition were knowingly falsely made and perjured.

1 ‘ Seyfarth, in his sworn answer under oath, admits the allegations of the petition in respect to the pend-ency of the Crowe case, the absence of Connolly and the filing of the petition for habeas corpus on January 9, 1932, for the production of Connolly.

‘ ‘ Seyfarth stated that he had no personal knowledge of any conference between Northup and Keele with reference to the transportation of Connolly and had no personal knowledge whether Keele boarded the train.

“Seyfarth admitted that he was in South Bend, Indiana, together with two police officers, McQueeney the Governor’s agent, and Timothy L. Connolly on January 11, 1932, and that he then read in the Chicago Sunday Tribune of January 10, 1932, that Judge Sullivan had issued a habeas corpus writ for the production of Connolly and that respondent took no steps to bring Connolly to the Criminal Court in response to the writ for the reason that he did not have the custody or control of Connolly.

“Seyfarth states that he has had no knowledge of the statements of Latter, Northup, Judge Sullivan and Swanson in court set out in the petition.

“Seyfarth stated in his answer that he did not anticipate and expect that a writ of habeas corpus would issue out of said Criminal Court of Cook County and that he did not, during the week preceding January 8, 1932, or at any other time, agree with Swanson, Northup, Keele, McQueeney, and neither did respondent or any or all or any two or more of them agree together, that the service of said writ of habeas corpus should be evaded.

“Seyfarth further states that what was done by Keele, himself and by McQueeney was not done in pursuance of an agreement between Swanson, Northup and Keele and denies that any such agreement ever existed.

“Seyfarth further stated that his acts were not the acts of Swanson and Northup and were not done by reason of any agreement with them.

“Seyfarth stated that he did not, with intent to avoid the effect of the writ of habeas corpus issued on January 9, 1932, transfer and place Connolly in the custody of a person other than James H. McQueeney nor did he conceal Connolly and change his place of confinement with intent to avoid the operation of the writ of habeas corpus issued January 9, 1932.

“The sworn answer of James H. McQueeney states under oath that McQueeney admits the pendency on January 9, 1932, of the Crowe case and that shortly before that date Connolly, who had been -a fugitive, had been apprehended in California.

“McQueeney stated that he had been in California continuously for more than a month prior to January 9, 1932, and upon the apprehension of Connolly, McQueeney was by warrant duly and legally issued, authorized and empowered by the Gfovernor of Illinois as messenger and agent of the State of Illinois to take and receive from the California authorities said Timothy L. Connolly, a fugitive from justice and convey him to Illinois, there to be dealt with according to law; that as such messenger and agent, of said State, McQueeney took and received from the California authorities said Connolly and on January 5, 1932, left California upon a Santa Fe train with Connolly in his custody and under his control and restraint as such méssenger and agent en route to Chicago.

“McQueeney stated in Ms answer that on the morning. of January 8, 1932, respondent, Keele, requested him as messenger and agent, having the custody and control of Connolly as aforesaid, to leave the train at Streator with Connolly in his custody; and that pursuant to said request McQueeney, with Connolly in his custody and control, left the train at Streator and with Keele started for Chicago in an automobile supplied by Keele; that in order to complete the talks between Keele and Connolly and with the consent of Connolly, respondent with Connolly in his custody and under his control and restraint, said Keele and others went to various cities in Illinois, Indiana and Michigan and arrived at Chicago on January 13, 1932, at which time he delivered Connolly to the sheriff of Cook County.

“McQueeney stated that on January 14, 1932, he learned that on January 9, 1932, a petition for a writ of habeas corpus to bring the body of Connolly before the court was filed in the Criminal Court of Cook County, alleging that Connolly was illegally held in the custody of John A. Swanson State’s Attorney, and unnamed assistants; that a writ of habeas corpus was issued on said petition and return thereto made on behalf of Swanson to the effect that Swanson did not then have and had not had Connolly in his custody and therefore could not produce him.

“McQueeney stated in his answer that at all times from and after taking'and receiving Connolly from the authorities of California to and at the time of delivering him to the sheriff of Cook County, Connolly was in the sole custody, and under the sole control, restraint and direction of McQueeney as messenger and agent of the State of Illinois and not as an assistant, employee, agent or representative of John A. Swanson, State’s Attorney of Cook County, John E. Northup, Harold M. Keele, Henry Seyfarth, or any or either of them.

“McQueeney stated in his answer that Keele was not on the train on the morning of January 8, 1932, pursuant to any plan, undertaking or agreement with McQueeney or at his suggestion or direction and that Connolly was not taken from the train at Streator and to said towns in Illinois, Indiana and Michigan and his delivery to the sheriff of Cook County delayed until January 13, 1932, for the purpose of evading any writ of habeas corpus that might issue from the Cook County Criminal Court or any other court for said Connolly, or for the purpose of securing the control of Connolly, placing him in the custody of any person other than respondent and/or concealing him and/or changing the place of his confinement with intent to avoid the operation of said writ of habeas corpus issued on January 9,1932.

“McQueeney stated that he had no agreement or understanding whatsoever with Swanson, Northup, Keele or Seyfarth or any or either of them or with any other person to evade the service of any writ of habeas corpus for Connolly in any manner whatsoever.

“McQueeney further stated in his answer, that he was appointed messenger and agent of the State of Illinois by the G-overnor thereof, pursuant to the United States statutes and not by virtue or under authority of any writ of process issued out of or by any officer of the Criminal Court of Cook County, Illinois and that he is not and was not amenable or accountable to said Criminal Court for any act or conduct by him as such messenger and agent and that the said Criminal Court of Cook County is without power or jurisdiction to punish him or adjudge him to be in contempt thereof by reason of any of the matters and things alleged in the petition filed.

“McQueeney denied in his answer that he was guilty of contempt of court and denied that Connolly was transferred and/or placed in the custody of any person other than McQueeney and denies that with intent to avoid the operation of the writ of habeas corpus issued on January 9, 1932, Connolly was concealed or his place of confinement changed. ’ ’

We have set forth in substance each of the respondents’ answers, which are under oath, for the reason that the facts appearing in the several answers are necessary in the consideration of the questions involved.

The trial court, in reaching the conclusion and findings contained in the order under discussion, considered the several answers, as evidenced by the finding that the conduct of Keele, Seyfarth and McQueeney was in pursuance of an agreement between McQueeney, Keele, Seyfarth and Northup, and constituted a flagrant contempt of court. The order also finds that the statement of Northup, made in the court room on January 11, 1932, conclusively proves ratification by Northup and consent to the acts of Keele, Seyfarth and McQueeney in keeping Connolly from being delivered to the sheriff of Cook county.

Upon this finding by the answer of Northup, one of the respondents, he denies that he agreed with Swanson, Keele, McQueeney or Seyfarth that the service of the writ of habeas corpus should be evaded; that what was done after Connolly left the train and was driven from place to place, was not done by Keele and Seyfarth, and that the acts of Keele and Seyfarth were not the acts of Swanson and Northup, nor were they done by- reason of an agreement between them.

Likewise Keele in his sworn answer states that he never agreed with Swanson, Northup, Seyfarth and McQueeney to move Connolly from place to place to evade the habeas corpus writ, and that the acts were not pursuant to an agreement with any of the other respondents. The answers of Seyfarth and Mc-Queeney, which are set forth in the opinion, are to a like effect.

The respondents contend that the answer of the respondents categorically deny under oath the contemptuous act charged against them; that the trial judge was bound to take the answers as true and to discharge the rule as to each respondent; that it effectively appears from the written order of the trial judge that he considered matters cle hors the answers in arriving at his conclusion that the respondents were guilty of contempt, and that therefore the judgment should be reversed; and furthermore that the court erred in considering all the answers together in passing upon the question of the guilt or the innocence of each respondent and imposing the penalties set forth in the order. The rule of procedure to be followed, as stated by the Supreme Court of this State in the case of People v. McLaughlin, 334 Ill. 354, is as follows:

“The distinction between criminal and civil con-tempts has been recognized in this jurisdiction since the decision in Crook v. People, 16 Ill. 534, and has been declared in numerous decisions since. When the contempt consists of something done or omitted in the presence of the court tending to impede or interrupt its proceedings or lessen its dignity, or out of its presence in disregard or abuse of its process, the proceeding is punitive or criminal, and the penalty is inflicted by way of punishment for the wrongful act and to vindicate the authority and dignity of the people as represented by their judicial tribunals. In such cases the defendant is tried upon his answer, alone. No other evidence may be heard. If the party charged shows by his answer under oath that he is not guilty of the contempt charged his answer is conclusive. If the answer is false the remedy is by indictment for perjury. The answer must be taken as true, and if sufficient to purge the party of the contempt he is entitled to be discharged. (O’Brien v. People, 216 Ill. 354; Hake v. People, 230 id. 174; Rothschild & Co. v. Steger Piano Co., 256 id. 196; People v. Seymour, 272 id. 295; People v. McDonald, 314 id. 548.)”

This procedure has been approved by a long line of authorities in this State which have followed the rule in equity proceedings and courts of law, announced in Blackstone’s Commentaries in these words:

“Thereafter (referring to courts of equity) after the party in contempt has answered the interrogatories, such his answer may be contradicted and disproved by affidavits of the adverse party. Whereas, in the courts of law, the admission of the party to purge himself by oath is more favorable to his liberty, though perhaps not less dangerous to his conscience; for, if he clears himself by his answer, the complaint is totally dismissed.”

This court in the case of Welch v. People, 30 Ill. App. 399, in an opinion by Justice Gary, in which Justice Garnett and Justice Moran wrote separate concurring opinions, held that where the respondent in a common law proceeding, in answer to a rule to show cause why he should not be attached for contempt, denies the entire charge by affidavit, he is entitled to his discharge. It is improper to hear oral evidence to contradict such affidavit.

This rule has also been followed, in addition to the cases announced as authority for the rule in People v. McLaughlin, 334 Ill. 354, in Oster v. People, 192 Ill. 473; People v. Grogan, 178 Ill. App. 314; and Perry v. Kausz, 167 Ill. App. 250. It not being proper to hear oral evidence to contradict respondent’s answer, the rule would clearly apply in the consideration of facts other than the facts in each of the respondent’s sworn answers in this case, in order to determine the guilt of such respondent. The reason for the rule, as we gather from the opinions of the court, is if the answer of the respondent denies the various allegations charged against him in a contempt proceeding, he is purged of any contempt and is entitled to be discharged in a common law proceeding. The case, therefore, is ended so far as the question of contempt is concerned. On the other hand, if the respondent by his sworn answer has committed perjury and he is indicted for the offense, when the case is tried at the request of the respondent, the facts must be submitted to a jury of his peers.

It is evident that the trial court disregarded the answer of each of the respondents in determining whether the respondent by his answer purged himself of contempt, but the court considered respondents’ answers collectively in determining the guilty, and in so doing disregarded the rule that the answers are to be taken as true. This was error.

The rule that we have been considering and which limits the court to the sworn answer filed by the respondent in the determination of whether or not the respondent is guilty of contempt, is the rule of procedure approved by the Supreme Court of this State, and is to be applied by this Court, even though we may doubt the wisdom of the rule that a court may not entertain evidence in addition to the evidence offered by the defendant in determining the guilt or innocence of a defendant in a contempt proceeding. Mr. Justice Moran, in a special concurring opinion, in the case of Welch v. People, 30 Ill. App. 399, then being considered by the Appellate Court, was inclined to criticise the rule, although obliged to apply it, as it was the established law. However, he said in his opinion:

‘‘While the rule of practice is as stated, and while the courts are undoubtedly bound by it as a rule of procedure, it is a rule of common law practice which, in my opinion, does not in our day and generation tend to the promotion of public justice. . . .

‘ ‘ Contempt proceedings against jury-fixers under the common law rule by which the courts are now bound, are idle. A man who will bribe a juror, will, as a rule, purge his contempt by denying the fact in an affidavit, and take his chances in a trial for perjury in the Criminal Court, and will generally go unwhipped of justice. The courts can only declare the law as they find it, and follow it as it is. The Legislature alone can make new laws or change existing methods of trial and rules of procedure, and to the Legislature, those who would make contempt proceedings for jury-bribing effective, must look for a change of the common law rule.”

The suggestion made by Justice Moran applies with equal force to the conditions as they now exist, and if the rule is to be changed, it must be changed by the legislature, which can enact laws to change existing methods of trial and rules of procedure.

From what we have above stated, we are of the opinion that the court erred, and the order will be reversed.

Order reversed.

Hall, J., concurs.

Wilson, J., dissents.

Dissenting Opinion.

Wilson, J.:

I am unable to concur with the majority opinion in this case. It does not appear to me that Northup by his answer has purged himself of contempt. He admits by his answer that he conferred with Keele and arranged to have Keele board the train on which Connolly was traveling with McQueeney prior to its arrival at Chicago; that he, Keele, should offer to McQueeney the services of an automobile to convey them from Joliet, Illinois to Chicago and that Keele should ask for the privilege of riding therein, so that it is apparent that the defendant Northup had discussed plans by which Connolly was to be spirited from the train and brought to Chicago in a manner which would forestall the purpose of a writ of habeas corpus exactly as was accomplished in the case at bar. Moreover, the defendant Northup in his answer stated that he had no personal knowledge of Keele boarding the train or inducing or procuring McQueeney to leave it with his prisoner, nor of the fact that the State’s officer, together with Keele, was driven in a State’s attorney’s car to the various places charged, before bringing Connolly to Chicago. He does not deny, however, that he had knowledge, but insists in his answer that it was not personal. If by personal knowledge is meant actually seeing and observing, then Northup did not have personal knowledge. But, in my opinion, if he knew of the arrangements which were being carried out, even though indirectly, and failed to assist the court in attempting to bring about the presence of Connolly before the court, he was guilty of contempt.

Under his answer, in my opinion, evidence was admissible which would bear on the question as to whether or not his conduct was such as to interfere with and obstruct the due administration of the law. Courts have so surrounded the contemnor with its protection that the dignity of the court has suffered. While the rule appears to be that the defendant in this class of cases should be dismissed upon his sworn answer and by his answer subjects himself to the charge of perjury, nevertheless, I am unable to recall any instance wherein such perjury proceedings have been instituted.

The contempt being one involving the processes of the court and the due administration of the law, the court is the only one, usually, who has a particular interest, and the court’s interest generally ceases when it finds that by reason of a sworn answer it is rendered helpless in upholding the dignity of the judicial procedure,


author: Mr. Presiding Justice PIebel

text:
    Transformer Corporation of America, Defendant in Error, v. W. Hinchcliff, Trading as Hinchcliff Motor Service, Plaintiff in Error.
    Gen. No. 37,302.

      Opinion filed February 13, 1935.
    Hicks & Folonie, of Chicago, for plaintiff in error.
    Michael J. Thuma, of Chicago, for defendant in error; Chester D. Kern, of Chicago, of counsel.
   Mr. Presiding Justice PIebel

delivered the opinion of the court.

This cause is in this court upon a writ of error directed to the circuit court of Cook county and prosecuted by the defendant from a judgment in the sum of $3,399.10 in favor of the plaintiff entered by the court upon a remittitur of $149.02 by the plaintiff from a verdict of $3,548.12, returned by the jury.

The action is one in assumpsit to recover damage to merchandise consisting of 211 radio sets delivered by the plaintiff to the defendant, and received by the defendant, as a common carrier, for carriage by motor truck from Chicago, Illinois to St. Louis, Missouri, and there to be delivered to the consignee at that point.

An amended declaration was filed, consisting of two counts. The first count alleges, in substance, that on February 21, 1931, the defendant, being a common carrier of goods by motor truck, the plaintiff, at Chicago, Illinois, delivered to the defendant, and the defendant received as a common carrier, 126 Model C-51 and 85 Model C-53 Clarion radios complete with tubes, the property of the plaintiff, of the value of $8,929.25, to be taken care of by the defendant and safely carried to and delivered at St. Louis, Missouri, for the plaintiff; that defendant in consideration thereof, and of a reward in that behalf, promised the plaintiff to take care of the goods and to safely carry the same by motor truck from Chicago to St. Louis, Missouri, and at St. Louis, Missouri safely deliver the goods for the plaintiff, but that the defendant did not take care of the goods, or safely carry or deliver same, but through the negligent and improper conduct of the defendant, and his servants, they were wholly lost to the plaintiff. The second count is substantially the same as the first, except that it alleges 80 of the radios, together with 135 kits of tubes, were wholly lost to the plaintiff, and the residue of the goods greatly damaged.

To the amended declaration the defendant filed a plea of the general issue and a plea that the defendant was not a common carrier.

The evidence is to the effect that the plaintiff delivered to the defendant at Chicago, Illinois, a load of merchandise for carriage by motor truck to St. Louis, Missouri. On February 21, 1931, at Chicago, the defendant signed and delivered to the plaintiff a receipt or bill of lading for the merchandise, consisting of 90 Model C-51 and 60 Model C-53 radios, some of which were sold and consigned to the Famous-Barr Company, St. Louis, Missouri, and 36 Model C-51 and 25 Model C-53 were consigned to the Electric Lamp and Supply Company, St. Louis, Missouri. These radio sets were crated in boxes when loaded. The motor truck left plaintiff’s plant on February 21,1931, about four o’clock p. m. Thereafter the defendant called the plaintiff on the telephone and advised the company that the radio sets were in a wreck and the defendant was returning them. Two or three days after the shipment, the goods were returned to the plaintiff in Chicago. The radio sets when returned were damaged, water soaked and broken up. The salable radios were sold to the Triangle Electric Company in April 1931, for $4,324.50. The rest were turned over to plaintiff’s salvage department and sold for $262.60. It was stipulated the merchandise sold for $7,929.25, and it also appeared in the evidence that plaintiff suffered the loss for which judgment was entered and after plaintiff had entered a remittitur of $149.02.

The defendant’s evidence is that the merchandise was received in good condition and not delivered; was returned but not in the same condition as when received by the defendant from the plaintiff; defendant was engaged in the trucking business, and had previously hauled radios for the plaintiff for delivery in Indiana and other States by motor vehicle; and defendant was located in Chicago, Illinois, at Pershing Road and 39th street, where defendant maintained a loading platform and a storage place. Defendant testified:

“In my business I did not have any established or published rates on file with any commission. When anyone called me in regard to hauling a load I found out what kind of a commodity and what price was set on that commodity by the Interstate Commerce Commissiop, hpw far distant it had to go; and what was the risk involved, and based our rate on that, and informed the party of what the shipment would cost, before we even went over to load the merchandise. I did that with the Transformer Corporation.”

No other evidence of the defendant was offered and received, except the three invoices.

The point is made by the defendant that the plaintiff was not the owner of the damaged merchandise and therefore suffered no injury as the result of the damage to the goods while in transit; that the action to recover against the defendant for such damage, if any, is in the consignee, on the ground that the plaintiff’s evidence established that the radios were sold to the consignee named in the bill of lading. Therefore plaintiff was without title.

It is not disputed that the defendant, a carrier, after receiving the radios in question never made delivery of the consigned goods; that the goods were damaged while in the possession of the defendant because of a wreck and were returned by the defendant to the plaintiff. This would indicate the defendant considered the goods those of the plaintiff. Defendant was the bailee of the goods, and the contract was made for the purpose of making delivery to the named consignee, but instead the defendant returned the goods to the plaintiff, the bailor.

The right of the plaintiff to maintain this action is based upon the rule announced by the Supreme Court in the case of Great Western R. Co. of 1859 v. McComas. 33 Ill. 185, wherein the court said:

“Here McComas was the bailor of this property, so far as the railroad company was concerned, and if Conrad was the owner, the company should show that it had been restored to him without injury to McComas. As a general rule, if the bailor is not the owner of the thing bailed, the bailee must, ordinarily, restore it to him. Story on Bailments, sec. 266; Whit tier v. Smith, 11 Mass. 20. The railroad company was the agent of McComas, of whom they received the property, and they are not at liberty to dispute his title in an action brought by him. Goslin v. Birnie, 20 Eng. C. L. 153; Hall v. Griffin, 25 id. 118; Harman v. Anderson, 2 Cowp. 243; Stonard v. Dunkin et al., id. 344. The case of Freeman v. Birch, 28 E. C. L. 543, settles the point that either the bailor or bailee may sue. Davis v. James, 5 Burrows, 2680, and Moore v. Wilson, 1 Term R. 659, are referred to, to support the principle. In Nichols v. Bastard, 2 Exch. 659, it was also held that either bailor or bailee might sue, and which ever first obtains damages it is a full satisfaction. Angel on Carriers, sec. 493.

“It is very questionable if the carrier can be permitted, of his own mere motion, to set up, as a defense against his bailor, the right of the real owner, 6 Wharton (Penn.), 418.” See also Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311.

The defendant is estopped by his acts to question the ownership of the plaintiff. This position of the defendant is not in keeping with his contract, wherein he agreed with the plaintiff to make delivery of the merchandise to the consignee therein named, but instead of delivering he recognized the ownership of the plaintiff after the goods had been damaged by reason of a wreck, and returned the damaged merchandise to the consignor.

The plaintiff’s contract with the defendant was not performed by the defendant, and by reason of failure to perform and the consequent damage to the property while in the possession of the defendant, the plaintiff is entitled to recover in this action.

It is also contended by the defendant that the evidence fails to establish that the defendant was a common carrier and received the goods in that capacity. The business carried on by the defendant was that of hauling goods and merchandise to points not alone in Illinois, bnt also to points in several surrounding States. The defendant was in business for that purpose, and would haul goods for anyone who required such service.

In fixing rates for the carriage of goods, the defendant takes into consideration the rates determined by the Interstate Commerce Commission for the carriage of a commodity, the kind, the distance and the risk involved, and upon the rates so determined, carries goods by motor truck to the designated place of delivery.

The bill of lading signed by the parties in the instant case, indicates the rates and designation. There is also evidence that the defendant had previously hauled radios for the plaintiff by motor truck for delivery in Indiana and other States.

The defendant’s place of business is located in Chicago, Illinois, at Pershing Eoad and 39th street, where he maintains a loading platform and a storage place. The evidence indicates that the defendant holds out to the general public that he is a common carrier for the purpose of hauling goods and merchandise, for hire, for delivery to designated points, fixed by contract.

The question as to what constitutes a person, firm or corporation as a common carrier has been passed upon by courts of appeal in this State. Parmelee v. McNulty (1858), 19 Ill. 556, 558; Rathbun v. Ocean Accident & Guarantee Corp., 299 Ill. 562, 567; McCusker v. Curtiss Wright Flying Service, Inc., 269 Ill. App. 502, 520.

The trend of the several authorities is that a common carrier is one who undertakes, for the public, to transport from place to place such persons or the goods of such as choose to employ him for hire. We believe that the evidence is sufficient, and that the defendant comes within the rule above stated.

Upon the question of damages, the defendant offered no proof whatever that would excuse his failure to deliver the goods to the consignee. The plaintiff received the damaged radios returned by the defendant, that is, all but certain radios not accounted for. No explanation appears in the record as to what caused the damaged condition of these radios. This action is one in assumpsit, and the damage sustained was by reason of failure of the defendant to deliver the goods to the consignee under the terms of defendant’s contract. The presumption prevails that where there is no showing by the defendant why the goods were not delivered, but were returned to the plaintiff damaged, there was an absence of reasonable care, and the defendant cannot excuse himself, even by contract. Adams Express Co. v. Stettaners, 61 Ill. 184.

Considering the value of the property when delivered to the defendant and the sale of the damaged radios and the salvaged parts at the price received by the plaintiff, we are of the opinion that the evidence was sufficient for the jury to determine the amount of damages sustained by the plaintiff and to return the verdict upon which the judgment was entered after a remittitur in the amount consented to by the plaintiff.

Complaint is made of plaintiff’s second instruction, which told the jury that the plaintiff had a right to recover if they found from the evidence that the defendant was guilty of negligence or want of ordinary care, and the loss resulted therefrom, without fault on the part of the plaintiff, and it is argued that this instruction was improper under the pleadings; that the issue of negligence was not in the case.

Having reached the conclusion that the defendant was a common carrier for hire, this instruction was more favorable to the defendant than it would have been under the rule that common carriers are liable as insurers for all injuries or loss not resulting from the act of Grod, or of the public enemy. In other words, this instruction places a greater burden upon the plaintiff than was necessary under the facts as established by the evidence in this case, and therefore the instruction was not harmful to the defendant. Hinchliffe v. Wenig Teaming Co., 274 Ill. 417.

In conclusion, there does not seem to be any error in the record which would justify a reversal of the judgment entered by the court. The judgment is therefore affirmed. ■

Judgment affirmed.

Wilson and Hall, JJ., concur.