text:
    Margaret Micca, Administratrix of the Estate of Peter Micca, Jr., Deceased, Appellant, v. The Alton Railroad Company, Appellee.
    Gen. No. 8,951.

      Opinion filed July 6, 1935.
    Fort & Fort, of Minonk, for appellant.
    Miller, Elliott & Westervelt, of Peoria, for appellee ; O. P. Westervelt and Donald G-. Bests, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

This was an action brought by appellant against appellee, under the Injuries Act, Cahill’s St. ch. 70, to recover for the alleged wrongful death of appellant’s intestate. At the close of all of the evidence in the case, defendant filed its motion for an instructed verdict, and the court granted the motion, instructing the jury to find the defendant not guilty. From the giving of said instructed verdict, appellant prosecutes this appeal.

Appellant’s intestate, while driving a motor truck on October 30, 1932, between the hours of seven and eight o’clock in the morning, was struck and killed by one of appellee’s trains at a public crossing out in the country, located upon a public highway situated on the county line between Logan and Tazewell counties.

Appellant offered four witnesses who testified concerning the accident, but none of them was an eyewitness thereto. After appellant had rested and the motion for an instructed verdict was filed by appellee, appellant asked leave of court to introduce evidence of the cautious habits of the deceased. A witness was called by appellee, and examined in the absence of the jury. He was an eyewitness to the accident. He testified in detail regarding the same. The court then denied appellant the right to offer testimony as to habits of the deceased. Evidence of the cautious habits of the deceased is incompetent where there is an eyewitness to the accident. Chicago & A. R. Co. v. Pearson, 184 Ill. 386, 392; Anderson v. Metropolitan West Side Elevated Ry. Co., 170 Ill. App. 210; Quincy Gas & Electric Co. v. Clark, 109 Ill. App: 20; Cox v. Chicago & N. W. Ry. Co., 92 Ill. App. 15; Cleveland, C., C. & St. L. Ry. Co. v. Moss, 89 Ill. App. 1,15 A. L. R. 135.

Three of appellant’s witnesses regarding the' accident lived in a residence about 400 feet from appellee’s track, near the crossing in question. These witnesses heard the whistle of the engine, something near a half mile from the crossing. Appellant’s fourth witness regarding the accident was driving a truck going in the same direction as the deceased about a half a mile behind the truck being -driven by the deceased. He did not see the accident but arrived there shortly after-wards. He states that he heard the whistle of the train, and that he could see a portion of the train as it was proceeding along the track toward the crossing-.

The most serious defect in appellant’s case is the lack of evidence tending to show any negligence on the part of the appellee railroad company. There is also a total lack of evidence tending to show due care on the part of the deceased at the time of the accident. Under such circumstances the trial court was justified in directing a verdict as was done herein. Whitesides v. Springfield Colliery Co., 138 Ill. App. 79; Wilson v. Railway Steel Spring Co., 165 Ill. App. 344; Sary v. Peoria & Pekin Union Ry. Co., 248 Ill. App. 417 (certiorari denied in this case).

The judgment of the trial court is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Huppman

license: Public Domain

text:
    Chicago Title and Trust Company and Kenneth Blackman Cannon, Appellees, v. Lelah F. Morey, Appellant.
    Gen. No. 8,957.

      Opinion filed July 6, 1935.
    John T. Richards and Irving B. Campbell, both of Chicago, for appellant.
    Robert Gf. Barley and Robert L. Kemler, of Chicago, for appellees.
   Mr. Justice Huppman

delivered the opinion of the court.

Appellees, as trustees under the last will- and testament of Francis Homer Blackman, deceased, filed their bill on August 3, 1934, in the circuit court of Kane county, for the construction of the will of said deceased. The testator executed his will on Oct. 27,1930. He died on Nov. 8th, following. He was about 85 years of age. Appellee, Kenneth Blackman Cannon, was his only heir at law. The testator was the owner of considerable stocks and bonds, which yielded him a comfortable annual income. Among his holdings •were 2,231 shares of preferred stock of the Republic Steel Corporation, upon which the annual dividends amounted to $13,386. The deceased had been a doctor, and appellant, Lelah F. Morey, had been his housekeeper.

The testator provided for the payment of his debts and funeral expenses. He next devised and bequeathed to his grandson, Kenneth Blackman Cannon, certain of his household and personal effects. The remainder of his entire estate, he devised and bequeathed to appellees, as trustees. He provided that said trustees should have full power to manage and control the corpus of the trust, sell any part thereof at such time as they deemed best, and to invest and reinvest the principal and the proceeds of the trust as and when they chose. He further provided that the trustees should receive and collect dividends and income arising from the trust until the final termination thereof. In substance, the trustees were given unlimited power and discretion as to the management of the trust, the same as the testator might do, if living. The testator next provided that the trustees should pay the costs, expenses, taxes and assessments chargeable against the estate, and that from the income from the trust estate, they should pay themselves reasonable compensation for their services as trustees.

The testator next made three provisions with regard to a gift of income. He first provided for the payment of $400 per month to his grandson, Kenneth Blackman Cannon, until he should reach the age of 40 years. He next provided for the payment of $100 per month to his brother, Gilbert Taylor Blackman, of South Dakota. He next provided for the payment of $100 per month to the appellant herein, Lelah F. Morey, who had been his “faithful housekeeper.”

The time came, shortly before the filing of this bill, when the income from the trust estate was insufficient to make the above payments. The appellant demanded that the trustees should pay her $100 per month regardless of the income from the trust estate, and in case of its insufficiency, that such amount each month be paid her from the corpus of said estate. Whereupon, appellees brought this suit asking that the court construe the will with reference to whether the above named sums were to be charged upon the corpus of the estate, or charged to the income therefrom. The further question was presented, whether the monthly payments were cumulative and chargeable against subsequent income of the estate. The trial court decreed that the payments were not charges upon the corpus of the estate, and were to be paid solely from income therefrom. He further decreed that any arrears in such monthly payments were to be cumulative and paid from the income of said trust estate as soon as such income became sufficient. Lelah F. Morey prosecutes this appeal from the decree of the court. Kenneth Blackman Cannon prosecutes his cross appeal, urging that that portion of the decree is erroneous which provides that arrearages in monthly payments are cumulative, and payable out of subsequent income. Appellant filed in this court her motion to dismiss such cross appeal, which motion was taken with the case, and for the purposes of this opinion, is denied.

As stated in the case of Halderman v. Halderman, 342 Ill. 550, at page 553, “It has been so many times stated as to require no citation of authority, that the cardinal purpose in the construction of a will is to determine the intention of the testator. In this the court is conferring no right and limits no privilege. . . . The intention of the testator is not what a testator by a perfectly drawn will might have intended, but what did this testator in this will intend. ... In the construction of a- will, courts are expected to, and do, endeavor to find what the testator intended.” In the disposition of this case, we shall first give our consideration to the source from which the testator intended the monthly payments to be made. These payments totaled the sum of $600. Paragraph “F” of the will, which is the next expression of the testator immediately following the granting of these payments, is as follows: “The excess, if any, over the sum of Six Hundred Dollars ($600.00), per month of the income of my said trust estate and after all expenses of this trust shall have been paid, shall form a contingent fund, and may, if deemed proper by my said Trustees, be used for the benefit of said Kenneth Blackman Cannon or the same may be added to the principal of said trust estate in the discretion of my said Trustees.” There is no other place in the will where any money is bequeathed or directed paid to anyone, except in the three paragraphs immediately preceding said paragraph “F.”

It will be noted that the testator immediately after providing for the three monthly payments to the three persons named, begins the next paragraph of his will (paragraph “F”) with the words, “The excess, if any, over the sum of Six Hundred Dollars ($600.00) per month of the income of my said trust estate. . . . ” No other reasonable conclusion can be reached than that the testator in mentioning the sum of $600 had in mind the three monthly payments provided for in the will. The testator after providing that “the éxcess, if any, over the sum of Six Hundred Dollars ($600.00) per month,” uses the following words: “Of the income of my said trust estate. ...” We are of the opinion that no other reasonable conclusion can be reached than that the testator meant that such sum of $600 per month was to be derived from the income of his trust estate.. He also provided that the trustees should sell, invest, and reinvest the funds of the trust together with the excess income therefrom, after making the payments of $600 per month. This would indicate that the testator did not contemplate that these payments should be a charge upon the corpus of the estate.

The question frequently arises as to whether a provision in a will shall be construed as a gift of income dependent on the production of such income, or construed as an annuity. The intention of the testator as manifested by the terms of his will, must control in this respect. Annuities may be made a charge upon the corpus of the estate or they may be a charge to the income therefrom. Alexander, Commentaries on Wills, vol. 2, p. 994, sec. 665; Page on Wills, sec. 607, p. 703. An annuity payable out of income from an estate cannot be paid from the principal thereof. Einbecker v. Einbecker, 162 Ill. 267. In this case the annuity was payable “out of the moneys so arising from the estate.” The court there construed this to mean from the income of the estate. We are of the opinion that it is equally manifest from the terms of the will in the instant case that the monthly payments as therein provided for were intended by the testator to be payable out of the income from the estate. His estate was producing an income equal to two or three times the amount of the payments provided for. With these facts in mind, he made provision for disposition of the excess over $600 a month of the income therefrom. It is often difficult to determine whether an annuity is to be paid from the corpus of an estate or only from the income thereof. As stated in the case of Einbecker v. Einbecker, supra, on page 273 of the opinion, “Bach case will depend largely upon the meaning of the words used by the testator in his will.” As above stated, the question becomes one to be decided upon the language used by the testator. We think it apparent, from an examination of the testator’s will as a whole, that he did not anticipate that the income of his estate would be insufficient to yield the amount of the monthly allowances. We are of the further opinion that it was the intention of the testator, manifested from his will, that such allowances were to be paid out of the income from the estate, and were not intended to be charges upon the principal thereof.

It is insisted by appellant that since the testator provided that at the conclusion of the trust, the rest, residue, and remainder of same should be paid to his grandson, Kenneth Blackman Cannon, or in case of his previous demise, to his heirs at law or devisees, that such indicated an intention on the part of the testator that the trust fund was to be contingent and not continued in its integrity during the time fixed, and that this should give rise to a construction that the corpus thereof could be used for making the payments, when the income was insufficient. We are not of the opinion that the testator had any contingency of this nature in mind, nor are we of the opinion that the instrument as a whole is susceptible to such a construction. The testator had lived many years. He was a country doctor. By years of endeavor and fortunate investments, he had built up a very respectable estate. It consisted of marketable securities such as stocks and bonds. It must be presumed that he was aware of the fact that the market values of such securities were subject to constant fluctuation, and that the' basic values changed from time to time, depending upon business conditions existing in that particular field of industry. Realizing this, he provided by his will that his trustees should have the power to handle the trust estate as fully and completely as he might do himself. We áre of the opinion that the contingency the testator had in mind in referring to the time of the termination of the trust was that whatever remained of the corpus of the trust as it originally existed, together with all of the new, changed, and added assets, whether the total value was more or less than in the beginning, should go to his grandson. The testator must have understood the hazards and risks incident to the management of a trust fund such as this. He therefore gave his trustees full power to take whatever action they thought best, to increase the value of the trust, or to protect and save it from loss, by liquidating the entire trust or any part thereof, at any time. We believe that any contingency connected with the disposition of the trust upon the day of its termination, was based upon changes in the nature of the trust assets, and the ever changing market values thereof, anticipated by the testator, and over which he knew the trustees had no control.

Where a will contains directions that an annuity or . gift of income shall be paid out of the profits and income of a trust estate, the corpus of the estate cannot be charged therewith unless a contrary intention appears in the will. Irwin v. Wollpert, 128 Ill. 527; Einbecker v. Einbecker, supra; DeHaven v. Sherman, 131 Ill. 115.

When the income from a trust estate is insufficient to pay an annuity payable therefrom, any arrearages so occurring are charges upon subsequent accumulations of income, unless the will expresses a plain intent to the contrary; and such surplus income will be paid to the annuitant upon satisfaction of the previous deficiencies. Alexander, Commentaries on Wills, vol. 2, sec. 665, p. 995; Reed’s Estate, 236 Pa. St. 572; In re Chauncey, 119 N. Y. 77, 23 N. E. 448, 7 L. R. A. 361; In re Hardy, 86 N. J. Eq. 405, L. R. A. 1917 E 578 (see annotations thereto, pp. 583, 595).

-We are of the opinion that the trial court was correct in its construction placed upon this will in regard to the foregoing matters. The decree of the trial court is therefore affirmed.

Decree affirmed.


author: Mr. Presiding Justice Edwards

text:
    The People of the State of Illinois for the use of Joseph Lamb, Appellee, v. Albert W. Betzold, Appellant.
    Opinion filed June 8, 1935.
    Rehearing denied September 5, 1935.

      J. F. Beck, of Bdwardsville, for appellant.
    Terry, Gueltig & Powell, of Bdwardsville, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

On March 18, 1928, appellant, with five other sureties, signed the official bond of Ben Wood as public administrator of Madison county, in the penal sum of $50,000. The bond provided, among other conditions, that such administrator should well and truly administer, according to law, all estates committed to his charge, “and all the rest of the said goods and chattels, rights and credits, which shall be found remaining upon the accounts of the said Public Administrator, the same being first examined and allowed by the Probate Court, shall deliver and pay unto such person or persons, respectively, as may be legally entitled thereto.”

On July 7, 1934, appellee filed a complaint against appellant, alleging that the said public administrator was appointed to administer the estate of Joseph Lamb Sr., deceased; that the estate was duly settled, and appellee found by the probate court to be the only heir of the deceased, and entitled to the final assets of said estate, aggregating $997.28, in the hands of such public administrator, who was ordered to pay same to appellee; but that the said public administrator failed so to pay, and as a consequence suit was brought against appellant as a surety upon the administrator’s official bond.

Appellee subsequently, by leave of court, amended the process and complaint, to make the action brought by the People of the State of Illinois, for the use of Joseph Lamb. Later, motion was filed by appellant to dismiss the action upon the general ground that the bond in question was for the benefit of the public, and that an individual might not maintain a private suit thereon. This, after argument, the court overruled; appellant stood by his motion, and judgment was rendered in favor of the People of the State of Illinois, for the use of Joseph Lamb, and against appellant, in the sum of $997.28, and costs, to which appellant excepted, and from which this appeal has been perfected.

Two principal reasons for reversal are assigned. First, that appellee, as an individual, could not bring his private suit upon the official bond of the public administrator; and second, that the action being one of debt, judgment should have been for the amount of the penalty of the bond, to be satisfied upon payment of the amount of damages assessed.

As to the first contention, it appears that par. 26, Cahill’s St. ch. 3, enacts that “all bonds which may at any time be given by any executor or administrator, either with or without the will annexed, or de bonis non, to collect, or public administrator, may be put in suit and prosecuted against all or any one or more of the obligors named therein, in the name of the People of the State of Illinois, for the use of any person who may have been injured by reason of the neglect or improper conduct of any such executor or administrator. ’ ’ Par. 48 of said chapter 3 obligates the county court to require of the public administrator, before entering upon the duties of his office, a bond payable to the People of the State of Illinois, in a sum not less than $5,000, with sureties to be approved by the court and conditioned for the faithful discharge of all the duties of his office, and that the court may also require him to give the usual bond of administrators in other cases, touching any particular estate in his charge.

Appellant urges that said par. 48 is the only one which provides for a bond by the public administrator, which can be reached by an individual for a private grievance, and that the bond required by section 26 is only for the benefit and protection of the public.

Considering together the two sections, we think it clear that the legislature intended that the bond provided for in par. 26 should cover all defalcations of the public administrator, both those affecting the public, as well as those pertaining to persons; as seems evident from the provision, “may be put in suit . . . for the use of any person who may have been injured by reason of the neglect or improper conduct of any such executor or administrator.” This clause seems to effectually exclude the notion that only the public could sue upon the bond.

The power of the court, granted by par. 48, to require, in addition to his official bond, the ordinary security of an administrator, respecting any estate committed to his charge, was designed, in our opinion, to cover cases where the personal assets of such estate were of a greater value than would be secured by the penal sum of the official bond, and was an additional protection to interested parties; supplementary to that of par. 26, but not an abridgment of the latter section.

In 24 Corpus Juris, p. 1206, sec. 2890, it is stated: “As a general rule the official bond of a public administrator covers estates committed to his care, and he is not required to give further security, although the court may exact it when deemed necessary.”

We are satisfied that appellee, as an individual, was entitled to bring action upon the public administrator’s bond, for a defalcation of such official which resulted to his damage, and that the court properly overruled the motion to dismiss.

As to the claim of appellant that the judgment should have been for the amount of penalty of the bond, to be discharged upon payment of the damages assessed for the breach alleged and proven, appellee replies that the objection is technical, and that app ellant having failed to specifically raise the point in the trial court, is precluded by such failure.

We think the matter is controlled by section 53 of the Civil Practice Act, Cahill’s St. ch. 110, if 181: “In an action on a penal bond the plaintiff may allege as many breaches as he may think fit, and damages shall be assessed for such of the breaches as are proved, and the judgment for the penalty shall stand as security for such other breaches as may thereafter happen, and the plaintiff may at any time thereafter, by motion, upon 10 days’ notice, have the said cause placed on the docket for assessment of damages for such subsequent breaches as are set forth in such motion; and an order shall be made after each assessment of damages for an execution on said judgment for the amount of damages so assessed until the full amount of such judgment shall be paid.”

It seems apparent that such section contemplated that in an action upon a penal bond, the judgment should be for the penalty, which should stand as security not only for the damages assessed in the current action, but as well for such as might be subsequently adjudged for other breaches as they might thereafter occur. It was competent for the legislature to so provide, and having done so, we are of the opinion that the only judgment which could properly be entered in the instant cause was for the amount of the penalty reserved in the bond, to be discharged according to the terms of said section 53. The judgment being for the damages assessed, and not for the penalty of the bond, did not conform to the statute, and in our opinion was improper.

In section 92 of the Civil Practice Act, Cahill’s St. ch. 110, if 220, which enumerates the powers of a reviewing court, it is provided among other things: “In all appeals the reviewing court may, in its discretion, and on such terms as it deems just, . . . give any judgment, and make any order which ought to have been given or made, and make such other and further orders and grant such relief, including a remandment, a partial reversal, the order of a partial new trial, the entry of a remittitur, or the issuance of execution, as the case may require.”

No question has been raised as to the correctness of the court’s order, finding a breach of the public administrator’s bond, nor as to the amount of the damages assessed therefor; hence, by virtue of the authority conferred upon this court by said section 92, judgment is hereby given for appellee, and against appellant, for the amount of the penalty of the public administrator’s bond, or the sum of $50,000, as a debt, to be discharged pro tanto, to the extent the claim of appellee has been alleged and proven herein, upon payment by appellant of the damages assessed in the sum of $997.28, together with costs of suit. It is further ordered that appellee have execution herein for the amount of such damages and costs.

Judgment here for appellee.


author: Mb. Presiding Justice Edwards

text:
    Frank Fornoff, Appellant, v. Jacob T. Smith, Appellee.

      Opinion filed June 8, 1935.
    Rehearing denied September 5, 1935.
    Frank Fornoff, of Mt. Carmel, pro se.

    M. J. White, of Mt. Carmel, for appellee.
   Mb. Presiding Justice Edwards

delivered the opinion of the court.

On January 5, 1934, in the circuit court of Wabash county, after protracted litigation, C. C. McMahel ob-' tained a judgment against Jacob T. Smith, appellee, in the sum of $1,333.33, and on the same day agreed with Frank Fornoff, appellant, who was then and had been his attorney in the litigation, that the latter should have as his compensation therefor the sum of $666.66. An appeal was taken from this judgment, which this court affirmed on September 6, 1934.

At the time of the rendition of such judgment on January 5, 1934, McMahel was indebted to appellee upon a note for $600, dated August 25, 1927, due in six years, with interest at four per cent, no part of which, either principal or interest, had been paid. On August 21,1934, judgment was entered on said note in favor of appellee, and against McMahel in the sum of $827.

On January 13, 1934, Eoy E. Boyles, as administrator of the estate of Charles L. Boyles, deceased, procured a judgment in the same court against Mc-Mahel for $1,208.52, execution issued thereon, returned no property found, and on January 28, 1934, Boyles, as such administrator, instituted garnishment proceedings against appellee, as judgment debtor of McMahel.

On May 17, 1934, appellant served upon appellee a written notice of attorney’s lien as McMahel’s attorney in procuring the $1,333.33 judgment, and thereafter started suit against appellee to enforce the attorney’s lien. The latter answered that McMahel was indebted to.him upon the note, and claimed a credit therefor of $752.66; also filed as counterclaims the judgment entered upon such note, and the garnishee proceedings instituted before the service of the notice for the attorney’s lien.

By agreement of the parties, the two causes were consolidated and submitted jointly to the court, who dismissed the complaint of appellant and gave judgment to Boyles, the garnishor, in the amount of $580.67, being the difference between the judgment of McMahel against appellee, in the sum of $1,333.33, and the amount due from McMahel to appellee at the date of January 5, 1934, or $752.66. From these orders appellant, Frank Fornoff, alone appeals, assigning numerous reasons why they should be reversed.

Appellee invokes the general rule that he, as garnishee, was only liable to McMahel, his judgment creditor, for the balance remaining after deducting all demands which he had against McMahel at the time such judgment was entered; and such is the law of Illinois. Cahill’s St. ch. 62, ¶ 13. Finch v. Alexander County Nat. Bank, 65 Ill. App. 337; Bank of Commerce v. Franklin, 90 Ill. App. 91.

Appellant seeks to avoid the force of the rule by applying pars. 59 and 60, and the 5th paragraph of par. 61, Cahill’s St. ch. 77. Said pars. 59 and 60 provide for the set-off, between the same parties, of executions which have been issued against each other, while paragraph 5 prohibits such application “to so much of the first execution as is due-to the attorney in that suit for his fees and disbursements therein.”

Appellant’s claim is grounded entirely upon the attorney’s lien which he contends was perfected by serving notice of the claim for lien May 17, 1934, as evidenced by the allegations of the complaint “that by reason of entering into the said contract for rendering the services as an attorney at law, and rendering the said services, and the giving of the said notice of attorney’s lien, the said plaintiff is entitled to an attorney’s lien on the said judgment heretofore entered in the said cause, in the sum of $666.66, and to recover the said sum from the defendant Jacob T. Smith.” Having assigned such as the basis of his cause of action, he is bound by and limited, in right of recovery, to the ground pleaded.

It is a fundamental rule, with no exceptions, that a party must recover, if at all, on and according to the case he has made for himself by his pleadings. He cannot make one case by his averments, and have judgment on another and different ground, even though the latter is established by the proof. Feder v. Midland Casualty Co., 316 Ill. 552; Moss v. Johnson, 22 Ill. 633; Lake St. Elevated R. Co. v. Shaw, 203 Ill. 39.

Appellant moved to strike the counterclaims, which motion was overruled. He did not, by reply to the answer, seek to avoid the force of the defense therein pleaded, that McMahel was indebted to appellee, at the time the $1,333.33 judgment was entered, in a sum in excess of the amount for which appellant claimed a lien. He did not, by reply thereto, assert the provisions of said paragraph 5 of par. 61, as a relief against the defense thus pleaded, but relied solely upon the allegations of his complaint; that is, that his rights were predicated entirely upon the statutory attorney’s lien, which he asserted became consummate by serving appellee, on May 17, 1934, with notice of the claim for lien. Having chosen to rest his claim upon such allegations, he is bound thereby and limited thereto, and cannot claim the benefit of the terms of said paragraph, as held in the authorities cited.

It is further contended that appellee having placed the $600 note in judgment, it no longer has a legal existence; that it became merged in the judgment, and that all original rights incident to its ownership are extinguished by the greater security of the obligation of the judgment of record.

As we have seen, section 13 of the Garnishment Act, Cahill’s St. ch. 62, 13, provides that the garnishee may set off against the judgment creditor, as well as the judgment debtor, any demands he may have against them or either of them. At the time of service of the garnishee summons, McMahel was indebted to appellee upon the note, $752.66, which the latter was entitled to offset against the judgment of the former. It can make no difference that he thereafter entered the note in judgment; it was the same indebtedness, though in a different form, and related to the same obligation.

Appellant further insists that the garnishment proceeding cannot avail as against his claim for lien; that the long delay of the progress of the same amounted to an abandonment of the proceeding. It must be borne in mind that an appeal was perfected upon the $1,333.33 judgment, which this court did not dispose of until September 6,1934, hence there could not properly have been any termination of the garnishment proceedings until after it had been so decided; nor could the garnishee, appellee herein, have properly made answer to the interrogatories until this court had decided the appeal and he knew whether, in truth, Mc-Mahel had a judgment against him. We think the garnishment suit proceeded with legitimate speed and reasonable celerity.

The claim of appellant for an attorney’s lien did not become perfected, nor the lien consummate, until May 17, 1934, the date when a written notice thereof was served upon appellee. Cahill’s St. ch. 13, If 13. Baker v. Baker, 258 Ill. 418. On January 28, 1934, garnishee summons was served upon appellee, and thereby the rights of Boyles, administrator, the garnishor, became fixed.

The authorities, as we understand them, hold that the service of a writ of garnishment upon a debtor of the principal defendant, creates a right in the debt due him by the garnishee, superior to any lien or privilege subsequently acquired against the debt. Nesbitt v. Dickover, 22 Ill. App. 140; Shaver Wagon & Carriage Co. v. Halsted, 78 Iowa 730, 43 N. W. 623; Rickman v. Rickman, 180 Mich. 224, 146 N. W. 609; Live Stock State Bank v. Hise, 150 Minn. 301, 185 N. W. 498; Nebraska Moline Plow Co. v. Fuehring, 60 Neb. 316, 83 N. W. 69; Roberts v. First Nat. Bank, 8 N. D. 474, 79 N. W. 993; 28 Corpus Juris, p. 256, sec. 353.

In Nesbitt v. Dickover, supra, which is the nearest authority in Illinois that we have been able to find, bearing upon this proposition, the court further held that the service of process in garnishment, of itself, works an appropriation of so much of the debt due the judgment debtor, from the garnishee, as equals the amount of the judgment, together with interest and costs.

By application of the rule as stated in the authorities cited, it appears that the rights of the garnishor were fixed on January 28, 1934, by the service of the garnishee summons; that the attorney’s lien of appellant did not become effective until- May 17, 1934, the date when written notice of the claim for same was served upon appellee, and hence his rights were junior to those of Boyles, administrator.

It is our conclusion, upon the record, that the findings and orders of the trial court are correct.

Affirmed.


text:
    Mark Greer, Appellee, v. Shell Petroleum Corporation, Appellant.

      Opinion filed June 8, 1935.
    Rehearing denied September 5, 1935.
    Thompson, Mitchell, Thompson & Young and R- Forder Buckley, all of St. Louis, and Arthur Roe, ‘ of Vandalia, for appellant.
    Webb & Albert and Matheny & Welker, all of Vandalia, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

In July, 1931, appellant, Shell Petroleum Corporation, awarded to Ross Carson a contract to paint certain storage tanks at its Vandalia plant. Carson associated with himself three workmen named Lipsey, Logsdon and Snyder, and on July 31, while the four were in the act of painting one of the tanks, the scaffold upon which they were working gave way, and they fell to the ground and were severely injured. Appellee, Dr. Mark Greer, was called to treat them, and afterwards brought suit against appellant for the amount of his fee. He recovered a verdict for $1,850, which the court set aside, and upon a retrial of the cause had a jury’s award in the sum of $1,917.50, upon which judgment was entered, and from which appellant appeals.

It appears from the evidence that immediately following the accident, the local agent of appellant caused appellee to be called to attend the injured men. There is some conflict as to whether Bennyhoff, the agent, said to call Dr. Greer, or simply summon a doctor. We think the jury were warranted, from the evidence, in finding that he directed that Dr. Greer be called. When the doctor arrived he caused the men to be removed to his hospital, where he thereafter treated them.

Earl Frank, who was a sort of district agent for appellant, and who had charge of several stations, among them the one at Vandalia, happened upon the scene while appellee was there, and helped load one of the men into the ambulance. Frank stated that he at once called up the head office of appellant at St. Louis and talked with D. A. Marshall, who was in charge of equipment and maintenance, and acquainted him with the facts of the accident; that he was asked by Marshall how the men were; was directed by him to render a written report of the occurrence, and also that if anybody talked to him of the accident, he (Frank) was to keep his mouth shut. He further stated that he rendered his written report to Marshall the next day, giving all the details as he had gotten them from Bennyhoff, including the fact that the men were being cared for by Dr. Mark Greer.

Bennyhoff, as an agent of appellant, owed his principal the duty of fully informing Frank, his immediate superior, of all the details of the accident, including the fact that he had called appellee to take charge of the injured men; and Frank, in turn, was under a like obligation of fully reporting all such facts to Marshall. He testified that he so reported the facts, and the jury, under the authority of Toledo, W. & W. Ry. Co. v. Prince, 50 Ill. 26, had the right therefrom to find that he reported them in full, including the employment of appellee. Other authorities sustaining such proposition are Henry v. Allen, 151 N. Y. 1, 45 N. E. 355; Pringle v. Modern Woodmen of America, 76 Neb. 384, 107 N. W. 756; Bierce v. Bed Bluff Hotel Co., 31 Cal. 160.

Aside from this, however, we think there is further evidence that such employment was reported by Frank. On August 10, 1931, one Nightengale, a claim agent of appellant, was sent by Mr. Cooper, who was in charge of insurance compensation claims in the St. Louis office, to Vandalia to investigate the case and obtain a report from Dr. Greer, — not the surgeon in charge, but Dr. Greer by name. This proves conclusively that the head office knew that Dr. Greer was attending the wounded men, and inasmuch as the only report or communication from Vandalia to the head office, concerning the injured men, as shown by this record, between the date of the accident and the sending of Nightengale, was the report of Frank, it may be reasonably inferred that the latter reported the employment of Dr. Greer by Bennyhoff. We think this fact is fully proven by the evidence.

It further appears that appellee inquired of Frank, as the highest officer of appellant in the Vandalia area, to whom he should look for his pay, and was told by the latter that appellant would compensate him for treating the men; also, appellee testifies that Nightengale told him to take good care of the men and render a report of their condition to appellant, and that pursuant thereto reports were at once prepared and mailed to appellant. Nightengale denies telling appellee to take good care of the men; however, in the light of the surrounding circumstances, we are of opinion that the jury were justified in finding that he in fact made the statement. It is thus evident that appellee treated the injured men, expecting to be paid therefor by appellant.

Appellant takes the position that even if Bennyhoff or Frank, or both of them, hired appellee, their action was unauthorized, and never ratified by appellant.

Whether such employment was afterwards ratified, was a question of fact; Goodell v. Woodruff, 20 Ill. 191; and the jury’s finding, in effect, that there was, will not be disturbed unless contrary to the manifest weight of the evidence. As bearing upon the question, is the circumstance of Nightengale’s visit to Vandalia at the direction of Cooper to investigate the case and obtain a report of the condition of the injured men from appellee. Report, such as here mentioned, means an account resulting from examination, made by request or direction. 54 Corpus Juris, 676.

It is common knowledge that reports of such character are rendered under a sense of duty and because of an existing obligation so to do, and that they are ordinarily asked for, only by those who by reason of superior position, or the relation of employer and employee, have a right to demand that such an account be rendered.

It does not admit of argument that a surgeon in charge of a case will not commonly render a written report of the condition of his patient, except to one who is his superior or his employer, nor, in the usual affairs of men, does one ask a surgeon for such a report unless he be the. doctor’s employer or in some relation where the law warrants such request. Were a mere disinterested stranger to demand such an account, it would be regarded as impertinence.

We cannot ascribe to the higher officers of a large and important business concern such as appellant, a desire or purpose to play so meddlesome a role, and must conclude that when, under the circumstances as shown by the evidence in this case, they sent their claim agent to demand a report from appellee as to the condition of his injured patients, the action was inspired by a sense of responsibility and because they regarded him as in their employ, in the care and treatment of the men.

Without this, it appears that appellee was permitted to minister to these men until they were healed and discharged from further treatment. At no time, from the day of the accident until he discharged the last man, was appellee ever notified by appellant that he was not in its employ, nor that his services were no longer desired. He was allowed to treat the injured, and the agents of appellant called upon him to inquire as to their condition, and told him to take good care of them. The circumstances fully warranted appellee in believing that appellant would recompense him for his services. The officers of the latter, as business men, knew that he would expect to be paid, and that naturally he would look for compensation to the corporation whose agent first called him to the case, and especially where the corporation sent its claim agent to him in order to secure his report as to the condition of the patients.

Under such circumstances the law required that if appellant desired to save itself from being responsible, it should, when it received the report of the accident and was advised that its agent had engaged appellee to treat the men, or within a reasonable time thereafter, have dissented from the action of the agent in employing appellee, and have so informed the latter, instead of permitting him to continue in the employment in the belief that appellant was satisfied therewith. Under such circumstances, silence or failure to disaffirm is sufficient evidence to justify a jury in finding that the employment by the agent was ratified by the principal. Toledo, W. & W. Ry. Co. v. Prince, supra; Indianapolis & St. L. R. Co. v. Morris, 67 Ill. 295; Cairo & St. L. R. Co. v. Mahoney, 82 Ill. 73; Chicago Consolidated Traction Co. v. Mathews, 117 Ill. App. 174; Terre Saute & I. R. Co. v. Stockwell, 118 Ind. 98, 20 N. E. 650; Clews v. Jamieson, 182 U. S. 461; Argus v. Ware & Leland, 155 Iowa 583,136 N. W. 774; Northwestern Lumber Co. v. Cornell, 99 Wash. 250, 169 Pac. 590.

In Eau Claire Canning Co. v. Western Brokerage Co., 213 Ill. 561, 591, it is said: “In all the varied business transactions of men, wherever the relation of principal and agent exists, it is the duty of the principal to repudiate the unauthorized act of his agent as soon as he reasonably can after it has come to his knowledge, or he will be held to have ratified it. ’ ’

It is our conclusion that the proof establishes the fact that the employment of appellee by the agents of appellant was ratified by the latter, and that the jury were warranted in so finding. Moreover, this case has been twice tried, and two juries have found the issues the same way upon conflicting testimony. Where such is true, the settled rule appears to be that the finding, upon review, will not be disturbed as contrary to the weight of the evidence; Doerr v. City of Freeport, 239 Ill. App. 560, 567; and as held by this court in Meier v. Cleveland, C., C. & St. L. Ry. Co., 206 Ill. App. 285. The employment having been ratified by appellant, it is unnecessary to consider whether it was in the first instance authorized or not.

Objections were made to certain parts of the court’s charge, particularly to paragraphs 2, 3, 4, 5 and 6. The objections made to paragraphs 2, 3 and 5 were that they did not correctly state the law and were not supported by the evidence. Section 67 of the Civil Practice Act, Cahill’s St. ch. 110, Ti 195, requires that objections to the court’s charge shall be specific, or they will be deemed waived. The word “specific,” as thus employed, means “particular” or “precise.” Black’s Law Dictionary, p. 1100. The evident purpose of the requirement of said section 67, that the objections be specific, is to point out to the court wherein the alleged error lies, to the end that same may be obviated; and an objection which fails to do so is not in compliance with the statute.

An objection that a paragraph of a charge is an incorrect statement of law is merely a claim that it is erroneous, without informing the court of what the error consists, and does not afford the court any information which would enable him to correct the error. Such objections in our opinion do not meet the requirements of the statute.

The objection that the paragraphs are not supported by the evidence is untenable; we think there was sufficient proof in the record upon which to base the same.

The objection to paragraph 4, which stated the law as we have found it to be in relation to ratification by a principal of the unauthorized act of his agent, that such an act could not be ratified, is contrary to the established rules of law. Paragraph 6 was objected to generally, no basis of objection being assigned; hence appellant cannot avail itself of same, under said section 67 of the Civil Practice Act.

As to said paragraph 6, appellant suggested to the court that there be incorporated therein a direction to the jury to consider certain records of the industrial commission admitted in evidence, as bearing upon the question of the interest of the witnesses Carson, Logs-don, Snyder and Lipsey. Such an inclusion would have caused the paragraph to violate the rule that an instruction which informs the jury they may consider particular items of evidence as bearing upon the interest of a particular witness, is improper. Sullivan v. Eddy, 164 Ill. 391; Zapel v. Ennis, 104 Ill. App. 175. The court rightly rejected the suggestion.

Upon a careful consideration of this record we conclude that the judgment is right, and it will be affirmed.

Judgment affirmed.


author: Mr. Justice Murphy

text:
    Lewis Hoke, Appellee, v. Harrisburg Hospital, Inc., Appellant.

      Opinion filed June 8, 1935.
    Rehearing denied September 5, 1935.
    Miley & Combe, of Harrisburg, for appellant; D. C. Wray, of Wheaton, of counsel.
    Charles Dureee, of Groleonda, and D. L. Duty, of Marion, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Lewis Hoke, appellee, herein referred to as plaintiff, instituted an action in the circuit court of Saline county against Harrisburg Hospital, Inc., herein referred to as defendant, to recover damages alleged to have been sustained by reason of certain X-ray burns.

The case was tried upon two counts. The first alleged that on August 28, 1928, the defendant was the owner of and in control of a general hospital operated for profit, that in the hospital the defendant maintained and operated an X-ray machine for the treatment of patients, that the plaintiff applied to the de,fendant for treatment and while in the exercise of due care for his own safety, the defendant by its officers, agents, servants and employees undertook and did treat him in said building with its apparatus and that the defendant in administering the treatment wholly failed to exercise reasonable care for his safety and as a result he was burned. The second count was the same as the first, except that it alleged that he applied for treatment for which he paid and that the defendant failed to use ordinary care, skill, caution and vigilance for the safety- of the plaintiff. Defendant filed a general issue plea, and two special pleas, denying that it was the owner of or in control of the operation of the X-ray; that the plaintiff did not apply to the defendant for treatment but was the patient of Dr. R. B. Nyberg. The second special plea was that the X-ray machine and its appliances were in good repair, of an approved kind and that it was operated by Dr. R. B. Nyberg, a competent specialist in that line.

At the conclusion of plaintiff’s evidence and at the close of all the evidence, defendant moved for a directed verdict, which was overruled. The jury returned a verdict for $4,000 and after overruling defendant’s motion for judgment non obstante veredicto and in arrest of judgment, judgment was entered on the verdict.

The court’s action in overruling defendant’s motion for a directed verdict is assigned as error.

The defendant was incorporated in 1922. The stock is owned by more than 200 persons, residents of Harrisburg. The board of directors consists of seven persons, four of whom are doctors. Dr. Butner, who is president, and Dr. Nyberg are directors.

The defendant owns a building, the first floor of which it rents to doctors for their private offices, Drs. Butner and Nyberg each having their offices on that floor. The floors above the first are devoted to rooms for patients and general hospital purposes. The evidence is that the only interest the defendant has in the floor occupied by the doctors is the collection of rentals from the doctors and that it does not receive any part of the income collected by the doctors from their private practice. The doctors send their patients to the hospital for treatment and the hospital fees belong to the defendant.

The X-ray machine upon which plaintiff sustained injuries is owned by Dr. Nyberg. It is kept in a room in that part of the building used for hospital purposes. Dr. Nyberg and an assistant who is employed by him in his private office on the first floor are the only persons to operate the machine. The defendant furnishes the room and electric current rent free, except that the earnings from the machine are divided between the hospital and Dr. Nyberg. The earnings were sometimes collected by Dr. Nyberg and other times by the defendant but in either event, a division was made. Repairs to the machine were paid for by Dr. Nyberg.

Prior to the accident in question, plaintiff had suffered injuries while employed by a contracting firm. He had a claim pending before the industrial commission. In preparation for a hearing before the commission, his attorney suggested that he have some. X-ray pictures taken and secure a doctor to testify in reference to them. Plaintiff went to the office rooms occupied by Dr. Nyberg on the first floor of the building and engaged him to take the pictures and to appear before the commission. There was difficulty in getting a suitable picture and several exposures were made, resulting in severe burns to the exposed parts of his body. Each of the pictures was made by Dr. Nyberg and his assistant in the X-ray room above described. Plaintiff was never registered in the hospital and the evidence does not show that any of the hospital employees had anything to do with the taking of the picture.

Plaintiff seeks to recover on the basis that the defendant committed the negligent act. Being a corporation, it can only act through its agents and employees. Therefore, the question presented by the pleadings and the motion is, Was Dr. Nyberg, in the taking of the X-ray pictures, acting for and on behalf of the defendant ?

The fact that Dr. Nyberg was a stockholder in the defendant corporation would not render the corporation liable for his negligent acts, nor does the fact that the defendant company which was largely under the control and management of the four doctors, who constituted a majority of the board of directors, one of them being Dr. Nyberg, render the corporation liable for the negligence of Dr. Nyberg. Johnson v. City Hospital Co., 196 N. C. 610, 146 S. E. 573; Black v. Fischer, 30 Ga. App. 109, 117 S. E. 103; Stacy v. Williams, 253 Ky. 353, 69 S. W. (2d) 697. The division of the earning’s from the X-ray, given in lieu of rentals for the room and the electric current, did not tend to establish a relationship of master and servant.

Plaintiff’s employment of Dr. Nyberg was two-fold, viz., to have the X-ray pictures taken and to secure his services as an expert witness to aid in the introduction of the pictures in evidence in a legal proceeding. There is no evidence that tends to prove that the defendant was usually engaged in rendering such services and is no evidence to prove that the defendant exercised any right of control over Dr. Nyberg in his acceptance of plaintiff’s employment or in the performance of the services he was to render. “The right to control the negligent servant is the test by which it is to be determined whether the relation of master and servant exists. Pioneer Fireproof Const. Co. v. Hansen, 176 Ill. 100. Or, as stated in Maredosia Levee & Drainage Dist. v. Industrial Commission, 285 Ill. 68, and Decatur Railway & Light Co. v. Industrial Board, 276 Ill. 472: ‘The principal test as to whether one is an employee or an independent contractor lies in the degree of control retained and exercised by the person for whom the work is being done.’ ” Donohue v. George W. Stiles Construction Co., 214 Ill. App. 82, 87.

Even though Dr. Nyberg had been employed by the defendant as an X-ray specialist to operate the machine and to give X-ray treatments to the patients in the hospital, that would not in itself establish the relationship of master and servant so as to make the hospital liable for his negligent acts. The general rule is that such X-ray specialist is regarded as in the same professional class as a doctor and proceeds upon his own judgment as to how and what should be done. Runyan v. Goodrum, 147 Ark. 481, 228 S. W. 397, 13 A. L. R. 1403; Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 105 N. E. 92; Glavin v. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 675.

It is contended by plaintiff that the verbal admissions made on different occasions by Dr. Butner, who was president of the corporation, are sufficient to sustain the court’s order in overruling defendant’s motion for a directed verdict.

There is no evidence tending to prove that the board of directors of the defendant had notice of plaintiff’s injuries or that it took any action employing an attorney to represent it in trying to effect a settlement of the claim or that it authorized its president to take such action or that the president was in any way authorized to act in the matter. There is evidence which tends to prove that Dr. Butner made a statement to the effect that if plaintiff started suit, he should sue the hospital and not Dr. Nyberg; that on another occasion, he told a lawyer to see plaintiff’s attorney and tell them if they would sue the hospital that he and Dr. Nyberg would testify that the X-ray belonged to the hospital. These statements are denied but in this discussion, our only question is whether there is any evidence which tends to prove plaintiff’s case and we take them as true.

Admissions by a president of a corporation made in the execution of the duties imposed upon him and concerning a matter upon which he is called upon to act and which matter is within scope of the authority usually exercised by him are evidence against the corporation, Chicago, B. & Q. R. Co. v. Coleman, 18 Ill. 297; Scovill Mfg. Co. v. Cassidy, 275 Ill. 462, but such admissions or declarations must be so intimately connected with the discharge of some duty required of him by virtue of his office that such declarations are a part of the res gestae. The admission must‘be a part of or relate to some act which he is doing in the performance of the duties as such officer. Chicago & St. L. R. Co. v. Ashling, 34 Ill. App. 99; O’Neill v. Lindsay Light Co., 181 Ill. App. 700. The declaration of Dr. Butner admitting the liability of the hospital does not appear to have been made at a time when he was performing the duties of his office and on a matter within the scope of his usual duties as such officer.

“The president of a corporation has no implied authority, merely by virtue of his office, to surrender rights of the corporation; nor can he do so, even when he has the management and general control of the corporation, except for a consideration and in the usual course of business.” Fletcher Cyclopedia Corporations, Yol. 2, page 536.

We are of the opinion that there is no evidence tending to show that Dr. Nyberg in the taking of the X-ray pictures was the agent of the defendant and that the admission of Dr. Butner was not made under circumstances as to be binding upon the defendant and that the court erred in not directing a verdict for the defendant.

Other errors have been urged but the view we take on the matter considered makes it unnecessary to consider other alleged errors.

For the reasons assigned, the judgment of the lower court is reversed.

Judgment reversed.


text:
    Crim Uhls, Administrator of the Estate of Maynard Uhls, Deceased, Appellee, v. Old Ben Coal Corporation, Appellant.

      Opinion filed June 8, 1935.
    Rehearing denied September 5, 1935.
    W. H. Hart, of Benton, and Stone & Fowler, of Marion, for appellant.
    George W. Dowell, Leslie A. Cranston, both of Du Quoin, D. F. Moore, of Benton, and Jos. B. Mc-Glynn, of East St. Louis, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Crim Uhls, administrator of the estate of Maynard Uhls, deceased, herein referred to as the plaintiff, instituted suit in the circuit court of Franklin county against the Old Ben Coal Corporation and Central Illinois Public Service Company to recover damages arising by reason of the alleged wrongful death of his intestate son, 12 years of age. At the conclusion of plaintiff’s evidence, the court directed a verdict for the Public Service Company and the court’s ruling on that motion is not now before the court. The case proceeded against the Old Ben Coal Corporation and resulted in a verdict and judgment against it for $5,000. It has perfected its appeal and will be herein referred to as the defendant.

The errors relied upon for reversal are on questions of pleading, the refusal of the court to allow motions for a directed verdict non obstomte veredicto for a new trial and in arrest of judgment and in rulings on evidence and instructions.

Plaintiff’s intestate was injured August 16, 1931, and died from the injuries on the following day. A declaration containing one count was filed January 21, j 932. Two days before the expiration of the year following the date of death, two additional counts were filed. Subsequently, a demurrer was sustained as to all three of these counts. December 21, 1932, plaintiff filed an amended declaration containing four counts. The defendant then filed a general issue plea and two limitation pleas. The second plea* definitely alleged the insufficiencies of plaintiff’s original declaration and two additional counts which plaintiff relied upon to sustain pleas. Plaintiff’s demurrer to the special pleas was sustained and defendant elected to stand by its pleas.

The count of the original declaration did not state a cause of action. The two additional counts did allege facts, although defectively stated, that would state a cause of action but no venue was alleged in the caption. In the caption of the amended declaration filed after the expiration of the year, the venue was alleged to be in Franklin county. Defendant’s contention raises but one question as to the additional counts and that is in reference to the failure to allege a venue.

At the early common law, the allegation of venue in the body of the count was necessary to determine whether the action had been instituted in the proper court. To avoid useless statement and repetition of venue in all personal actions, it was provided by Eeg. Gen. Hil. T. 4 W. 4 reg. 8, Chitty Pleading, Yol. 1, p. 287, that “The name of a county shall in all cases be stated in the margin of a declaration, and shall be taken to be the venue intended by the plaintiff, and no venue shall be stated in the body of the declaration or in any subsequent pleading. Provided that in cases where local description is now required such local description shall be given. ’ ’

This case is an action to recover damages for injuries causing death, which were sustained by a child while he was playing around an alleged attractive nuisance, kept and maintained by the defendant. The first additional count contains the averment that the attractive nuisance was located upon property of the defendant which abutted upon a public highway and the highway is definitely located as being on the section line between certain sections with the township and range given which would locate it in Franklin county, but no county is named. The second additional count alleged that plaintiff resided with his family on a farm adjoining a certain highway and then describes the highway by the same legal description as contained in the first count. In describing the location of the scene of the nuisance and the accident, it was located as in the “county aforesaid” when, in fact, no county is named except as to the location of the highway. This was a sufficient allegation of the venue of the scene of the accident. St. Louis, J. & C. R. Co. v. Thomas, 47 Ill. 116; Chicago City Ry. Co. v. McMeen, 206 Ill. 108; Paul v. Weber, 223 Ill. App. 257. Even in transitory actions, the allegation of place, if matter of description is material and must be proved as laid. Chicago City Ry. Co. v. McMeen, supra. If the venue had been stated in the caption of the additional counts, it would have been the same as the venue alleged in the body of the counts and would not in any way change the cause of action therein stated. The venue of the site of the attractive nuisance as alleged in the amended declaration was the same as in the additional counts. The venue of the scene of the alleged nuisance being sufficiently stated in each of the additional counts, it is our conclusion that each of said counts stated the same cause of action as alleged in the amended declaration and that there was no error in sustaining the demurrers to each of the limitation pleas.

The next contention of the defendant is that the court erred in overruling its motion for a directed verdict. The evidence discloses that the defendant had been operating a coal mine for a number of years in Franklin county and in 1927, it acquired title to a small tract of land 25 feet square, located a short distance from its mine, for the purpose of placing thereon an electric substation to transmit electricity into its mine. This tract of land abutted upon the south side of an east and west public highway. Plaintiff and his family lived about an eighth of a mile east of the substation on the same highway and had lived there for more than 10 years. The highway had been used by the public for many years and children traveled it passing the substation on their way to and from school. The site of the substation at the time of the accident was fenced on three sides with a fence two to four feet in height but the side opening onto the highway, being the north side, was not fenced. There were no warning or danger signs posted at any place on or about the premises. The substation building* was about 14 by 18 feet, 10 feet high and covered on the sides and roof with a corrugated, galvanized metal covering. It was erected in 1927 and the metal covering showed the action of the elements upon it. The entrance to the building was by means of a door on the north side. Inside the building were certain electrical appliances but on the day of the accident, the door was closed and the machinery in the building was not exposed to view by window or other means. Immediately north of the building were three transformers somewhat covered with oil and dirt. The electric current was transmitted to the substation from the main line of the Central Illinois Public Service Company west of the substation by' means of a stub line which terminated at the station.

Near the northeast corner of the substation building there was an-electric pole about 25 feet high, carrying cross-arms 20 feet or more from the ground. The electric wires were attached to the cross-arms by means of insulators. A few feet north and west of the northwest corner of the building and about 28 feet west of the above described pole was another electric pole 25 feet in height, carrying cross-arms and insulators to which the high tension wires were attached. There was a telephone box attached to the east side of this pole about five feet from the ground. Immediately south of the pole was a fence post about five feet in height. Extending between the two poles and attached to them were two horizontal pipes about three feet apart, the lower one being 16 feet from the ground. According to the photographic exhibits in evidence, there were three wires extending downward from the high tension wires and connected to the horizontal pipes by means of insulators. About midway between the ends of the horizontal pipes were three bars extending perpendicularly from one of the horizontal bars to the other. On these perpendicular bars, switches were attached which, when thrown open, prevented the electric current from passing below them into the transformers. They were opened and closed from the ground by means of a long pole. At the time of the accident, the mine had been closed for several months and these switches were open during all the time including the day of the accident. Neither of these electric poles had any spikes or ladder attachments for climbing. Each pole was about a foot in diameter and there is evidence tending to prove that the east pole stood on the boundary line between the highway and the substation site; that the west pole, the one which deceased climbed, was in the highway, there being a space of five inches between the pole and the south line of the highway. At the time of the accident, the electric current was not closer to the ground than the upper switches on the horizontal pipes between the poles for about 18 to 20 feet above the ground. The wires were copper and not insulated.

Plaintiff’s intestate, a boy 12 years of age, was residing with his father and mother on a farm a short distance east of the substation. The accident occurred on a Sunday afternoon. There were visitors at the Uhls’ home and ice cream had been served on the lawn. Deceased was there at that time but soon thereafter he and another boy nine years old began playing in the public highway with a toy home-made automobile. In about 30 minutes from the time of the gathering on the lawn, the boys were at the substation. The companion of the deceased was the only eyewitness to the^accident. He testified that they went down to the electric station and that deceased climbed on to the fence post near the light pole which stood near the northwest corner of the building, put his arms around the light pole and with his arms and knees “shinnied” up the pole and when he reached the lower horizontal pipe, he walked out on it; that in so doing, he touched an insulator and said, “That has got some power behind it”; that immediately there was a flash and deceased fell to the ground. Witness testified that when the deceased started to climb the pole that he told him not to go up and asked him to go to another place to play; that deceased told him it wasn’t dangerous and asked the witness to come on up. Witness tried to climb the pole but could not.

Each of the four counts of plaintiff’s amended declaration alleges that the two poles at the corner of the building were in the public highway and that the poles, building and other appliances were attractive to children of tender years, which was known to defendant or by the exercise of ordinary care should have been known by it. The negligence charged in the first count was that the defendant failed to use ordinary care and diligence in placing and maintaining the building, poles, crossbars and other appliances on private property a reasonable distance from a public highway so as to protect children. The negligence charged in the second count was the failure to enclose the building, poles and appliances by fence or wall. The third count was the failure to mark the building, poles and appliances with suitable warning and danger signs. The fourth was the failure to keep the wires properly insulated.

There is no evidence of an express invitation by the defendant to children to play around the substation and there is no evidence that it had any notice that children played around said premises. Two witnesses called by plaintiff testified that sometime prior to the accident they had seen children playing on the ground around the poles and building but their evidence was indefinite and uncertain as to when they had seen them or who it was. There is no evidence that anyone ever saw any child on the poles. The question then arises, Did these poles, building and other appliances, constructed as they were, constitute what is commonly called attractive nuisances?

Counsel for defendant has cited many cases from other jurisdictions holding that structures similar in design to this and used for transmitting electricity were not attractive nuisances. We feel that the Supreme Court of this State has applied the attractive nuisance doctrine to instrumentalities so similar to the one in this case that we are constrained to hold that there is evidence tending to prove that it was an attractive nuisance and that the court properly submitted the question to the jury.

In Stedwell v. City of Chicago, 297 Ill. 486, an action was brought to recover damages for injuries sustained by a boy 11 years and seven months old. The elec: trie wires with which he came in contact were owned by the city and used for lighting the streets. They were suspended from poles along the street and at the intersection of an elevated railway the wires dropped and passed under the elevated structure and were attached to it by means of insulators. The brackets to which the insulators were attached were fastened by means of wooden arms to the steel post supporting the elevated structure. The distance from the wire so fastened to the surface of the street was approximately 13 feet. The iron posts supporting the elevated structure were set in concrete and there were crosspieces between the sides of the post giving the appearance of lattice work extending from the ground to the upper structure. The wire in question passed within 10 inches of one of these steel posts. The plaintiff while playing in the street climbed the lattice work on one of the posts and came in contact with the wire. The plaintiff recovered a judgment which was affirmed. The court said, “Whether the pillar was so attractive to children in their sports as to suggest the probability of the accident was a question for the jury.” City of Pekin v. McMahon, 154 Ill. 141; Stollery v. Cicero Street Ry. Co., 243 Ill. 290.

In Deming v. City of Chicago, 321 Ill. 341, the plaintiff recovered a judgment against the defendant for the wrongful death of his intestate, a boy nine years old. He came to his death by coming in contact with an electric wire belonging to the defendant. A poplar tree 30 or 40 feet in height, the lowest limb being six or seven feet above the ground stood in a grass plot in the defendant public street. About 20 feet above the ground and a foot from the trunk of the tree were two electric wires which were used by the city for lighting the streets. The deceased climbed the tree for the purpose of getting a kite which was entangled in the wires and in so doing was electrocuted. The court there said: “This injury occurred in a tree in a public street and the deceased was, therefore, not a trespasser at the time he was killed. (Stedwell v. City of Chicago, 297 Ill. 486.) Plaintiff in error was bound, in placing in the street wires which carried a heavy load of electricity, to guard against accidents by the exercise of that degree of care commensurate with the danger incident to the use of such a dangerous agency. (Hausler v. Commonwealth Electric Co., 240 Ill. 201.) Whether the tree located in the public street was so attractive to children in their sports as to suggest the probability of such an accident as occurred, and whether the city was negligent in maintaining the wires as it did, were questions for the jury. (Stedwell v. City of Chicago, supra.) There was sufficient evidence of negligence to justify the court in submitting the case to the jury, and the motion to direct a verdict was properly overruled.”

In Wolczek v. Public Service Co., 342 Ill. 482, the plaintiff, a boy 11 years of age, received injuries while climbing an unguarded steel tower which supported uninsulated wires which carried a high voltage of electricity through a forest preserve of Cook county. The tower was erected on a concrete base three and one-half feet square and had four main columns or legs. Horizontal braces connected these legs about two feet from the base and struts ran diagonally at an angle of 45 degrees from one leg to another on each side to the top of it. The distance along one leg of the tower from the point where one strut joined it to the point where the next strut joined the same legs was six feet. Beginning 14 feet above the ground, a ladder was formed which extended to the top of the tower. The cross-arm carrying the wire was 36 feet from the ground. The wires were a little less than two feet from the side of the tower. The plaintiff, while playing in the forest preserve with other children, climbed the tower by means of the struts and the ladder and came in contact with the wire charged with electricity. The court in passing* upon the same question under consideration in this case said, ‘ ‘ Considering whether there is any substantial evidence which, when considered most favorably for defendant in error, tends to show an implied invitation to children to play on this tower, we have seen that a caretaker of the forest preserve district had seen other children climbing* on the bottom bars of this tower and had told them to get off. Four of the six girls, the oldest 13 years of age, of the party present at the time defendant in error was injured, climbed as high as eight feet on the struts of the tower. They testified that they were playing and climbing around the tower to have fun. The road extending through the forest preserve passed within a few feet of this tower. The children while playing* in the forest preserve were where they had a right to be. The struts of this tower were easy to climb. The warning sign had been taken off the tower and not replaced. The tower was not fenced and bore no warning sign of any character. Can it be said that reasonable minds will agree, on consideration of all this evidence, that it, with its reasonable intendments and inferences, when considered in its aspect most favorable to the plaintiff’s cause, does not constitute any substantial evidence that the tower was especially attractive to children? If such can be said then it must be held as a matter of law that this material allegation of the declaration is unsupported by proof and that the trial court erred in refusing to give an instruction for the defendant. We are unable to say, however, that this does not constitute any substantial evidence of the attractiveness of the tower to children. We are of the opinion, therefore, that the record contains evidence tending to show that the tower was attractive to children, that there was no warning, and that such evidence tended to prove an implied invitation to children to climb upon it. It is not contended that the defendant in error was a trespasser before he went upon the tower. While the tower was located on the right of way of plaintiff in error 100 feet wide, the line extended through the forest preserve, and there is no contention that the children were trespassers while on the right of way.”

In this case there is no contention that defendant did not have the right to erect the poles in their respective locations. Deceased was not a trespasser until he climbed onto the fence post and started to climb the pole. Under the rules announced in the foregoing cases, we find that there is evidence in this case which tends to prove that the instrumentalities in question were attractive to children and did attract plaintiff’s intestate from the public highway where he had a right to be on to the pole and structure in question.

Defendant further contends that even if this pole and structure was attractive, the plaintiff failed to prove that the deceased was in the exercise of ordinary care for his own safety according to the intelligence and capacity of a boy of his age. The rule is that children are not held to the same accountability as adults. At common law a child under the age of seven years was conclusively presumed not responsible for his acts. Between the ages of 7 and 14 years this presumption still prevailed but it might be overcome by proof of the intelligence or capacity of the child. That rule has been followed in this State. Wolczek v. Public Service Co., supra. On the trial of this case, plaintiff introduced no evidence tending to prove the intelligence or capacity of the deceased. Defendant introduced evideuce to the effect that the deceased attended country-school, was of normal intelligence for a boy his age and athletically inclined. Defendant contends that the statement made by the deceased to his playmate just before his death when he touched the insulator, “that thing has some power behind it,” is conclusive proof that he knew the dangerous character of the instruments he was playing around and should therefore be held to have been guilty of contributory negligence. As against this, the evidence shows that when the deceased started to climb the pole his playmate asked him not to go, to which the deceased replied that it was not dangerous. The question of contributory negligence is ordinarily one of fact for the jury which must be determined from all the facts and circumstances in the case. It becomes a question of law only when it can be said that all reasonable minds will agree on a consideration of all the evidence that there is no evidence tending to prove due care. The evidence in this case together with the common law presumption which pertains as to a boy under 14 years of age justified the submitting to the jury one question of the contributory negligence of the deceased.

Defendant further contends that there is no evidence tending to prove due care by next of kin. The next of kin were the father, mother, a sister 16 years of age, two brothers and a sister under five years of age. The allegation of the pleadings in reference to the due care of the next of kin is “and that his parents who were the only persons charged with his care, custody and control were at all times in the exercise of ordinary care for his safety.” The father and mother were the only persons of the next of kin that were charged in caring for and protecting the deceased from accidental injuries.

In Holden v. Schley, 355 Ill. 545, the court was considering a question of pleading of due care as applied to an adult and after reviewing many of the former decisions said, “Many other cases will be found upon an examination of the subject, but it will be learned that in each of them the case either involves an infant, which is necessarily under the control of its parents and for which control the parents are responsible, or else it appears from the pleadings or the proof in the case that the negligence of an adult next of kin directly contributed to the death in question. ’ ’ In further discussion of the question on page 549, the court said, “The declaration in this case showed the deceased to be an adult, leaving a wife and son surviving him. It shows on its face that the driver of the car was not one of his next of kin. Proof of the facts stated in the declaration — i. e., that the deceased himself and the driver of the car with whom he was riding, not being one of his next of kin, were in the exercise of due care and caution for his safety and that the accident resulted by reason of the negligence of the defendants or some of them — would have entitled the plaintiff to a verdict and judgment. No further proof could have been required of her, although the defendants might have successfully defended by introducing affirmative proof to show that some one of the next of kin was in fact guilty of negligence which contributed to or caused the injury.”

It is our conclusion that since the contributory negligence of a next of kin of an adult deceased person is an affirmative defense which need not be pleaded or proven by the plaintiff, that it would follow that the contributory negligence of the next of kin who are themselves minors and not charged with the care of deceased would be an affirmative defense and need not be pleaded or proven by the plaintiff.

Upon the question of contributory negligence of the parents, there is evidence to the effect that the deceased was at the home 30 minutes before the accident occurred and that they were serving ice cream to the guests, all of which would be interesting to a 12-year-old boy and conducive to keeping him in their immediate presence. We cannot say as a matter of law that the fact that the child while engaged in innocent play with his companion on the lawn and in the public highway in an unguarded moment went down the road an eighth of a mile to the substation would be such negligence as to bar plaintiff’s right of recovery. There was no error in overruling defendant’s motion for a directed verdict.

Defendant excepted to that part of the instructions which told the jury that a boy of the age of plaintiff’s intestate is only required to exercise that degree of caution that a boy of his age, intelligence, capacity and experience would exercise under the same or similar circumstances, the objection being that the instruction was abstract and made no connection with the case and did not refer to the care required of him for his own safety. There were other instructions that told the jury that in passing upon the question of the contributory negligence of the plaintiff, they should take into consideration his age, experience and knowledge of electricity and from these they were to determine whether he knew and understood the danger of electricity and if they found from the evidence that he did know and appreciate the dangers of electricity at the time of the accident, then the verdict should be for the defendant. Under these instructions, the jury could not have been misled by the giving of the abstract instruction complained of.

Exception was taken to the instruction on assessing damages which told the jury that if from the evidence and instructions they found the issues for the plaintiff, then in assessing damages they would not be limited to the pecuniary value of the services of Maynard Uhls to his next of kin until he should have arrived at the age of 21, but the jury may consider the pecuniary benefit which the next of kin may have derived from said deceased had he not been killed at any age of his life, the criticism being that the instruction did not limit the jury to the evidence. This instruction in the same form was given and approved in United States Brewing Co. v. Stoltenberg, 211 Ill. 531; Lichtenstein v. Fish Furniture Co., 272 Ill. 191. The rule announced in the instruction has been approved in the following cases: North Chicago St. R. Co. v. Johnson, 205 Ill. 32; Carlin v. Deahl, 172 Ill. App. 197; Grayhek v. Stern, 154 Ill. App. 385; Mugaviro v. Chicago, B. & Q. R. Co., 239 Ill. App. 544. Defendant relies upon Muren Coal & Ice Co. v. Howell, 204 Ill. 515, and Fowler v. C. & E. I. R. Co., 234 Ill. 619, but an examination of the instructions under consideration in those cases discloses that the instruction was as to amount of damages and the court there held that the instruction was erroneous in that the jury was not limited to the evidence as to the amount. The instruction under consideration is not solely as to the amount but is the announcement of a rule as to the period of time that the jury can take into consideration in fixing a pecuniary value of the services of the deceased.

Defendants tendered suggestions to the court as to certain subjects upon which it wished the jury to be instructed. We have examined the suggestions tendered and the instructions given and find that the court in its narration as to the law fully and fairly instructed the jury and in so doing adopted the material principles embodied in defendant’s suggestions. There was no reversible error in the instructions.

Defendant requested the giving of six special interrogatories. The court gave three and the court’s refusal to give the other three is assigned as error. The three interrogatories given asked for a yes or no verdict on the- following: ‘ ‘ Could the defendant acting as a reasonable person foresee or anticipate that a boy of the age and experience of deceased would be likely to climb, one of its poles at the substation; Was the deceased in climbing the pole exercising the care and caution for his own safety that other boys of his age and experience would have exercised under the same or similar circumstances; Were the parents of deceased in the exercise of due care for his safety?” All were answered in the affirmative. The refused interrogatories asked for a yes or no verdict on the questions whether the appliances and equipment were so constructed and situated as to attract and allure the deceased beyond his power of resistance; did deceased have sufficient experience and knowledge to know and appreciate danger from electricity and were the appliances on the property of the defendant. The three interrogatories given covered the ultimate issues of fact that the jury was to determine and each of them were answered in accord with their general verdict and the court’s ruling against the other three is approved.

Defendant propounded the following question to two of its witnesses, both of whom were minors, “Describe to the jury any impulse or feeling, if any, that you might have had at any time you would pass by this substation.” Objection was sustained and the court’s ruling is assigned as error. It would have been proper to have asked the witness if as he passed the substation did he go over to it or about it. The question asked for a description of the witness’s impulses or feelings as he passed the substation. The impulse or feeling that the witness may have had could not be, material. Objection was properly sustained.

Complaint is made of a statement made by plaintiff’s attorney in his argument to the jury. The' court sustained the objection to it. The substance of the statement was that the case had been instituted against two defendants and that the court had directed a verdict as to one of the defendants but that the court saw fit to allow the case to continue as to this defendant. The statement should not have included any reference to the court’s action in sustaining the case against the defendant but we do not regard the statement as of such prejudicial nature to require a reversal.

Finding no reversible error in the record, the judgment of the circuit court is affirmed.

Judgment affirmed.