text:
    W. I. Grinestaff, Appellee, v. New York Central Railroad, Appellant.

    Gen. No. 8,264.

      Opinion filed January 24, 1929.
    Bearick & Meeks, for appellant; S. O. Murray, of counsel.
    Hutton & Clark, for appellee.

       The above, which is the original opinion, was withdrawn. A modified opinion was filed instead and is reported at p. 589, post.

   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action brought by appellee to recover damages for injuries resulting from an automobile collision which occurred at a railroad crossing in Hammond, Indiana, on November 26, 1927. There were various counts in the declaration charging negligence, and the fifth count charged a wanton and wilful injury in that appellant was in the possession of and operating a line of railroad; that one of said tracks, at grade, intersected and crossed at right angles a paved public street called Kennedy avenue which ran north and south, and from which crossing the tracks of appellant extended west for a distance of 200 feet and from thence turned and extended to the southwest for a distance of 1,500 feet, where it connected with other railroad tracks. Also, that at a place 400 feet south of said crossing, on said avenue, said highway was crossed at right angles by four other railroad tracks; that Kennedy avenue, for three years next preceding the accident, was traveled in the nighttime by an average of one hundred vehicles per hour; that at said crossing there were stationed no gates, bells or like means of warning, and that in the nighttime, and for three years preceding, to the westward from said avenue there were, at distances ranging from one-fourth mile to two miles, one thousand lights upon moving and standing engines and cars, buildings and posts, ranging in height from 9 to 15 feet from the ground, which lights were likely to deceive the traveling public using said highway and crossing, not knowing or determining whether any trains were traveling upon appellant’s tracks over said crossing. And the count proceeds: that said conditions created and constituted an extrahazardous condition, well known to appellant; that on said date and in the nighttime and in the dark, appellee was traveling upon said Kennedy avenue from the south and riding in his said automobile in a northerly direction toward and at said crossing; that appellant, by its servants, then operated an engine and tender from a point 1,500 feet southwest from said crossing, running backwards with the tender in front thereof, upon and across said Kennedy avenue crossing; that upon said engine so approaching said crossing, there was on the easterly end only a small light 6 inches in diameter, not of sufficient size and intensity to be a1 sufficient warning of the approach of the engine and tender, which insufficiency of said small light and facts aforesaid were well known by the servants of appellant, or would have been known to them by the exercise of due care on their parts; that appellant, by its servants, from a point 500 feet westerly of said Kennedy avenue wilfully, wantonly and negligently, at a high and dangerous rate of speed of 30 miles per hour, without sufficient warning by whistle (or bell or other warning sound) from said engine, or a sufficient light from the easterly end of the tender and engine, backed and propelled said engine over said crossing, and in consequence thereof, said engine collided with said automobile and appellee was not apprised of the approach of said engine, and thereby he was injured in person and property.

The cause was presented to a jury and at the close of appellee’s case and at the close of all the evidence appellant moved the court to exclude the fifth count from the consideration of the jury and for an instructed verdict upon said fifth count, which was refused, and there was a verdict in favor of appellee in the sum of $5,000. Motion for new trial was made and overruled and judgment entered upon the verdict, from which appellant has appealed.

One of the chief contentions upon this appeal is whether the proofs submitted were sufficient to establish a wanton and wilful injury. Other errors are pointed out and it is strongly contended that appellee was guilty of gross negligence in attempting to cross the tracks in advance of a moving engine, and that the verdict and judgment can only be sustained under the fifth count. We shall, therefore, give attention to the fifth count and the proofs thereunder.

Hammond is a city of sixty to seventy thousand population and the crossing in question within 150 or 175 feet from the railroad switch yards and in an open territory free from buildings and obstructions, bul covered by a network of railroad tracks. The territory between the tracks of the Michigan Central and appellant are triangular in form and all is level ground and free from any obstructions, except about 300 feet west and south from the crossing on appellant’s tracks there is a signal shop about 16 by 20 feet (one story) high, and further west some small buildings. There were some lights on tanks to the northwest of the crossing and other lights to the west and northwest one-fourth to one-half mile away. The concrete on Kennedy avenue at the Michigan Central crossing was 48 feet wide and at- appellant’s tracks 28 feet in width at the north side.

On the night in question appellant’s freight train from the east had stopped about eighteen car lengths east of the crossing in question, cnt off sixty cars and gone forward over this crossing; hauled the sixty cars into the Gibson yards, detached the engine and tender, which then ran backwards to the northeast, over the curve, past the signal shop, thence nearly east towards Kennedy avenue crossing to connect with appellant’s train left standing east of the crossing. There is no testimony in the record offered by appellee tending to show in any respect the speed of the engine-and tender in its backward course. There is no testimony in the record tending to show the amount of road traffic over this highway, except that appellee had crossed at this same place earlier in the week and in the preceding week, and had lived at Hammond and worked upon the roads and was then working at Hammond and driving a team upon the roads, although his home was at Hoopston.

The witness Linton also testified that he had been over -the road one hundred times; that it had been paved ten or twelve years and leads from Indiana Harbor to Ridge Road, was a main thoroughfare and used constantly, and the witness stated: “I can safely say there are a thousand cars go across there in a day’s time.” Only two cars were seen upon the street on the night in question and there are no proofs as to what the traffic is in the night.

That the territory was much congested by railroad tracks was shown by appellee’s testimony that while he was driving from where he lived in Hammond to where he worked, he crossed seventy-five railroad tracks. He did not know whether these tracks were main line or side tracks. North of the crossing in question another railroad crossed Kennedy avenue on a viaduct 1,500 feet north of the place of accident. Between these points another railroad also crossed the avenue. Appellant had another main line of railroad entering the Gibson yards from the northeast, which went northeasterly and southwesterly about 1,500 feet to the northwest of the place of the accident. The oil tanks and lights were all to the west and north of the latter railroad. There were no oil tanks, lights or obstructions between it, Kennedy avenue, and the tracks upon which the engine and tender engaged in the accident were running. The Gibson Railroad yards extended southwesterly and westerly for about, a mile and a half from a point about 200 feet west from the point of injury.

Appellee, with his Ford tudor sedan, was driving north on Kennedy avenue at 1:00 or 1:30 at night. Mary Burnett sat behind appellee on the rear seat and Matt Burnett beside her to the right. Matt Burnett and Mary Burnett had been married in Gary, Indiana, about ten miles from the place of the accident, at 8:30 the preceding evening and the party had left Gary in the car at 9 p. m. and had been riding continually since leaving Gary. They had not been out of the car and were on their way back to Gary. While going over the crossing in question, the engine and tender backed into appellee’s car, demolishing it, causing the death of Ida Cobb and inflicting serious injuries upon appellee. Appellee contends that he places reliance upon each count in the declaration and that he fully established each count. The cause went to the jury on all the counts in the declaration and there was a general verdict. If appellee, therefore, has not established the fifth count and made out a case of wilful or wanton injury, the verdict cannot stand. The injury could not have been caused wilfully' or wantonly and negligently at the same time. (Chicago City Ry. Co. v. Jordan, 215 Ill. 390; Walldren Express & Van Co. v. Krug, 291 Ill. 472; 45 Corpus Juris 674.)

Appellee, Matt Burnett and Mary Burnett each testified that it was a dark, cold night; that when they approached the Michigan Central tracks, 350 feet to the south there is a large red sign in the center of the road and the car was stopped; that they drove on the right-hand side of the road and were watching all along for trains after crossing the Michigan Central tracks and proceeding north; that the lights on the Ford car were working perfectly and the car proceeded at a rate of ten to twelve miles per hour. Appellee and each of the Burnetts testified that after crossing the Michigan Central tracks each looked both east and west continually for signs of a train upon appellant’s railroad. Matt Burnett testified it was so dark one could see nothing. All of them knew they were coming to railroad tracks because the lights on their automobile showed the rails plainly, one stated 150 feet away and another 75 feet away, and all could see the signboard-with a light on it marked “Railroad Crossing, Danger.” The car was slowed down to eight to ten miles per hour and appellee testifies that all along between the two crossings he was looking from east to west and saw nothing and just a few feet before his car came to the south rail he again looked in both directions and saw nothing. Just as his front wheels got over the rail he looked west and a big black object, like a building, loomed up and struck him. In most particulars appellee is corroborated by the witnesses Matt Burnett and his wife, Mary. All saw the rails on the track, the danger sign and knew they were coining to a railroad and knew of the existence of the railroad as they had traveled the road before. All of them testify to the same facts with a remarkable corroboration in detail and with successive reiterations. All testify that no bell was rung or whistle blown until after the accident, and that there was no light of any kind at the rear end of the tender.'

Appellee presented a witness, Russell Linton, who, accompanied by Roberta E. Gardner, at the time of the accident was driving a Studebaker car south on Kennedy avenue, and who saw the engine and tender just as Linton came under the subway, 1,500 feet north of the place of the accident. Linton testified that he saw the headlight plainly and the engine just before it backed to the crossing, when he was 1,500 feet away. He also, upon approaching the crossing, saw a railroad cross-arm with a light on it on the right-hand side of the road, similar to the one on the south side of the intersection on the east side of the road. He further testified that he did not see a small white bull’s eye or blizzard light burning on the east end of the tender; and testified that when he first came under the viaduct he was conscious that an engine was moving upon the tracks from the fact that its movement was shutting off the lights. Linton had testified that no whistle was blown or bell sounded. Later he modified his testimony by identifying a written instrument he had made to the effect that if a whistle was blown or bell rung he did not hear either. Linton was 23 years of age, a student at Purdue University studying electrical engineering, and in his vacations employed by the Inland Steel Company at Gary.

Roberta E. Gardner testified she was riding with the witness Linton, sitting at his right. When they came out of the viaduct she saw the tender of the engine. She stated she did not see the headlight of the engine and heard no whistle blow or bell ring. She did see the headlights of appellee’s automobile and saw the tender of the engine come upon the highway 1,500 feet away.

The declaration charged and the testimony confirmed that on the east end of the tender, facing the highway, there was a bull’s .eye light and that it was burning, but it is charged that it was not of sufficient size and intensity to be a sufficient warning of the approach of the engine and tender. This substantially covers the testimony of appellee upon which the-count for a wilful or wanton injury is based and upon which the court must determine whether the fifth count should have been withdrawn from the consideration of the jury.

There was the further testimony of the railroad employees, the engineer, fireman and brakeman, who testified that the light to the rear of the tender was burning, and that it could be seen on the night in question for a distance of 50 feet, and on a clear night for a distance of half a mile. This testimony further showed that the whistle was blown at a point 350 feet west from the crossing, two long and two short blasts; that the automatic bell was being rung continually as the engine approached the crossing and until the accident, when the engineer shut if off. The engineer testified that the first knowledge he, had that there was an automobile anywhere near him was when the fireman stated that a car was coming fast and he shut off his engine and drifted and as they came near the crossing the fireman said, “He is going across.” The engineer states that he immediately put on his brakes and about that time the crash occurred. The conductor went down to the yards with the sixty cars, but did not return to the train. He testifies that when he left the engine the light at the rear of the tender was burning. There is no testimony in the record as to the speed of the engine and tender. It is peculiar in this case that appellee should charge in his declaration that a light was burning at the rear of the tender, but not of sufficient intensity, and then furnish testimony that there was, no light on the tender at all. In the end, even the testimony of appellee’s witnesses is modified to show the presence of the light. It appears to this court impossible that Linton, when he was 1,500 feet away, could see and sense the presence of an engine and tender before it arrived at the crossing, or just as it was coming up to the avenue, and appellee could know nothing about it when the tender was not over 10 feet distant from him with a light burning at its rear. No statute or ordinance of the State of Indiana is cited or pleaded attaching any duty or obligation upon the part of appellant to further safeguard this crossing further than may be required by the statutes or laws of this State, and we may presume that Indiana, like our own State, commits the various questions of hazardous operation of railroads and protection to the public to the determination of an administration board. The declaration charges that the engine was running at the rate of thirty miles per hour. This is not proven. It is charged that one hundred vehicles per hour pass over this crossing in the nighttime. There was no proof to this effect. Only two vehicles were on this highway on the night in .question during an interim of fifteen to twenty miniffes. The statutes of this State would have required appellant to have blown the whistle or to have rung the bell upon approaching the crossing in question. Whether appellant was derelict in this respect or even was running .its engine at too high a rate of speed would not have been sufficient, standing alone, to convict appellant of a wilful or wanton injury. (Browne v. Siegel, Cooper & Co., 191 Ill. 226; Powell v. Kempton, 231 Ill. App. 380, 384; Lamarre v. Cleveland, C., C. & St. L. Ry. Co., 217 Ill. App. 296, 305.)

But appellee complains in Ms declaration, “there were stationed there no gates, watchman, bells or like means of warning to appraise any such members of such public, so traveling along said avenue,” etc., and thereupon appellee contends that it was an extrahazardous crossing and appellant wilfully or wantonly injured appellee. That result does not follow. It may be that negligence might result from some such inactivity, but a wilful and wanton injury comprehends a different state of facts. As Mr. Justice Heard said in Lamarre v. Cleveland, C., C. & St. L. Ry. Co., supra:

“ ‘In order that one may be held guilty of wilful or wanton conduct, it must be shown that he was conscious of his conduct, and conscious, from Ms knowledge of existing conditions, that injury would likely or probably result from Ms conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result. In order to establish wantonness it is not necessary to show an entire want of care. The violation of a statute does not constitute a wilful wrong. A wilful injury will not be inferred when the result may be reasonably attributed to negligence or inattention. ’ 29 Cyc. 510.’’

In the case at bar there can be no question but that if appellee had been in the exercise of due care and caution for, his own safety the accident would not have happened. He stopped his car at the Michigan Central crossing 350 feet to the south. He knew that it was a dark night and, if it was as dark as the witnesses contend, it was appellee’s duty, when he saw the danger sign and knew he. was approaching a railway crossing, to stop and listen. Many of the facts in this ease are subject to the rules laid down in De Bow v. Cleveland, C., C. & St. L. Ry. Co., 245 Ill. App. 158, 164:

“If a person looks he is supposed to look for the purpose of seeing, and if the object is in plain sight and he apparently looks but does not see it, it is manifest he does not do what he appears to do. The law will not tolerate the absurdity of allowing a person to testify that he looked and did not see the train when the view was unobstructed and where, if he had properly exercised his sight, he must have seen it. Such is the language of the courts in variant form in the following cases: Chicago, P. & St. L. Ry. Co. v. DeFreitas, 109 Ill. App. 104, 106; Chicago & A. R. Co. v. Vremeister, 112 Ill. App. 346-351; Chicago, R. I. & P. Ry. Co. v. Jones, 135 Ill. App. 380, 384; Toledo, St. L. & W. R. Co. v. Gallagher, 109 Ill. App. 67; Kennedy v. Alton, G. & St. L. Traction Co., 180 Ill. App. 146-149. There may be such inherent improbability in the testimony of a witness as to authorize a court or jury to disregard it, even though there is no contradictory evidence by other witnesses. Kuehne v. Malach, 286 Ill. 120; Stephens v. Hoffman, 275 Ill. 497; Kennedy v. Modern Woodmen of America, 243 Ill. 560.”

The conditions on the night in question must be determined by the proofs submitted by appellee’s witness, Linton. The case stated then is, without the proofs on the part of appellant, that appellant’s employees were moving an engine and tender along a known railway toward a crossing at a very slow and moderate rate of speed. They were moving backward and in view of the public highway. They neglected to blow the whistle or ring’the bell. There was a bull’s eye light at the back end of the tender that could be seen for 50 feet. The engine and tender made a grinding and rumbling noise that one at the crossing could not avoid hearing if he had stopped and listened, at any time when the engine was within 50 or 100 feet away from the crossing. Appellant’s employees, it may be presumed, saw appellee with his car approaching and relied and depended upon the fact that appellee would stop at the crossing as the lights and danger signal gave him warning. It was the duty of appellee to stop at the danger signal at the crossing until he could see and know that the crossing was clear. As the court said in Bartlett v. Wabash R. Co., 220 Ill. 163, 166: “Daily was not required to stop the train so soon as he saw Stampfer upon the track, but had the right to assume at that time he would act as a reasonably prudent man and leave the track to avoid being run over by the moving train, and so soon as Daily discovered Stampfer did not intend to leave the track and was in a perilous situation, he was only required to use reasonable care to avoid injuring Hm.”

It is elementary in this State that it is the duty of one approaching a railroad crossing, a known place of danger, to use due care and caution — to stop, look and listen to see that the track is clear, and that it is not the duty of railroads to stop their trains at crossings except to avoid a known or probable accident. If darkness entirely obliterates view, the traveler on the highway should stop and listen. To contend that failure to ring a_bell or blow a whistle, even under the conditions stated with no other attending circumstances, argues a wilful and wanton injury, is no more forceful than the contention that appellee’s failure to stop, look and listen at the crossing argues a wilful and wanton purpose on the part of appellee to derail the train.

This case differs from Bremer v. Lake Erie & W. R. Co., 318 Ill. 11, 21, in which the engineer, running a train in a heavy fog, knowingly disobeyed a plain signal of the road, upon which signal all traffic on the road had the right to rely, and wantonly precipitated a collision and caused injury. This case differs materially from Neice v. Chicago & Alton R. Co., 254 Ill. 595, 603, and kindred cases, in that the crossing in question in the case at bar was not a place provided by the railroad for the use of the public in the transaction of its business, where persons have a right to be for legitimate purposes. The crossing in question was a place provided for the mutual accommodation of appellant and those using the public highway, in which each have mutual rights and in which each was bound by mutual obligations.

In Brown v. Illinois Terminal Co., 319 Ill. 326, 331, the rule is stated: “A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, suph as a failure, after knowledge of the impending danger, to' exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. (Lake Shore & Michigan Southern Ry. Co. v. Bodemer, 139 Ill. 596; Heidenreich v. Bremner, 260 id. 439; Illinois Central Railroad Co. v. Leiner, 202 id. 624.)”

It will not do to say that the State should have required a watchman, gates or bells at this crossing, as under the laws of this State the administration had a right to do. That is an administrative function with which courts have nothing to do. What is the evidence or facts and circumstances proven in this case that brings appellant within the rule of having committed a wilful or wanton injury? No proofs of any kind are offered by appellee tending to show how or in what manner appellant’s employees operated the engine, its speed or other directions, except witnesses testify that the whistle was not blown or the bell rung and the night was dark. Linton saw the train and appellee could have seen it and the headlight with its glare to the southwest, if he had looked and used due care and caution. All parties saw the bull’s eye light at the rear of the tender, and appellee could have seen it if he had looked and used due care and caution in sufficient time to have stopped his car and avoided the injury. The whole situation presents a case, regardless of the specific acts of negligence charged, upon which we do not pass, where appellant’s employees relied and depended upon appellee stopping at the crossing for which he, evidently, slowed down the speed of his car and when they found that appellee was not going to stop at the crossing appellant’s employees did everything in their power to avert the injury ;■ they stopped the engine before it had run its length. We find no proofs in this record which warrant the court in sustaining the verdict and judgment, based upon a wilful Or wanton injury. The judgment is based upon the fifth count charging a wilful and wanton injury, as well as upon the other counts. That constitutes error. The court should have withdrawn the fifth count from the consideration of the jury.

Such other errors that appellant assigns which have merit, doubtless will be corrected upon another trial. For the reasons stated, the judgment of the circuit court of Vermilion county is reversed and the cause remanded for another trial.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Shurtleff

license: Public Domain

text:
    Rhoda Leeper, Appellee, v. Arthur E. Gay, Administrator of the Estate of William Riley, Deceased, Appellant.
    Gen. No. 8,278.

      Opinion filed January 24, 1929.
    M. Finlay Cabbott, for appellant.
    Wilson & Sohmeideskamp, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an appeal by appellant, administrator of the estate of William Riley, deceased (called the estate in this opinion), from a judgment entered in the circuit court of Adams county in favor of appellee (denominated herein the claimant) for the sum of $1,060 as an allowance to claimant for care of the deceased in his lifetime. The proofs on the part of claimant, tended to show that claimant nursed and cared for the deceased from August 14, 1923, to September 1, 1925, the date of his death. He was a batchelor and came to live with claimant early in 1922. While he was well along in years and had retired from business, he was in good health and remained in good health until August, 1923, and prior to that time did not require any nursing or personal care. Claimant agreed with him to give him board and lodging for $6 a week. In November, 1922, there appears to have been a conference at the Camp Point Bank between claimant and Mrs. Eunice Allen, the mother of claimant, since deceased, and William Riley, Mordecai Riley, his brother, and Arthur E. Gay, at which time the board and lodging of deceased was increased from $6 to $7 per week. The controversy commences with this meeting, the contention of the estate being that claimant at this time entered into a contract, agreeing to furnish room, board, care and washing for the deceased, while it is insisted by claimant that nothing was said about care as deceased at that time was in perfectly good health and not in need of any care or nursing. It is further claimed by the estate that claimant later demanded and received $3 per week extra, at various times, on account of the sickness of deceased, which claimant denied and insisted that any extra sums which she received over $7 a week were for expenses that she incurred for purchases for deceased’s benefit.

It is further contended by claimant that in August, 1923, deceased became seriously incapacitated and his condition steadily grew worse until the time of his death on September 1, 1925; that deceased was a serious and almost constant care and burden from the month of August, 1923, until the time of his death; that from August, 1923, on, his bodily functions were so impaired that he frequently soiled the bed clothing and his own clothes both by day and by night, and also the carpets and furniture; that he had to be fed at the table, and to receive more or less assistance in getting around the premises.

The testimony of claimant as to the value of the services was uncontradicted and there seems to be no question but that claimant was paid the sum of $6 per week and $7 per week after November, 1922, by check given her until the deceased died, except the sum of $15.71 on said account was paid to claimant after his death. The deceased’s business affairs apparently were managed by the bank, of which the witness Gay in this suit, administrator and appellant, was president. Generally the checks appear to have been signed by the deceased making his mark, often in the presence of Gay, and some checks were signed by the president for the deceased. A number of the checks running through the period are marked “For Board” and one check for $20 was found, marked “Mar. 13 to Mar. 28, (1925) $15, extra pay, $5.00.” Another check for $7 was found, marked “Paid to April 18,1925,” and many checks were found with an additional amount added, as for example, one for $11.50 with the notation, “Telephone for Wm. Eiley goods,” and one for $2.80 marked “for shoes.” The witness Gay, for appellant, testified: “She (claimant) bought his clothing and she would give it to William and say to me to send a check to her for so much clothing. Sometimes she would say, ‘William was sick last week, at $3,’ and the check for this week which would be for $10.” The witness testified that the $10 per week was for such weeks as the deceased was sick and required additional care. It was contended by the estate that there was an implied understanding that in case of sickness the deceased was to pay an additional sum of $3 per week. This was denied by claimant. 'In this connection counsel for the estate inquired of the witness: “About how many times was she paid $3 extra for his care?” This question was objected to and the objection was sustained by the court, to which ruling the estate assigns error. All payments were made by check, of which the witness Gay made out a considerable number. The checks were all in evidence and constituted the best evidence. The account of the deceased at the bank, showing all deposits made and checks drawn, was offered in evidence, is in the record and we have examined same, and the record of all of the checks given claimant is before us. We find only one check for $3 given by the deceased on June 28, 1924, and one check for $10 given by deceased on March 10, 1924. So far as we can determine from the record before us, no check for $3 or for $10 Vas ever paid to the claimant from the funds of the deceased, and we find only one check, dated August 8, 1925, for $17 with the note, “extra for past week $3.” The witness Gay probably knew more about the business of deceased in his lifetime than any other person, and was appointed administrator of his estate.

On September 25, 1925, after the death of Riley, a claim was made out by claimant for $15.71, sworn to before the administrator and was paid. This claim is conceded to be for board and is marked “To board.” At the time it was made out it was distinguished from another claim then made. The witness Gay testified: “About the time I prepared the claim for $15.711 prepared another claim for her for $150. I prepared the $150 claim afterwards. I drew the claim at the instance of Mordecai Riley and Mrs. Leeper. Mordecai is a brother of William and one of the beneficiaries of his estate. I did not prepare any $150 claim; it was a claim Mr. Riley wanted to give her.”

Gay further testified: “I told her she would have to come up to the bank, that I would have to make it in the form of a claim. I talked to her in her house about it in the presence of Mordecai Riley. I told her I could not hand her $150, but would have to put it in the form of a claim. She came up to the bank. I did not draw a claim for $150. I am sure I didn’t draw a claim for $150 and it was afterwards torn up. I had a further conversation with her at the bank. In that conversation she didn’t exactly refuse the $150 but wanted me to see if I could get them to make it $200. I said I didn’t draw a $150 claim, but drew one for $200. She signed the claim which was afterwards tom up. She said she would not take that; she did not say what she wanted but said she would not take the $200. She insisted on more than $200. After William’s death Mordecai and I were out at her house when Mordecai said: ‘Gay, it would be all right to give Rhoda $150 extra; just make her a present of it. She has been good to all those coming here and she has taken good care of William and I would like to give her that much. Rhoda has not been paid very strong; we will give her $150.’ ”

There was testimony in the record sufficiently ample, if it was credited by the jury, to conclude that the condition of deceased during the period was such that the care and nursing required and performed warranted the verdict.

Witnesses were offered by claimant, who testified that in conversations with Riley they had heard him say: “Mrs. Leeper was just as good as a mother; that his brother would not keep him; that he didn’t have very much but that she was going to be well paid when he was gone.” To others he was quoted as saying that “he was paying her (claimant) for his board, but he was not paying her what she really ought to have for caring for him, but when he was through with it he wanted her to be well paid for it.” Other similar statements were made.

There was some talk of a will and the witness Dan Perrigo testified that claimant told him she had a will drawn for the deceased, but he would not sign. The same witness testified that claimant told him she received $3 at different times as extra pay for nursing and care. The claimant denied these statements, and as to the extra payments she is corroborated- by the bank’s record of the account of the deceased. The cause was submitted to a jury upon all of these proofs and the jury has found in favor of the claimant. The record is brought to this court by the estate for review.

The main contention of fact seems to be over the contract made in the bank at Camp Point in November, 1922, between the claimant, in the presence of her mother, and the deceased, in the presence of his brother and Gay. It is the contention of the claimant that the payment of $7 per week was to cover only the board and room. On the other hand, it is the contention of the estate that the language used coyered board, room, nursing and care. The latter contention is much weakened by the proofs that shortly thereafter, according to appellant’s contention, there was a new arrangement made to pay $3 a week extra whenever the deceased was sick or needed further care. Both claims are weakened in the proofs by the attempt of Mordecai Riley, a brother, to make a present of $150 or $200 to the claimant after his brother’s decease. The jury heard the testimony, had the witnesses before them, and while the proofs are conflicting we cannot say that the verdict is against the manifest weight of the testimony and appellee is entitled to all the favorable inferences to be drawn therefrom. (Dick v. Zimmerman, 105 Ill. App. 615, 616; O’Brien v. Palmer, 49 Ill. 72, and Hess v. Rosenthal, 55 Ill. App. 324.)

Inasmuch as the evidence of either side to the controversy, standing alone in the record, would support a verdict, the verdict may be accepted as decisive of the controversy. (Abrams v. Rideout, 101 Ill. App. 131; Watson v. Fagner, 105 Ill. App. 52, affirmed 208 Ill. 136; Whitsell v. Rising, 109 Ill. App. 91.)

The fact that payment was made for board raised no presumption that it was intended as full satisfaction for all services rendered. Fry v. Fry, 119 Mo. App. 476, 94 S. W. 990.

Appellants assign error upon the sustaining of objections by the court to the offer of testimony on the part of appellant. The witness Omer was not permitted to state what payments were made by deceased to claimant after November, 1922, unless the payments were made by the witness; and the further question if more payments were made thereafter than had been paid before. The estate was not prejudiced by these rulings, as the evidence of all payments, with their respective dates, was before the jury and the questions were not competent. The witness Mordecai Riley was not permitted to state whether the claimant in his .presence had ever asked for any money for boarding and taking care of his brother other than the $7 and $10 per week. There was no proof in the record that an answer to the question could have contradicted and the question called for a conclusion. Other similar questions were asked and objections sustained, to which we need not give further space.

Appellant assigns error upon the giving of certain instructions for appellee. The second instruction informed the jury if they believed from a preponderance of the evidence that claimant, with the consent of the deceased, rendered services to the deceased, which were accepted by him, and that the claimant had not been paid for such services, if any, then that the claimant would be entitled to recover, etc. To this and other instructions it is objected that the language of the instruction might be construed to cover services other than care and nursing specifically mentioned in the cliiim presented. The jury could not have been misled by this instruction, as it was conceded upon the trial that all claims for board and lodging had been paid, and the entire controversy was over the claim for “care and nursing.”

The next instruction objected to limits the services to such as might have been rendered in addition to board and lodging. All of the instructions are to be read as a series. McFarlane v. Chicago City Ry. Co., 288 Ill. 476. The presumption would be that the services mentioned in the instruction were those included in the claim. The instruction was correct and stated a recognized principle of law. Rogers v. Daniels, 116 Ill. App. 515. The rule laid down in Miller v. Miller, 16 Ill. 296, does not apply inasmuch as the family relation was involved in Miller v. Miller, supra, and is not involved in the case at bar; it was not involved in Rogers v. Daniels, supra.

We cannot agree with appellant in his objections to appellee’s instructions numbered two, three, four and five. Appellant assigns error upon the refusal of the court to give appellant’s offered instructions seventeen and twenty-two. Appellant’s instruction number seventeen is sufficientlyeovered by appellant’s instruction number nine and the substance of appellant’s instruction number twenty-two is sufficiently covered by appellant’s instruction number thirteen.

Finding no errors in the record sufficient to warrant a reversal, the judgment of the circuit court of Adams county is affirmed.

'Affirmed.


author: Mr. Presiding Justice Jones

text:
    Parish State Bank, Appellant, v. M. G. Tremore, Appellee.
    Gen. No. 7,973.

      Opinion filed February 4, 1929.
    Rehearing denied June 18, 1929.
    V. A. Parish, for appellant.
    E. P. Harney, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

Parish State Bank, a banking corporation, appellant, brought suit against appellee, M. Gr. Tremore, to recover the amount paid by the bank to him on a check bearing a forged indorsement. A jury trial was waived and the cause was tried by the court. This appeal is from a judgment for appellee.

The facts were stipulated, and disclose that about six months prior to the date of the check, Tremore met an insurance solicitor by the name of W. R. Smith. Tremore was an employee of the Chicago & Eastern Illinois Railroad Company, and, as a side line, ran a bus through and around Momence. He drove Smith about considerably, and Smith gave him a check for $15 on a Chicago bank, which was cashed at a local bank and went through the Chicago clearing house.

Some time afterwards, Smith again came to Momence and requested Tremore to drive him from Momence to Kankakee. With Smith was another man who was introduced to Tremore as Smith’s partner. Tremore drove them to the grocery store of Arthur English in Kankakee. Smith went into the store and after remaining an hour and a half or two hours, came back to the automobile for the return trip to Momence. While driving through Kankakee, Smith said he wanted to get a check certified and requested Tremore to stop in front of the Legris Trust & Savings Bank. Smith went into the bank and when he came out they drove to Momence, stopping in front of the Central Hotel which is about opposite Parish State Bank. Smith said to Tremore, “I haven’t money enough to pay you for this trip but I have a certified check here and I want to go into the hotel, and I wish you would take it across to the bank and have it cashed.” Tremore went to the Parish State Bank and presented the check. The bank cashed it, paying him $150, which was the amount of the check. Tremore returned to the automobile and paid Smith the $150, less his taxi bill of $7. The record discloses that when the check was presented to the bank, Tremore did not indorse it and there was nothing said between him and the cashier at the bank. It was stipulated that at the time the check was presented, Tremore did not know there were any indorsements on the back of the check; that he paid no attention to it whatever, and had no connection with Smith and had no knowledge of the procuring of the check or getting it indorsed, except as to what had already been said. He was a patron and depositor of the bank when the check was cashed.

The check in question was drawn by Arthur English, whose signature thereon was genuine. It was drawn on the Legris Trust & Savings Bank and was payable to the order of the Foulds Company, but it was never delivered to the payee and never came into its possession. It was indorsed in blank by what purported to be the signature of the Foulds Company, but that indorsement and all others on the check, except the bank indorsement, were forgeries. It was certified by the Legris Bank without the knowledge or consent of the payee or of appellee.

After appellant bank cashed the check, it indorsed it and sent it through the usual channels for collection. In due time it reached the Legris Trust & Savings Bank, was paid by it, and charged to English’s account. It was later found that the indorsement of the Foulds Company was a forgery. The Legris Bank then reimbursed English and obtained a judgment before a justice of the peace against appellant bank for the amount of the check, which was paid without appeal. Thereupon this suit was instituted. No propositions of law were submitted, and the court having tried the cause without a jury, upon a stipulation of facts, the only question to be determined by this court is whether or not the facts stipulated sustain the judgment of the trial court. (Bione v. Bell, 221 Ill. App. 434; Babbitt v. Grand Trunk Western Ry. Co., 285 Ill. 267.) Appellant contends that the check was payable to bearer because, although payable to order, it was indorsed in blank; that Tremore negotiated it by delivery and warranted it to be genuine, in all respects and that he had good title, to it.

Section 9 of the Negotiable Instruments Act, Cahill’s St. ch. 98, ¶ 29, provides that an instrument is payable to bearer, when, although originally payable to order, it is indorsed in blank by the payee or a subsequent indorsee. The check in question was not indorsed by the payee. The purported indorsement was a forgery, neither was it indorsed in blank by any subsequent indorsee. In National Surety Co. v. Halsted Street State Bank, 246 Ill. App. 92, it is held that forgery of the indorsement of a payee’s name on a draft, the payee being a real person, does not constitute the draft payable to a fictitious person and subject to the provisions of section 9 of the act. By analogy, the check in the case at bar did not come within the terms of the statute and was not payable to bearer.

Appellant also claims that Tremore negotiated the check by delivery, and cites section 30 of the Negotb able Instruments Act, Cahill’s St. ch. 98, ¶ 50, in support of that contention. That section provides: “An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof; if payable to bearer, . . . it is negotiated by the indorsement of the holder, completed by delivery.” The check was not payable to bearer and was not indorsed by the holder. The holder is the person or indorsee who is in possession of it or the bearer thereof. (Cahill’s St. ch. 98, ¶ 213.) Therefore, Tremore did not negotiate the check by delivery.

It is claimed that Tremore is liable under the provisions of section 65 of the Negotiable Instruments Act, Cahill’s St. ch. 98, ¶ 85, which provides that every person negotiating an instrument by delivery or qualified indorsement warrants: (1) That the instrument is genuine and in all respects what it purports to be; (2) that he has a good title to it; (3) that all prior parties had capacity to contract; (4) that he has no knowledge of any fact which would impair the validity of the instrument. Inasmuch as Tremore did not negotiate the check by delivery or qualified indorsement as contemplated in the statute, the warranties mentioned are not applicable to the facts in the case at bar.

The fact that Tremore was the agent of Smith in cashing the check and did not disclose the name of his principal did not render him liable under section 69 of the Act, Cahill’s St. ch. 98, ¶ 89, which provides that when a broker or' other agent negotiates an instrument without indorsement, he incurs all the liabilities prescribed by said section 65, Cahill’s St. ch. 98, ¶ 85, unless he discloses the name of the principal and the fact that he is acting only as agent. It appears from the stipulation that Tremore really had nothing to do with the transaction other than to carry the check from Smith to the bank for payment and return the money. The part he performed was merely that of a messenger. He did not pretend to represent Smith, or to exercise any authority or discretion in the matter, but simply performed an errand at Smith’s request. He was not Smith’s agent in the sense the statute contemplates. (Doyle v. Teas, 4 Scam. (Ill.) 202; 40 C. J., Messenger, 653, note 99, quoting Pfisier v. Central Pac. R. Co., 70 Cal. 169; Booker v. Booker, 208 Ill. 529.) Under the definition of the word “negotiate” as laid down in section 30 of the act, Cahill’s St. ch. 98, ¶ 50, Tremore did not negotiate the check. The stipulated facts fully warranted the judgment.

Judgment affirmed.


author: Mr. Justice Boggs

text:
    Nina Scharfenstein, Administratrix of the Estate of Whitney C. Scharfenstein, Deceased, Appellee, v. Forest City Knitting Company and Security Building Company, Appellants.
    Gen. No. 7,948.

      Opinion filed March 4, 1929.
    Rehearing denied June 18, 1929.

      Lathrop, Lathrop •& Brown and North, Linscott, Gtbboney & North, for appellants.
    Hall & Dusher, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

An action on the case was instituted by appellee against appellants in the circuit court of Winnebago county, to recover for the death of appellee’s intestate, alleged to have been caused through the negligence of appellants.

The original declaration was filed April 2, 1927. On March 11, 1928, an amended declaration was filed to which appellants filed separate demurrers. Said demurrers being overruled, appellants severally filed pleas of the general issue, of the statute of limitations, of partial payment, pleas that if there was any right of action, it was in favor of the Illinois Central Railroad Company under the doctrine of subrogation, and pleas of release of the Illinois Central Railroad as a joint tort-feasor. Demurrers filed to the special pleas were sustained. A trial was had, resulting in a verdict and judgment in favor of appellee for $8,000. To reverse said judgment, this appeal is prosecuted.

Two switch tracks or leads run in a southwesterly direction from the west line of Francis Street in the City of Rockford. The southerly one serves appellant, Forest City Knitting Company’s plant, lying south of it; the northerly track serves the Rockford Drilling Machine Company, whose building lies north of it.

Appellant Security Building Company was constructing a building and garage for the Forest City Knitting Company, and had employed'Putney Brothers to make the excavation therefor. In making said excavation, certain of the dirt was placed between said switch tracks.

On the afternoon of December 16, 1925, a switch engine, the crew of which included appellee’s intestate, was backing in a southwesterly direction, pulling two cars, on the track of the Rockford Drilling Machine Company. Appellee’s intestate had thrown the switch which caused the engine to enter the track leading to the Rockford Drilling Machine Company’s plant, and had given the signal to back up.

The engineer heard some one “hollow,” and stopped the engine. When appellee’s intestate was next seen, he was under the footboard of the engine. The foot-board was bent back against the brake beam, which was across Scharfenstein’s leg, but did not touch it. Howard Janes, the foreman of the appellant building company and Holding Anderson, secretary and treasurer of said company, went to the place where the engine had stopped and tried to raise the footboard from Scharfenstein’s body, breaking a piece of 2x6 timber in the attempt. The engine was then moved some 5 or 6 feet in order to extricate appellee’s intestate. He was fatally injured, and died a few hours thereafter.

It is first contended by appellants that the original declaration did not state a cause of action, in that it attempted to recover under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, ¶ 321 et seq., and that no recovery could be had against appellants under that act, as they were not common carriers; that the amended declaration, being filed more than one year after said injury, would be barred under the State statute of limitations, and that the court erred in sustaining demurrers to said pleas.

While the declaration set forth that appellee’s intestate was engaged in interstate commerce, and alleged damages of $25,000, this would not render said declaration bad as against appellants under the State statute, if the facts averred set forth a cause of action-even though stated defectively. The allegation as to the amount of damages is one of form, and, if 'not objected to on the trial, cannot be taken advantage of on appeal. Grand Lodge A. O. U. W. of Illinois v. Bagley, 164 Ill. 340-342. It may be amended after verdict. Tomlinson v. Earnshaw, 112 Ill. 311-313. See also Beidler v. Sanitary Dist. of Chicago, 211 Ill. 628-640.

The original declaration charged in substance that on December ■ 16, 1925, while appellee’s intestate, a switchman for the Illinois Central Railroad Company, was switching certain cars to be used in interstate commerce, and while he was in the exercise of due care for his own safety, the engine upon which he was. riding struck certain dirt or refuse belonging to appellant knitting company, placed there by appellant building company without the knowledge of appellee’s intestate, “and with the knowledge of the Forest City Knitting Company and under their direction, and that said dirt had become frozen and impact and covered with snow so as to be hidden from view by the said Whitney C. Seharfenstein, deceased,” and that appellee’s intestate was thrown under the locomotive, etc. and sustained the injuries in question.

It is further urged that said original declaration does not allege a duty on the part of appellants to appellee’s intestate, a neglect thereof with resulting injury, etc. It is only necessary that the pleader state facts from which the law will raise a duty, and its omission and resulting injury. When that is done, an allegation that the act was negligent is unnecessary. Taylor v. Felsing, 63 Ill. App. 624-628, affirmed in Taylor v. Felsing, 164 Ill. 331-335; Miller v. S. S. Kresge Co., 306 Ill. 104-106. Appellants owed to appellee’s intestate the duty not to place obstructions along the switch tracks of his employer so as to endanger his life while in the exercise of his duties as such switchman.

In suits for wrongful death, the “cause of action” is the wrongful act, neglect or default causing death, and not merely the death itself. Mooney v. City of Chicago, 239 Ill. 414-423; Crane v. Chicago & W. I. R. Co., 233 Ill. 259-262. When a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the cause of action is the thing done or omitted to be done, which confers the right upon the other to sue. Greene v. L. Fish Furniture Co., 272 Ill. 148-156; Mooney v. City of Chicago, supra. The original declaration stated a cause of action against appellants, although defectively.

The amended declaration, after alleging the placing of said dirt, etc., averred that appellee’s intestate “was riding on the footboard of the engine which was backing; that the running board struck the refuse and dirt which appellants had negligently and carelessly dumped along and adjacent to said switch track, so that it was broken and bent . . . and said deceased was thrown from said running board or foot-board upon said engine, down to and upon the ground,” etc.

The cause of action, both in the original and amended declarations, was the alleged wrongful depositing of said dirt, along said tracks, with the resultant injury to appellee’s intestate. The amended declaration did not state a new cause of action. See Swift Co. v. Gaylord, 229 Ill. 330-334. The statute of limitations does not apply to matters of mere pleading, and it should not be given that effect indirectly by holding that an imperfect statement of a cause of action is no statement of it. North Chicago St. R. Co. v. Aufmann, 221 Ill. 614-620.

It is next insisted that there can be no recovery against appellants, for the reason that said dirt was placed on said tracks by employees of Putney Brothers, who were claimed to be independent contractors.

While the men who did the work were employed and paid by Putney Brothers, all or certain of said dirt was placed by the express direction of appellants. Howard Janes, a foreman for appellant building company, testified that Mr. Hubbard, the secretary of appellant knitting company, on inquiry as to where to put the dirt from said excavation, said, “ ‘Put the dirt between the switch tracks. ’ I told the men to put the dirt between the switch tracksJ’ This witness further testified that the Security Building Company was desirous of disposing of the dirt as inexpensively and close by as it could. “That was the object in my talking with Mr. Hubbard.”

Hilding Anderson, the secretary and treasurer of appellant building company testified that the disposal of said dirt was left to Mr. Janes. He was then asked the following questions and made the following answers:

“Q. Well, that was within his (Mr. Janes’) part of the work, the disposal of the dirt as he wished to or could?
“A. With the consent of the owners.
“Q. By that you mean you would not put it on any land there without the consent of the person who had charge of the land?
“A. Charge of the building, — owner of the building; I don’t know who owned the land, but in charge of the building.
“Q. Did the Forest City Knitting Company have anything to do with that (disposal of the dirt) ?
“A. Yes, they told us where they wanted it.”

With reference to the excavating of the dirt, this witness testified: “I called Mr. Putney on the phone, that I wanted him over at that job to get that dirt out the next day.”

Adam K. Putney, witness for appellants, testified:

“The Security Building Company requested me to send a team and the man and the slip and the extra man. I don’t recall whether I saw them personally or whether they telephoned us. ... I don’t recall that they told me what they wanted them for. According to my records they worked one day and a half. I was not there. I told them that the Security people wanted a team to go down there, and they went.”

E. E. Snyder, an employee of Putney Brothers, testified on behalf of appellants that he assisted in said excavating. lie further testified: “We got our orders from some man from the Security people. ... I put it down like they said.”

In determining whether or not a party is an independent contractor or an employee, ‘ ‘ The right to control the manner of doing the work is the principal consideration which determines whether "the worker is an employee or an independent contractor. (Decatur Railway and Light Co. v. Industrial Board, 276 Ill. 472.) The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent. . . . An independent contractor is one who contracts to do a specific piece of work, furnishing his own assistance and executing the work either entirely in accordance with his own ideas or in accordance with a plan previously given him by the person for whom the work is done, without his being subject to the orders of the latter in respect to the details of the work. (LaMay v. Industrial Com., 292 Ill. 76; Meredosia Drainage District v. Industrial Com., 285 id. 68.) . . . The fact that payment is to be made by the piece or the job or the day or the hour does not necessarily control where the workman is subject to the control of the employer as an employee and not as a contractor. Franklin Coal Co. v. Industrial Com., 296 Ill. 329; Amalgamated Roofing Co. v. Travelers Ins. Co., 300 id. 487.” Nelson Bros. & Co. v. Industrial Commission, 330 Ill. 27-29.

The testimony of Janes and Anderson is to the effect that while Putney Brothers’ men did the excavating, the direction as to where the dirt was to be placed was left with Janes, and he placed it under the direction of appellant knitting company. In other words, the details of the work were under the direction of appellants. '• Putney Brothers were not independent contractors. Decatur Railway and Light Co. v. Industrial Board, supra, 474.

It is next insisted that the court erred in giving appellee’s instruction No. 6. It is contended that this instruction directs a verdict; that it omits the question of proximate cause and does not submit the defenses sought to be made by appellants.

If the facts stated in said instruction were affirmatively found to exist from the evidence, it would warrant a recovery. The finding of such facts would in effect determine that appellee’s intestate was thrown from said engine instead of having slipped therefrom; that the proximate cause of his injury was the piling of said dirt along the tracks, and that said dirt was placed there with the knowledge and under the direction of appellants. The court did not err in giving this instruction. See North Chicago St. R. Co. v. Aufmann, 221 Ill. 614-621; James S. Kirk & Co. v. Jajko, 224 Ill. 338-343; Devaney v. Otis Elevator Co., 251 Ill. 28-41.

It is next insisted that the court erred in giving appellee’s eighth instruction, in that said instruction referred to appellee as the widow of said deceased. As the evidence disclosed that she was the sole next of kin, it was not error to give said instruction.

It is next insisted that the court err§d in refusing appellants’ ninth, twelfth, thirteenth, eighteenth and nineteenth instructions.

The ninth and twelfth instructions sought to direct the jury’s attention to the duty which the Illinois Central Bailroad Company owed to appellee’s intestate, to furnish him with a safe place to work. That question was not an issue in the case, and the court did not err in refusing to give these instructions. There was no evidence on which to base appellants’ thirteenth instruction, and the court did not err in refusing the same. Appellants’ eighteenth and nineteenth refused instructions, so far as they stated correct principles of law, were covered by other instructions given. Twenty-one instructions were given on behalf of appellants.

It is next contended by appellants that the court erred in sustaining a demurrer to the plea of payment by the Illinois Central Railroad Company, and in sustaining an objection to the offer in evidence of the instrument entered into between appellee and said railroad company at the time said payment was made.

Said instrument is as follows:

“For and in consideration of the sum of seventy-five hundred ($7500.00) dollars, received by me as administratrix of the estate of Whitney C. Scharfenstein and as widow and sole heir of said Whitney C. Scharfenstein, deceased, receipt of which is hereby acknowledged, I as such administratrix of said estate and as such widow and sole heir do hereby covenant and agree not to sue the Illinois Central Railroad Company nor any of its officers, servants or employees on account of any matter, cause or thing whatsoever and more especially on account of the death of the said Whitney C. Scharfenstein, deceased, resulting from injuries received while in the employ of said Illinois Central Railroad Company and working as switchman with switch engine 247 when he was thrown under same at Rockford, Illinois, on the 16th day of December,. 1925.
“It is expressly understood and agreed that this instrument is not a release to the Illinois Central Railroad Company nor to any other person whosoever, but is simply a covenant not to sue the said Illinois Central Railroad Company, its officers, servants or employees on account of the said death.”

The construction of said contract was for the court. Traders’ Mut. Life Ins. Co. v. Humphrey, 109 Ill. App. 246; Scarlett v. National Live Stock Ins. Co., 193 Ill. App. 488-491; Devine v. Rosenbaum Bros., 192 Ill. App. 30-36. It is not a release of any right of action, against the Illinois Central Railroad Company, hut is a covenant not to sue. Chicago & A. R. Co. v. Averill, 224 Ill. 516-521, 522. There were no extraneous facts set up in the plea which would permit of the introduction of evidence as to any intention of the parties different from the language of the instrument.

_><Jiut, if it be conceded that said instrument amounted to a release of the Illinois Central, it would not operate as a release of appellants, for the Illinois Central and appellants were not joint tort-feasors. If appellee had a right of action against the Illinois Central, it was under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, ¶ 321 et seq., for failure to furnish a safe place to work. Appellants, not being common carriers, could not be joined with the Illinois Central in an action based on said act. Appellants could only be liable under the State statute, where a recovery is limited to $10,000, suit for which must be brought within one year. An action under the Federal Employers’ Liability Act may be brought within two years, and the amount recoverable is not limited. Contributory negligence is not a defense, but may be offered in mitigation of damages. Contributory negligence is a defense under the State statute.

“By the enactment of the Federal Employers’ Liability act, Congress has occupied the field covering the employer’s liability for injuries to employees in interstate transportation by rail and has thereby superseded all law of this State' on that subject. (Staley v. Illinois Central Railroad Co., 268 Ill. 356.) ” Brundege v. Chicago. B. & Q. R. Co., 324 Ill. 74-76.

Counsel for appellants contend that, even though the instrument be1 construed as a covenant not to sue, it should have been admitted in evidence in reduction of damages, and cite in support thereof Vandalia R. Co. v. Nordhaus, 161 Ill. App. 110; Garvey v. Chicago Rys. Co., 239 Ill. App. 669; Wagner v. Chicago & A. R. Co., 265 Ill. 245; Gore v. Henrotin, 165 Ill. App. 222; Berry v. Pullman Co., 249 Fed. 816.

An examination of the foregoing cases will disclose that they all involved the effect to be given to a release" of a joint tort-feasor, and are not applicable here.

Under our holding that the instrument entered into between appellee and the Illinois Central Railroad Company, upon the payment to appellee of said sum of $7,500, was not a release, but was a covenant not to sue, and inasmuch as the Illinois Central and appellants were not joint tort-feasors, appellants were not entitled to the benefit of said payment in reduction of the damages that might be assessed against them. City of Chicago v. Babcock, 143 Ill. 358-366; Devaney v. Otis Elevator Co., supra, 38.

In the latter case, suit had been instituted by Devaney against the Otis Elevator Company. Thereafter, by amendment, the Standard Company and one E. T. Harris were joined as defendants. In consideration of $375, Devaney gave the Otis Elevator Company a covenant not to further prosecute suit against that company. The suit thereafter proceeded against the Standard Company and Harris. A trial was had, resulting in a verdict and judgment against the Standard Company and Harris for $2,000. The court, in discussing the question as to whether the Standard Company and Harris were entitled to a reduction of the damages against them in the sum of $375, at page 38 says:

“Plaintiff in error complains that the court erred in giving instruction No. 2 for defendant in error. This instruction, after stating the rule for estimating the damages in case the defendant in error was entitled to recover, proceeds to inform the jury that from the amount of actual damages sustained should be deducted $375 paid by the Otis Elevator Company, provided the jury believe that the Otis Elevator Company was jointly guilty with the plaintiff in error of the negligence that caused the injury; and the jury were also informed that if the Otis Elevator Company was not guilty of negligence which approximately contributed to the injury, the $375 should not be deducted from the actual damages sustained by the defendant in error. This instruction had no proper place in this case and should not have been given. It improperly submits to the jury the issue as to whether the Otis Elevator Company was guilty of negligence in connection with the injury when no such issue was made in the pleadings. The Otis Elevator Company was not a party to this suit, and it was improper to submit the question of its responsibility for the injury to the jury by this instruction. The $375 paid the defendant in error by. the Otis Elevator Company was not paid as part compensation for the injury he received. It was paid for a covenant not to further prosecute the suit against that company. The jury had nothing to do with that question and the instruction should not have been given. The $375 paid by the Otis Elevator Company could not be considered by the jury in part payment of defendant in error’s damages." . . . The rule in regard to joint tort feasors is that each wrongdoer is responsible for the whole amount of damages, and that there is no such thing as apportioning the damages among joint wrongdoers.”

If joint tort-feasors are not entitled to a reduction of damages by reason of an amount paid on a covenant not to sue as to one of the joint tort-feasors, certainly, in a case where a covenant not to sue has been entered into with a party who is not a joint tort-feasor, the amount paid by such party would not be admissible in reduction of damages. The court therefore did not err in sustaining a demurrer to the plea setting up said defense, and in refusing to admit evidence as to such payment.

It is also insisted that the court erred in its rulings on the evidence. Appellants offered testimony to the effect that appellee’s intestate had stated that he slipped from said engine. That testimony was denied by appellee’s witnesses in rebuttal. One of them testified that he was the party who asked appellee’s intestate as to how the injury occurred, and that he stated in effect that the engine struck the dirt and he was thrown from the engine. The court should not have permitted said testimony, over the objection of appellants, as such statement was self-serving. However, the undisputed testimony discloses that, without reference to whether appellee slipped or was thrown from said engine, his injury occurred by reason of his being caught between said frozen dirt and the foot-board of said engine. The error in admitting said testimony would not warrant a reversal of said judgment.

It is also insisted that the evidence discloses that the injury which caused the death of appellee’s intestate was the moving of said engine, and that therefore ■the Illinois Central.was responsible for his death.

The record discloses that the parties who found appellee’s intestate had endeavored to extricate him by trying to pry up said, footboard, etc., but were unable to do so. Either by signal or on motion of the engineer himself, the engine was moved some 5 or 6 feet forward, and appellee’s intestate was extricated. In view of the imperiled situation in which appellee’s intestate was found, and the evident purpose of all concerned to assist him, it cannot be rightfully said that the moving of said engine was the negligent cause of his injury and death, especially in view of the fact that the wedging of appellee’s intestate under said footboard was occasioned by the dirt in question, placed there by authority of appellants. See Kelly v. Chicago, R. I. & P. R. Co., 175 Ill. App. 196-203.

It is also insisted that the court erred in admitting the photographs offered in evidence by appellee, on the ground that the preliminary proof was not sufficient to show that the conditions were the same when the photographs were taken as at the time of said injury. Without going into a detailed discussion of the evidence in this connection, we are of the opinion that the court did not err in admitting said photographs. Stevens v. Illinois Cent. R. Co., 306 Ill. 370-375, 376; Lake Erie & W. R. Co. v. Wilson, 189 Ill. 89-96; Moscarelli v. Sheldon, 247 Ill. App. 352-355.

While other errors were assigned on the record, they were not argued, and are therefore taken as waived.

For the reasons above set forth, the judgment of the trial court will be affirmed.

Judgment affirmed.


author: Mr. Justice Boggs delivered

text:
    Theron Adair et al., Appellees, v. First National Bank of Belvidere, Illinois, Appellant.
    Gen. No. 7,956.

      Opinion filed May 14, 1929.
    Rehearing denied June 18, 1929.
    C. B. Chapman and Frank B. Covet, for appellant.
    Woodward, Hibbs & Pool, John Dubbs and Butters & Butters, for appellees.
   Mr. Justice Boggs delivered

the opinion of the court.

On July 20, 1918, a bill was filed by appellees in the circuit court of LaSalle county, setting forth that on August 15, 1917, appellant obtained a judgment by confession against appellees, one A. F. Kember, A. O. Kellogg and W. C. Vittum, for $13,967.65; that .the promissory notes on which said judgments were taken, other than as to W. C. Vittum, were without any good or valuable consideration; that in the years 1913 and 1914 there was under contemplation the building of an electric railroad from Ottawa to Mendota; that a large number of farmers had contributed large sums of money in furthering said project; that W. C. Vittum, one of the signers of said promissory notes, had assumed the authority to manage the affairs of said corporation and the raising of funds for the construction of the road, being assisted by Fred Abraham, a lawyer of Chicago, who had been an officer and director in the corporation until 1914; that Vittum was also assisted by appellees Hackman and Butterfield; that on January 7, 1914, Vittum and the defendants in said judgment met, at the instance of Vittum, in the home of Charles Battles; that at said meeting Vittum “stated that if promissory notes aggregating $25,500 could be procured to be executed by substantial farmers interested in the completion of the road, that such notes, or any money obtained on them, in the event that they would be negotiated, would be held secure until the ultimate completion of the road; that if the road should not be assured to be completed within a fixed time, the notes or the money obtained therefrom would be refunded”; that Vittum stated he had learned of a reliable contracting firm who would enter into a building contract to complete the road and guarantee the performance of the contract by a good bond in the sum of $50,000, and would take the bonds issued by the railroad company in payment for the labor and materials for its construction, provided he should deposit notes for the sum of $25,500, or cash, to be held as security as an evidence of good faith, until the road should be completed. That, if it' should be necessary to use money instead of the notes, he would obtain some person who would furnish the amount of money represented by the notes, and that the same would be deposited and held secure as a guaranty to the contractor who might be procured to construct the road, or to the person who might underwrite said bonds. That the complainants and the other of said persons, having implicit confidence in Yittum, signed' five blank forms of promissory notes, dated January 7,1914, four being for $5,000 each and one for $5,500, each of said notes falling due October 1,1914 with interest at 6 per cent; that after the papers were signed, Yittum took possession thereof, and it was charged, on information and belief, that Yittum, Abraham, one Patten and one Marshall, knowing all the facts above stated, on April 15, 1914, “wrongfully and fraudulently agreed among themselves that Marshall would write in the name of appellant bank as payee; that Marshall would deposit the notes in the bank, and would draw on them a certain amount of money for Abraham and Yittum; that when the notes were collected of the makers, the bank and Patten would be entitled to the full amount, after paying into the bank the amount advanced Patten and Abraham. ’ ’

Said bill further charged that Marshall caused the name of appellant bank to be inserted as payee in said notes, and that he, as president of said bank, “knew all of the facts connected with the papers, and how and for what purpose they were signed and to be used; that thereafter, on October 1,1914, the makers of said notes were importuned by Yittum to renew the same, and that Yittum then fraudulently represented to them and the other defendants, that said bank had purchased said notes for the full amount, principal and interest, and that he had deposited the money received from the hank with a certain surety company of New York as evidence of good faith for its underwriting the bonds of said company, which were to be taken by the contractor, who had then entered into a binding agreement to fully equip the road within a certain fixed time, and which contractor had already furnished a good and sufficient bond in the sum of $50,000 to the railroad company to insure the faithful performance of the contract.” That Yittum pretended to represent and take care of the interests of the complainants and the other signers of said paper, but was in fact conniving with the bank and its officers and representatives, in attempting to fix a liability upon the complainants and those who signed the papers, so that they could be compelled to pay the notes to the bank, notwithstanding the bank was not an innocent holder for value.

Said bill further charged that the ‘1 representatives of the bank at all times had full knowledge of all the facts above alleged; that it divided with Yittum, Abraham and Patten, who was also acting for the bank, the proceeds of said notes, and entered into the transaction for the sole object and purpose of obtaining an undue advantage of the responsible and solvent signers of the notes; . . . that Yittum was then and there and is now insolvent; that on October 1, 1914, by reason and because of the false and fraudulent representations of Yittum, which were fully known to the bank by its authorized representative, the complainants and the solvent defendants to the judgment were induced to sign new notes directly to said bank, three of said notes being entered in judgment in said action at law.” That none of the money realized on said notes has ever been used, directly or indirectly, for the completion of said road, and that no work has been done thereon; that no part of the representations made by Vittum have been carried out; that said judgment was opened up on motion of the complainants and other of the makers thereof, and they were given leave to plead; that thereupon appellant bank moved the court to vacate the judgment and dismiss the suit, which said motion is pending.

The bill further charges that it is the intention of said bank to dismiss said suit, if said motion is granted, and to take judgment by confession in some remote quarter of the state ‘ ‘ and thereby, and by other vacations of future judgments and dismissal of future suits, so harass and embarrass them and others that, in sheer desperation, they will be forced to pay”; that said notes are, in legal contemplation, the property of the complainants and the others signing them, for the reason that if said railroad was not completed within a certain time, they were to be returned to the signers, “and were to be returned to the signers in any event after the completion of the road.” '

Appellant bank, W. O. Vittum and J. L. Witzeman were made parties defendant. Said bill prayed that said notes be declared null and void, and that appellant and the other of said defendants be required to surrender them up to be canceled; that appellant and the other of said defendants be enjoined from disposing, assigning or otherwise disposing of any of said notes, or of entering or attempting to enter judgment in any other court than the one in which they were then pending.

A temporary injunction was granted as prayed. Appellant bank answered, admitting the talcing of judgment on said notes, but denying any and all charges of fraud or misrepresentation on the part of appellant bank and its officers, and denying any knowledge or information touching fraud or misrepresentation on the part of Vittum or any other person in connection with the execution, negotiation and sale of said notes. Said answer alleges that the purchase by said bank of said notes was a bona fide transaction, before maturity, for a valuable consideration and denies that the complainants are entitled to the relief prayed, etc.

The bill was amended, by leave of court, charging that Vittum stated that the notes must aggregate $25,500, that ten persons would sign them, and that in case ten persons did not sign them, the whole scheme would become inoperative, and that he represented that William Conger and Pat "Woods would sign. Certain other amendments were made to said bill with reference to the execution of the instrument purporting to authorize the officers of appellant bank to fill in the name of said bank as payee in said notes, etc.

The cause was referred to the master to take the evidence and to report the same to the court. Said evidence was so taken and reported.

The court found the facts to be substantially as alleged in appellees’ bill as amended and “ordered, adjudged and decreed that the notes and the judgment entered thereon in this Court be and are held null and void, and that the collection of the notes and judgment from the complainants or any of them should be and the same is hereby enjoined, and the complainants and each of them are freed from any liability thereon.”

To reverse said decree, this appeal is prosecuted. The questions arising on this record, under the assignment of errors, may be summarized as follows:

First. Whether the name of the payee in the original notes was inserted by the officers of appellant bank without lawful authority.

Second. Whether said original notes were not to become operative unless signed by ten persons.

Third. Whether the failure of Louis Willey to sign said renewal notes here involved would work a discharge of those signing the same.

Fourth. Whether in the purchase of said original notes and in the taking of said renewals, appellant bank and its officers were guilty of fraud and misrepresentation.

First. The evidence discloses that when said original notes were signed, the name of the payee whs left blank for the sole reason that the makers thereof did not know where they would be able to negotiate the same. Under the Negotiable Instruments Act, the bank, having purchased said notes for valuable consideration, had authority to fill in its name as payee. Cahill’s St. ch. 98, ¶ 34; Young v. Ward, 21 Ill. 223-225; Weston v. Myers, 33 Ill. 424-432; Merritt v. Boyden, 191 Ill. 136-146; Kramer v. Schnitzer, 268 Ill. 603-606; Leseure v. Weaver, 99 Ill. App. 375-380. The mere fact that appellant bank, out of abundant precaution, may have taken a written instrument in reference thereto, did not take away the authority which the law gave the bank to fill in said blank.

Second. An examination of the testimony offered on behalf of appellees discloses that there was no definite agreement among the makers of said original notes that ten persons should sign the same before they were negotiated. Appellee Butterfield testified: “I think it was decided that eight or nine would go on to raise the amount of money on those notes.”

Appellee Hackman testified that Vittum stated, after the notes were signed, that “he thought he could get a couple more signers. . . . Something was said about ten signers, but I can’t remember what it was, but after eight had signed he said he thougtit he could get two more. Among us, we thought there would be eight or ten who would sign.”

Appellee Luce testified: “We had agreed among ourselves how many would sign, but McLaughlin and Battles were asked to sign, but they would not. Vittum said Conger had said he would sign them. Kellogg had said he would sign them, and afterwards did so, but Conger did not.”

Appellees’ contention in this behalf is not well taken.

It might be further observed, in reference to both the first and second propositions, that the notes which were executed in blank, and which appellees contend were to be signed by ten people, are not the notes here involved. The notes here involved are renewal notes in which the name of the bank was written in in the first instance, and which were not signed by as many as had signed the original notes.

Third. Louis Willey, one of the signers to the original notes, was in Canada at the time the renewal notes were executed. It is contended by appellees that when appellant accepted said renewal notes without the- signature of Willey, it amounted to a release as to him, and that the signers of said renewal notes were thereby discharged.

The evidence fails to disclose that appellant bank had any connection with the signing of said renewal notes. The evidence does show that when it accepted said renewal notes without the name of Willey, the accrued interest and $2,000 on the principal was paid. In this connection, appellee Adair testified: “The 2nd day of October . . . Mr. Vittum and Mr. McDougall were there. Mr. McDougall told us it was a perfectly legitimate transaction, and that we must take care of the notes. ... New notes were prepared that day, payable to the First National Bank of Belvidere. I don’t think I looked at them, and I signed them, five or six.” On cross-examination he testified: “I think Mr. McDougall was representing the First National Bank of Belvidere, and at that time all of us talked over the matter of adjusting the notes we had previously given, and then the new notes were given.”

Appellee Luce testified in this connection: “On that day the interest was paid and $2,000.00 on the principal, and then the renewal notes were given.”

Appellee Hackman testified that the original notes were turned over to him, and that he had them. Willey testified on behalf of appellees that appellee Hackman and Yittum asked him to sign said renewal notes, and that he refused to do so.

The signers of said renewal notes, of their own motion, made payment of $2,000 on the principal of said indebtedness, together with the interest thereon, and delivered to appellant bank said renewal notes, without the name of Willey, and took up the original notes.

The giving of a renewal note is prima facie payment of the original debt. Trego v. Cunningham’s Estate, 267 Ill. 367-375, citing Smalley v. Edey, 19 Ill. 207; Leake v. Brown, 43 Ill. 372. Whether the giving of a promissory note in renewal of another operates as a satisfaction of the original note is a question of fact, and depends on the intention of the parties. Boulter v. Joliet Nat. Bank, 295 Ill. 594-596; Belleville Sav. Bank v. Bornman, 124 Ill. 200, 206, 207; Jansen v. Grimshaw, 125 Ill. 468-476. The facts and circumstances surrounding said transaction disclose that said payment was made and said renewal notes were delivered in settlement and discharge of the original notes.

Fourth. Where the prayer for relief is based on a charge of fraud and misrepresentation, the proof in support thereof must be clear and convincing. Mosbarger v. Brown, 313 Ill. 238-248; Carter v. Carter, 283 Ill. 324-332; McKennan v. Mickelberry, 242 Ill. 117-134; Schroeder v. Walsh, 120 Ill. 403-409.

In this connection, appellee Luce testified: “About the 15th or 16th of April, Butterfield came to me and said' Hackman had been up to Belvidere, and he thought the bank there would finance the notes, and said Hackman had requested him to come up and ‘for God’s sake bring Miss Luce.’ . . . We went to Belvidere to see if we could induce the bank to take them (the notes). We went there to see if they would not cash them. I and the parties who went there asked Marshall if he would not cash them. . . . Before Marshall would take the notes, he asked me if I understood the nature of the joint note.”

Appellee Hackman testified: “At the meeting in the directors’ room, Butterfield said the notes were issued to pay an advance for building the road, to interest the contractor, and we had to have $25,500 to get them interested. . . . After they considered the matter (the officials of the bank) Marshall finally said, ‘We will furnish the money,’ and he wanted to know who it would be paid to and it was said ‘To Mr. Vittum.’ ”

Appellee Butterfield testified: “It was finally decided that we would make arrangements to cash the notes. Marshall wanted to know if we knew what we were getting into.” On cross-examination he testified: “Miss Luce and I went up and met Hackman there, and the three of us asked the bank to take the notes. We had a conference with Mr. Marshall, the president, and Mr. Covey, the attorney for the bank, as to the notes and the financial responsibility of the makers, and as to whether or not the bank would take the notes. Mr. Marshall asked us if we fully understood- what we were doing, and we talked about the issuing of the bonds for the purpose of completing the construction of the road, and Marshall told us that if the bank took the notes, that it would not rely upon the bonds which were issued paying the notes, but that the note's had to be paid anyway, even if paid by the makers of the notes. ’ ’

The foregoing, in substance, is the testimony of appellees with reference to the attitude of appellant bank in connection with the purchase of said notes; Instead of showing fraud and misrepresentation on the part of appellant bank and its officers, it discloses that said transaction was bona fide, and upon a valuable consideration.

It is strenuously contended on the part of counsel for appellees that, because appellant paid only $18,500 in cash and delivered to Patten bonds aggregating $7,000, this, in and of itself, constituted a fraud on the makers of said notes.

There was no agreement between appellant bank and the makers of said notes that, in the purchase of the same, it was to pay the face value thereof in cash. So far as said bonds were concerned, appellant bank paid $6,700 for the same. Before purchasing the same, Marshall, the president of said bank, made investigation and found that the issue, aggregating $60,000, was secured by property appraised at $165,000. While the evidence discloses that the holders of said bonds finally had to take less than their face value, there is nothing to show that, at the time the same were delivered to Patten, they were not worth their face. But, even if it did so show, it would not render said transaction fraudulent.

Without reference, however, to what transpired at the time said original notes were sold to appellant bank, the notes here involved were given by appellees and the other makers thereof, voluntarily, with $2,000 in cash, in settlement for the original notes. Under the above authorities, this amounted to a payment thereof.

Under any view of the evidence, the court erred in finding that said notes were null and void in the hands of appellant, either for want of consideration or on account of fraud and misrepresentation.

For the reasons above set forth, the judgment and decree of the trial court will be reversed and the cause will be remanded with directions to dismiss said bill for want of equity.

jReversed and remanded with directions.