author: Mr. Justice Shurtleef

text:
    Lucinda Holden, Administratrix of the Estate of A. T. Holden, Deceased, Appellant, v. Jack Schley et al., Appellees.
    Gen. No. 8,694.

      Opinion filed May 24, 1933.
    Nelson B. Layman and Deck & Jack, for appellant; Jesse L. Deck, of counsel.
    Le Forgee, Samuels & Miller and Whitley & Fitzgerald, for appellees; Charles Y. Miller and John B. Fitzgerald, of counsel.
   Mr. Justice Shurtleef

delivered the opinion of the court.

A. T. Holden, for whose death-this action was instituted, received injuries in an automobile collision on Illinois State Highway Number Two at a point-near Badford, in Christian county, from which injuries he died on September 3, 1928. Suit was filed in the circuit court of Macon county to the October, 1929, term, the praecipe for summons being dated August 6, 1929. Service was had on all three defendants within a few days thereafter.

The original declaration consisted of three counts and was filed September 24, 1929. To this declaration general and special demurrers were filed on behalf of all three defendants. During the May, 1930, term of said court, appellant obtained leave of court to file an amendment to said declaration, on August 2, 1930. No argument was had upon said demurrers filed to the original declaration.

Upon the filing of the amendment to the declaration, the court permitted the original demurrers to stand to the declaration as amended. The amended declaration, in order to meet the objections raised to the original declaration, alleged and set forth that the next of kin and beneficiaries of said deceased, A. T. Holden, were in the exercise of due care and caution at and before the time of the collision of the automobiles in question. The original declaration omitted any allegation as to due care and caution on the part of said next of kin and failed to disclose by any facts or circumstances the conduct of said next of kin at and prior to the collision.

Appellant admits by the pleadings and in her brief that the allegation reciting the exercise of due care on the part of the intestate’s next of kin is fundamental and necessary, but relies upon the provisions of section 39 of the Practice Act, Cahill’s St. ch. 110, If 39, as amended, contending that under this Act the filing of the amended declaration relates back to the date of the filing of the suit. Upon a hearing the trial court sustained the demurrers to the declaration as amended, and appellant abided by her declaration, as amended. Judgment was accordingly entered for the defendants, and appellant has brought the record by appeal to this court for review.

It is contended that the amendment to section 39 of the Practice Act does not apply to actions brought under the Injuries Act, for injuries resulting in death. Prior to 1929, section 39 of the Practice Act read as follows:

“At any time, before final judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable, introducing any party necessary to be joined as plaintiff or defendant, discontinuing as to any joint plaintiff or joint defendant, changing the form of action, and in any matter, either of form- or substance, in any process, pleading or proceeding which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought or the defendant to make a legal defense.

“The adjudication of the court allowing the amendment shall be conclusive evidence of the identity of the action. ’ ’

In 1929 the Legislature amended this statute by adding the following paragraph thereto:

“Any amendment to any pleading shall be held to relate back to the date of filing the original pleading so amended, and the cause of action or defense set up in the amended pleading shall not be barred by laches, or lapse of time under any statute prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited has not expired when the original pleading was filed, and if it shall- appear from the original and amended pleading that the cause of action asserted, or the defense interposed in the amended pleading grew out of the same transaction or occurrence, and is substantially the same as set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact, or some other matter or matters, which are necessary conditions precedent to the right of recovery or defense asserted when such conditions precedent have been in fact performed. ’ ’

Under this amendment appellant contends that a declaration under the Injuries Act, Cahill’s St. ch. 70, If 2, may be made to conform to the provision of the act at any time before final judgment, by amendment, regardless of the period that has expired after bringing suit. With this contention we cannot agree.

The Injuries Act, Cahill’s St. ch. 70, 2, enacted by the Legislature in 1853, created a cause of action for death for the first time in this State. This statute provides the parties in whose name the suit shall be brought and what shall be done with the proceeds recovered thereunder. It fixes the time in which such action shall be brought. Originally the act provided that suit shall be brought within two years after the death of the deceased. By amendment in 1903 this character of action was limited to one year. This limitation of one year for the right to sue, is not a statute of limitations, but is a condition of liability itself. (Bishop v. Chicago Railways Co., 303 Ill. 273; Hartray v. Chicago Railways Co., 290 Ill. 85; Carlin v. Peerless Gas Light Co., 283 Ill. 142; Coffin v. Greer College of Motoring, 248 Ill. App. 584; Hanley v. Waters, 255 Ill. App. 239; Lipcovitz v. Warren Printing Co., 249 Ill. App. 368; Lincoln Park C. & B. Co. v. Wabash R. R. Co., 254 Ill. App. 323; McGirr v. Pritchard, 258 Ill. App. 467.)

Where an action is brought under the Injuries Act in death cases the plaintiff must bring himself within the conditions of the act. (Hartray v. Chicago Railways Co., supra; Carlin v. Peerless Gas Light Co., supra; Bishop v. Chicago Railways Co., supra; Welch v. City of Chicago, 323 Ill. 498.)

A declaration must allege all the circumstances necessary for the support of the action, and one which fails to allege a fact without the existence of which the plaintiff is not entitled to recover, does not state a cause of action. (Walters v. City of Ottawa, 240 Ill. 259; Davis v. St. Paul Coal Co., 286 Ill. 64; Allis-Chalmers Mfg. Co. v. Chicago, 297 Ill. 444; Calumet Iron & Steel Co. v. Martin, 115 Ill. 358; Stephens v. Illinois Cent. R. Co., 256 Ill. App. 111.) In a case of injury causing death it must be alleged and proved that the next of kin or beneficiaries were free from negligence. This is a material part of a plaintiff’s case. (Stephens v. Illinois Cent. R. Co., supra; Hazel v. Hoopeston-Danville Bus Co., 310 Ill. 38; Follett v. Illinois Cent. R. Co., 288 Ill. 506; Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424.) Likewise, in a case of injury, not causing death, the allegation that plaintiff was in the exercise of due care and caution is a necessary and material one. (Steel Co. v. Martin, supra; Gerke v. Fancher, 158 Ill. 375; Burns v. Chicago & Alton Railroad Co., 223 Ill. App. 439; Newell v. Cleveland C., C. & St. L. Ry. Co., 261 Ill. 505.)

The Injuries Act is not a statute of limitations but creates a new liability which did not exist at common law. The time fixed for bringing an action is a condition of liability and operates as a limitation of the liability itself and not alone of the remedy and procedure. (Lincoln Park C. & B. Co. v. Wabash R. Co., 254 Ill. App. 323; Hartray v. Chicago, Rys. Co., supra; Bishop v. Chicago Rys. Co., 303 Ill. 273; Schlitz Brewing Co. v. Chicago Rys. Co., 307 Ill. 322.)

The right of personal representatives to sue for wrongful death under the Injuries Act is not a right of action for personal injuries within the meaning of the Limitations Act. (Bishop v. Chicago Rys. Co., supra; Coffin v. Greer College of Motoring, 248 Ill. App. 584.)

An allegation in a declaration that deceased left surviving next of kin who sustained pecuniary loss is an essential element of a cause of action under the Injuries Act. (Hanley v. Waters, supra; Chicago & Rock Island R. Co. v. Morris, 26 Ill. 400; Quincy Coal Co. v. Hood, 77 Ill. 68; Lake Shore & M. S. Ry. Co. v. Hessions, 150 Ill. 546.) In an action brought under the Injuries Act, the allegation in the declaration as to the date of the death of the injured party is a most material one. (Coffin v. Greer College of Motoring, supra; Hartray v. Chicago Railways Co., supra.) A declaration, not showing upon its face that the action was brought within one year after the death, stated no cause of action and was insufficient to support a judgment in plaintiff’s favor. (Hartray v. Chicago Railways Co., supra.)

The rule is well established that when a cause of action is stated for the first time in an amended count of a declaration the suit is regarded as having been commenced as to such cause of action -at the time of filing* the amended count, and if the statute of limitations has then run, it will be a bar to the new cause of action stated in the amended count. (Allis-Chalmers Mfg. Co. v. Chicago, supra; Bahr v. National Safe Deposit Co., 234 Ill. 101; Devaney v. Otis Elevator Co., 251 Ill. 28; Lipcovitz v. Warren Printing Co., 249 Ill. App. 368.)

The amendment is to the Practice Act. Appellant seeks to apply it to the provisions of another and separate act of the statutes, namely, the Injuries Act. It is contended further by appellee that to so extend the amendment to the Injuries Act would contravene the provisions of section 13 of article 4 of the Constitution, which provides as follows:

“No law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length in the new act.”

In a very similar case, Bishop v. Chicago Railways Co., 303 Ill. 273, where an action was brought under the provisions of section 2 of the act of 1873, entitled “An Act to amend an Act in regard to limitations,” a demurrer to a plea of the statute of limitations was sustained, but was reversed by the Supreme Court (290 Ill. 194). Later this action was brought and at page 276 the court said:

“Appellee contends, also, that section 2 of the amendatory act (called in the briefs section 25 of the Limitations Act) is not applicable to actions arising under sections 1 and 2 of the Injuries Act, to which class the action in this case belongs. This question is not free from difficulty. No right existed at common law to recover for the wrongful death of a person. The Injuries Act passed by the legislature of this State in 1853 created such a cause of action for the first time in this State. This statute provides the parties in whose name the suit shall be brought and what shall be done with the proceeds of a judgment recovered thereunder. It fixes the time in which such action shall be brought. Originally the act provided that suit should be brought within two years after the death of the deceased. By amendment in 1903 this was reduced to one year. The limitation of the right to sue, fixing the exercise of such right within a year, is not a statute of limitations but is a condition of the liability itself. Where action is brought under the Injuries Act in death cases the plaintiff must bring himself within the conditions of the act. (Hartray v. Chicago Railways Co., 290 Ill. 85; Carlin v. Peerless Gas Light Co., 283 Ill. 142.) It is seen, therefore, that the statute which creates the right, — that is, the Injuries Act, — places a limitation, not on defenses to the right of action but upon the right of action itself. The Stat- • ute of Limitations may be styled a defense statute; the Injuries Act is purely and simply a liability statute. The provision of the Injuries Act requiring that suit be brought within a year after the death not being a limitation statute, section 2 of the 1873 amendment to the Limitations Act cannot be said to be applicable to cases arising under the Injuries Act unless the right of action in such cases can be seen to be included within the classes of cases embraced by the Limitations Act. . . .

“This proposition need be but stated to make it clear that the legislature could not have had in mind an extension of the period of liability in a death case by extension of the period of limitation relating to actions for injury to property as provided in the Limitations Act. To hold otherwise would be to say that the legislature intended by the Limitations Act as amended, to extend, not a period of limitations specified in the Limitations Act but one of liability provided for by an entirely separate act. To so hold would be to do violence to the rules for the construction of statutes. ’ ’

In the amendment to the Practice Act there is no reference had to the Injuries Act. Statutes are to be construed to give a prospective effect only, unless the intent of the Legislature to give them a retrospective effect is declared in terms so plain and positive as to admit of no doubt. (Eddy v. Morgan, 216 Ill. 437; McGirr v. Pritchard, 258 Ill. App. 467; Hanley v. Waters, 255 Ill. App. 239.) If it is doubtful whether it was the intention of the Legislature to give the act a prospective or a retrospective operation, the act must be given a prospective operation only. Eddy v. Morgan, supra. A statute will not be given a retrospective effect unless the legislative intention so to do clearly appears. Havill v. Havill, 332 Ill. 11. A statute will not be given a retrospective effect unless the language is so clear as to admit of no other construction. Jones v. Loaleen Mutual Benefit Ass’n, 337 Ill. 431.

It is not necessary to elaborate or quote further from the many cases which firmly establish these well known and elementary principles of law, and the judgment of the circuit court of Macon county is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Shurtleff

license: Public Domain

text:
    Margaret Cutwright, Executrix of the Estate of Effie C. McVay, Deceased, Appellant, v. Preachers’ Aid Society, Appellee.
    Gen. No. 8,691.
    Opinion filed May 29, 1933.
    Wilton A. Carr and Raymond Gr. Real, for appellant.
    A. F. Bussard and Webber & Webber, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This cause originated in a claim-presented by appellee to the county court of Cumberland county, sitting in probate, upon a note signed and executed by one Effie C. McYay, in her lifetime. The note is in the following form, to wit:

“$1,250,000 Illinois Bi-Conference Movement No....

$1,250,000 Date June 4, 1923.

“In Consideration of my interest in Conference Claimants and in consideration of others subscribing to the Illinois Bi-Conference Movement for One Million Two Hundred Fifty Thousand Dollars, as shown on the back of this subscription, I hereby pledge and promise to Conference Claimants of Illinois Conference the sum of Five Thousand Dollars ($5,000.00). This subscription is made upon the following terms and conditions:

“1 — Stricken.

“2 — This subscription shall become due upon the day of my decease and shall be payable on or before one year thereafter by my administrator or Executor out of the proceeds of my estate.

‘ ‘ 3 — This pledge shall bear interest at the rate of.... per cent (....%) per annum payable semi-annually from and after November first, 1923.

“The official finding of the Executive Committee as to whether the conditions of this pledge have been met, shall be binding and final.

“Name, Eeeie C. MoYay,
“Greenup, Illinois.

“Witness, W. D. Fairchild

“Witness, J. Andrew Arnett

“Charge Greenup

“District Mattoon, Conference Illinois.”

There was written with pen near the upper margin: “To Conference Claimants, Illinois Conference.”

There was indorsed. on the back of said note the following:

“It is Understood that funeral and other expenses shall be paid out of the holdings,- real and personal of the signor and that all property held by her of whatsoever value above the Five Thousand Dollars named on the face of this contract shall be the property of the beneficiaries of this contract.

“Effie C. McVay.

“Illinois Weslyan University......... $ 33,333.00

“Illinois Womans College............ 250,000.00

“The Wesley Foundation............. 250,000.00

“Conference Claimants, Central Illinois

Conference .......'............... 83,333.00

“Conference Claimants, Illinois Conference ................. 166,667.00

“Chaddock Boys School.............. 83,333.00

“Expenses and Miscellaneous.......... 83,334.00

“Total Asking..........$1,250,000.00”

As to “ Conference Claimants ” it is conceded in the briefs that this is a generic term which has acquired a well-recognized secondary meaning in the Methodist Episcopal Church. It refers to retired or disabled ministers of the gospel of that denomination or the widows or orphans of" deceased ministers, who, under the laws, usages and discipline of the Methodist Episcopal Church are entitled to receive support by way of or in the nature of a pension. There is no organization or corporation having for its legal title ‘ ‘ Conference Claimants.”

Also, as to “The Preachers Aid Society of the Illinois Annual Conference of the Methodist Episcopal Church,” appellee’s brief recites: “This is a corporation not for pecuniary profit organized under the laws of the State of Illinois and has been in continual existence since the year 1871. Pursuant to the laws, usages and "discipline of the Methodist Episcopal Church, this corporation has been designated by the Illinois Annual Conference of the Methodist Episcopal Church as the official depository and custodian of all funds to be used in the support and maintenance of the Conference Claimants entitled to support and maintenance from the last named Conference.”

The claim was allowed in the probate court in the sum of $5,000, and upon appeal to the circuit court and a trial de novo, the claim was again allowed and appellant has brought the record to this court by appeal for review.

Appellant has raised no question upon the legal right of the appellee to sue in this cause, and we raise none. There was no consideration of any kind for the execution of the instrument, except that expressed upon the face of the instrument, which expresses no consideration.

It is contended by' appellant that a promise to make a gift is unenforceable. (Williams v. Forbes, 114 Ill. 167; Walton v. Walton, 70 Ill. 142; and Arnold v. Franklin, 3 Ill. App. 141.) It is further contended that a note executed and delivered as a gift is without a valuable consideration and will not support an action either at law or in equity. (Arnold v. Franklin, supra; Beatty v. Western College, 177 Ill. 280, and Pratt v. Trustees, 93 Ill. 475.) It is also further contended that a promissory note intended as a gift to the payee is but a promise to make a gift in the future. The gift is not executed until the note is.paid; Richardson v. Richardson, 148 Ill. 563. And that a voluntary' subscription stands as an offer until acted upon by the promisee and may be revoked by death before it is acted upon. (Augustine v. Trustees of Methodist Episcopal Society, 79 Ill. App. 452; Pratt v. Trustees, supra; Beach v. First Methodist Episcopal Church, 96 Ill. 177, and Beatty v. Western College, supra.) It is the law, also, that the labor and expense in obtaining other subscriptions do not constitute a consideration to support a subscription. (Augustine v. Trustees, supra; Beatty v. Western College, supra; Presbyterian Church v. Cooper, 112 N. Y. 517, 20 N. E. 352, 3 L. R. A. 468.)

The only basis of a consideration for the note in question is found in the principle that voluntary subscriptions become binding when advances have been made or expenses incurred before notice of withdrawal, and thereafter the maker is estopped to raise the defense of want of consideration. (Thompson v. Board of Supervisors, 40 Ill. 379; Beatty v. Western College, supra; Trustees of Griswold v. Peoria University, 26 Ill. 41, and Whitsitt v. Trustees Presbyterian Church, 110 Ill. 125.)

It is claimed by appellee that it advanced money, relying upon the good faith and credit of this pledge and in anticipation of its payment. We have examined the record fully and subjoin all of the testimony upon that subject. A. M. Wells testified that he was a minister of the Methodist Episcopal Church and resided at Decatur. “Annual conferences are authorized to establish and maintain investment funds; Preachers’ Aid Societies; and organizations and funds of similar character under such names, plans, rules and regulations as they may determine, the income from which shall be applied to the support of Conference Claimants. It is recommended that each Annual Conference provide an incorporated Board to administer its permanent funds. . . . That provision was in the Discipline in the month of June, 1923, and has continued until the present time. Preachers ’ Aid Society of the Illinois Annual Conference of the Methodist Episcopal Church is a corporation of Illinois. . . .

“We have a record to show it which is the Journal and year book of the Illinois Annual Conference for 1929. It appears on page 337. I am a member of the Illinois Annual Conference and attend sessions and have been doing that since 1897. The Journal and YearBook is the official Year Book. There is no other-printed record. It is certified on page 296. The official certification is as follows: ‘We hereby certify that the foregoing together with all reports, is a correct record of the proceedings of the One Hundred and Sixth Session of the Illinois Annual Conference of the Methodist Episcopal Church, held in Decatur, September 17th to 23rd, 1929, and was adopted as its official Journal. Edgar Blake, President. G-eorge Davis, Secretary. ’ “To my knowledge there is no other record except that and the printed counterparts of it. . . . Referring to Conference Claimants Fund on page 337, the title is ‘Conference Action Concerning the Preachers’ Aid Society, ’ and is as follows:

“. . . ‘Therefore, Be It Resolved: That the Preachers’ Aid Society of the Illinois Annual Conference of the Methodist Episcopal Church, a corporation not for pecuniary profit, organized and authorized to exercise its corporate powers by virtue of the laws of the State of Illinois, be and it is hereby designated as the incorporated Board and the organization to administer the permanent funds of this. Conference set out and referred to in the paragraph of the Discipline first above mentioned ;

“ ‘Be it Further Resolved: That any such permanent funds of this Conference which may have been heretofore entrusted to said corporation for the uses and purposes above stated and referred to, are hereby declared to have been so entrusted with and by the consent of this Conference and the several members thereof; and the delivery of such funds, for such uses and purposes is, by this Resolution ratified and con-. firmed.

“ ‘W. D. Fairchild
“ ‘H. W. McPherson
“ ‘A. M. Wells.’

“I am the Executive Secretary of the Preachers’ Aid Society and was connected with it in 1923. During the Bi-Conference movement of that year I think I was on the Board of Directors. The Preachers’ Aid Society gave funds toward the expenses of the Illinois Bi-Conference Movement, I think about $26,000. The contribution was made at the request of the Bi-Conference Movement and ivas a proportion of the expense allotted to the Preachers’ Aid Society. We have a record of the time and of the amounts contributed. I think the record is on the table. I have here two or three indications of drafts on us - for different amounts and receipts from the treasurer of the Bi-Conference Movement. These papers I had obtained from the files in the office of the Preachers’ Aid Society of which I have been secretary since 1928. Rev. H. C. Gibbs preceded me as secretary and he turned over the records of the office to me. I am now the official custodian of same. The papers I have here were turned over to me by Rev. Gibbs and are part of the files and records of the office. They have been there since I have been Secretary of the corporation. Apart from the papers I have some personal recollection of the payment made by the Bi-Conference Movement to the Preachers’ Aid Society. I made a contribution to the Bi-Conference Movement myself.

“I first saw the note of Mrs. McVay when I became Executive Secretary in 1928. It was in my safe under my custody and control and I have custody and control of other-pledges made. I do not now have.all the pledges as some have been paid but I still have some unpaid pledges. I know a number of pledges have been paid. I was a member of the Executive Committee of the Bi-Conference Movement and that committee had a meeting after the campaign closed. The meeting was held at Peoria, Illinois, and it took some action with reference to the pledges made in the campaign. Dr. Harry B. Lewis was Secretary and W. E. Shaw, Dr. McCarty and Dr. Parker were among those present at the meeting.”

Cross-Examination.

“The Year Book of the Illinois Annual Conference from which I read is not the original record but a printed copy of it. I have not seen the original record and never compared the printed copy with the original but I saw the paper in the Secretary’s hands and heard him read it. The Certificate referred to appears on page 296 of the Tear Book and the portion which I read into the record appears on page 337. The part I read is a part of the report adopted at the meeting. The reports are printed following the J ournal and not in the body of the Journal itself, but the action is referred to in. the Journal. I think there is something to identify this resolution as a report. I am a member of the Preachers’ Aid Society which is the plaintiff.”

“Mr. Beal: As to this witness, I desire to make a motion to exclude all of his testimony on the ground that he is a member of the corporation that is the plaintiff in the suit and I don’t believe a competent witness.

“Of my own knowledge I know that we were called on three or four times to make certain payments to the cost of the campaign. I think there was one demand for $400 and one for $1,400. I don’t remember the dates they were made. ’ ’

Be-Direct Examination.

“The Preachers’ Aid Society does not issue capital stock or pay dividends or profits. The membership consists of members of the Illinois Annual Conference. All the preachers of the Methodist Church in this Conference are beneficiaries under certain conditions, by order of the Conference and they become beneficiaries upon retirement. I am still active. If a minister is transferred he formerly lost his right to aid from the Conference from which he was transferred but in 1929 this rule was changed and he now receives aid for the years he spent in the Conference although subsequently he may have been transferred therefrom.

“Q. After receiving the pledges from the Bi-Conference Movement, was there any action taken with reference to the amount for the individual retired minister !

“A. We have continued to work with an eye to increasing from time to time and have been able to maintain the work because of the fund received at that time.

“The pledges were used to maintain what had been done formerly, by way of paying the retired ministers. If the amount contributed exceeded the amount sought to be raised for any purpose, the excess was used for that purpose, but in this case it did not exceed the amount sought to be raised.

“Q. I will ask you to state if you know whether the designated pledges were equal to or in excess of the proportionate amount of the Conference Claimants!

“A. It was not equal to it. I was a member of the Committee that made the distribution.

“If there was any difference,, it was made up by the general drive, and the organization received designated and undesignated pledges. I remember of my own personal knowledge when the action shown on page 337 of the Tear Book was taken and that is á true and correct account of it.”

All of the foregoing was submitted under objections. The Bi-Conference Movement is fully explained by appellees as follows: “This was essentially a money raising campaign inaugurated by the joint action of the Central Illinois Conference and the Illinois Annual Conference of the Methodist Episcopal Church. This campaign or movement, as it is interchangeably called, set up its own personnel and machinery for conducting this campaign. However, this Bi-Conference Movement was not directly connected with any organization save and except the two Conferences which sponsored it.”

It was to this voluntary organization as “a money raising campaign” that the $26,000 was contributed, as testified to by the witness Wells. There is no testimony as to the expenditure of any other item or thing in this record for the benefit of conference claimants or for the purposes for which this gift purported to be made, and we cannot hold this item as an advancement made or an expense of the trust incurred.

It was held in Augustine v. Trustees of Methodist Episcopal Society, supra, in this court:

“It is contended by appellees that the labors of Brown as pastor of the church in securing subscriptions enough to carry out the project constituted a sufficient consideration to support the promise for the subscription of the Augustines, and that therefore there could be no revocation after subscriptions to the amount of $5,000 had been obtained. Brown, it is urged, spent time and labor which belonged to the church, while he was upon an annual salary, and as the required $5,000 was all subscribed before the interview mentioned the attempted revocation came too late. In support of that contention the case of Kentucky Baptist Education Society v. Carter, 72 Ill. 247, is cited. We do not understand that case as going to the extent urged by counsel; but if it did, the latest expressions of our Supreme Court, as contained in the cases cited above, from the 93rd and 96th Illinois Reports, show a clear departure from it.”

All of the witnesses for appellees were beneficiaries under the fund to which the note in question purported to be a subscription. They were therefore incompetent to testify in this case (Cahill’s St. ch. 51, H 2; section 2, chapter 51, Smith-Hurd Rev. Stat.; Cronin v. Supreme Council Royal League, 199 Ill. 228), and proper objections were made to their testimony.

Appellees presented another note for $10,000 of similar form, executed by Effie C. McYay. She was 80 years of age when she died. There was quite a controversy in the testimony as to which of these notes she intended to leave to this charity, if she intended to leave either. She left an estate of about $5,000. She left a will executed November 14, 1928, giving all of her estate to her relatives.

It is the opinion of this court from the record that there was no consideration for the instrument in question and the judgment of the circuit court of Cumberland county is reversed.

Reversed.


author: Mr. Justice Niehaus

text:
    Thomas Spiers, Appellee, v. Anderson Motor Service Company, Appellant.
    Gen. No. 8,668.
    Opinion filed June 1, 1933.
    Hoopes & Pefferle, for appellant.
    C. A. Livingstone and L. E. Stone, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

Thomas Spiers, the appellee herein, brought this suit in the circuit court of Sangamon county to recover damages from the appellant, Anderson Motor Service Company, which he claims resulted to him from personal injuries he suffered in consequence of the collision of the automobile in which he was riding with the rear end of a trailer attached to a truck operated by the appellant, on the night of September 28,1930 upon and along the hard surfaced State Highway known as “Route 4.” The collision occurred one mile south of Virden.

The appellee alleges in the first count of his declaration which he filed in the cause, that:

“The defendant, by its duly authorized agent and servant was in the use, possession, and control of a motor vehicle known as a motor truck and trailer and was operating the same along a public highway known as Route 4 of the State System of Durable Hard Surfaced Roads in the State of Illinois. And it was then and there the duty of the defendant to use care and caution so as not to injure persons driving upon the highway, in the exercise of reasonable care for their own safety; but the defendant disregarding that duty and in the night time, at about 10 O’clock P. M. at a point about one mile south of the City of Virden, Illinois, the defendant, through its agent, carelessly and negligently stopped its motor truck with trailers attached and allowed them to remain standing on the slab of the highway without any lights thereon and without any means of warning travelers, and as the result thereof the defendant, through its servant, did then and there carelessly and negligently create a dangerous condition to persons traveling upon the highway.”

The second count charges that the collision occurred in consequence of appellant’s negligence in violating section 217 of the Motor Vehicle Act, Cahill’s St. ch. 95a, if 17, in operating its truck and trailers. The section referred to requires that:

■“When upon any public highway in this State, during the period from one hour after sunset to sunrise, every motor bicycle shall carry one lighted lamp and every motor vehicle two lighted lamps showing white lights, or lights of a yellow or amber tint, visible at least two hundred (200) feet in the direction toivards which each motor bicycle or motor vehicle is proceeding, and each motor vehicle or trailer shall also exhibit at least one lighted lamp which shall be so situated as to throw a red light visible in the reverse direction.”

To the declaration, the appellant pleaded the general issue and a special plea, to which the court sustained a demurrer.

The appellee was a witness in his own behalf and testified concerning the circumstances under which the collision occurred and his connection with the accident, as follows:

“I am 22 years old. I live in Springfield, Illinois. I assist my father who is a traveling salesman. I drive the automobile as he can’t. I have been working for him for six years. ... On the evening of September 28, 1930, I took Harry Herberger, his mother and sister, down to Girard. . . . Got back to Springfield about 6:30. . . . We left Springfield to go back to look for my watch about 7:15. After three hours I decided it was useless to try any more that night; and I thought we would come back in the day time. We started to go home and got to Girard and bought gas. . . . We left the filling station about 10:15 that night. Have been over that road several times and am familiar with it. I know there was a real sharp turn just before straightening away to the railroad. If I went east at that turn I would go on a dirt road and cross the railroad tracks. I drive between 30 and 35 miles an hour on a straightaway. This turn is abrupt and a narrow road and it is a blind turn and I slowed down to 20 miles an hour. I traveled this road once every two or three weeks for at least the last six years. I headed north towards Virden until I had the wreck. The Burlington train attracted my attention. I noticed it when we were about to go into the turn. It was to my right and south of the dirt road. As I traveled north toward the railroad track, I looked back two or three times. Harry said everything was all right but I didn’t take his word for it. I looked myself. I looked through the back door over my right shoulder. I was sitting on the left side of the car, at the wheel. Going down the straightaway I was traveling about 35 miles an hour. As I was nearing the railroad I saw a light, just like the sun, coming up over a mountain behind the horizon; just a glare of the light shot upward from some other light, I didn’t know what kind. I suddenly saw the truck about six feet in front of me. It was a very short space but it looked like a big box car with dust all over it to blend with the sky. There was no tail light, no lights flashing from the railroad, no bell ringing. When I saw this truck six feet ahead I put my foot on the brake, but it takes a second or two for you to get your foot off the gas and onto the brake and in that time I had gone the six feet and had a wreck. I was unconscious. I woke up in Dr. Blunk’s office.”

The appellee also testified that he was seriously and permanently injured in the collision.

There was a jury trial in the "case; and the jury found the appellant guilty and assessed the appellee’s damages at $500. Judgment was rendered upon the verdict; and this appeal is prosecuted to reverse the judgment.

The contentions of appellant for reversal of the judgment are as follows, namely:

“That there was no evidence of negligence on the part of appellant’s servants; that appellee was guilty of contributory negligence as a matter of law; that the failure, if any, on the part of appellant to have a red light burning on the rear of the trailer was not the proximate cause of the collision in question; that the instructions given for appellee were erroneous; that the court erred in refusing to admit in evidence the agreement in writing mentioned in the special plea; that the instructions tendered by appellant stated correct rules of law applicable to the case and that it was error to refuse said instructions and that the special plea filed by appellant was good in law and it was error to sustain the demurrer to this special plea and constitutes reversible error.”

These contentions are the same as appellant’s contentions in the case of Herberger v. Anderson Motor Service Co., 268 Ill. App. 403, passed upon by this court, which was a suit to recover damages brought by Herberger against the appellant for injuries suffered by him, resulting from the same collision; and appellant’s contentions were passed upon in detail by this court, and were held to be legally insufficient to justify a reversal of the judgment in that case. For the reasons stated in the Herberger case, we again hold that they do not constitute a legal basis for reversal of the judgment in this case. The judgment is, therefore, affirmed.

Affirmed.


author: Mr. Presiding Justice Wolfe

text:
    Mabel Bennett, Appellee, v. Illinois Power and Light Corporation, Appellant.
    Gen. No. 8,519.

      Opinion filed May 19, 1933.
    Rehearing denied June 21, 1933.

      Thomas J. Welch and E. Bentley Hamilton, for appellant.
    Gregg A. Young and James H. Andrews, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The appellee, hereinafter called the plaintiff, secured a verdict and judgment for $9,600 against the appellant (hereinafter called the defendant) as damages for personal injuries sustained from the overturning on a public highway of a buggy in which she was riding. The said buggy was drawn by a horse which was driven by her son, Vernon Bennett.

The plaintiff based her cause of action on two charges separately alleged in two counts. It is averred in the first count of the declaration that her injuries were caused by the horse becoming frightened at three spools of electric wire negligently and unlawfully placed in the highway, and in the second count “placed and left” in the highway by the defendant, contrary to the statute. The defendant assigns as error that there is a variance between the charge of negligence and unlawfulness of the two counts and the proof offered by the plaintiff. The question arises: “Is the plaintiff now attempting to recover on a ground of negligence or unlawfulness not charged in the first count of the declaration?” That there is a difference between variance and the rule that recovery may be had only on the negligence charged in the declaration, is forcibly pointed out in the cases of Peterson v. Sears, Roebuck & Co., 242 Ill. 38, and Buckley v. Mandel Bros., 333 Ill. 368.

The first count alleges that the plaintiff was riding, in an easterly direction, in a buggy along a public road in Neponset township in Bureau county, on June 10, 1929; that shortly prior to this occasion the defendant negligently, carelessly and unlawfully placed upon the south side of the road three spools of wire, which were round in form and about four feet' in diameter, and aluminum in color; that the spools stood edgewise in the grass and weeds along the south side of the beaten track and 12 or 15 feet north from the hedge fence along the south side of the road; that the horse became frightened at the spools, rah away and overturned the buggy, etc.

The second count avers that the defendant negligently placed the spools upon the south side of the beaten track of the road in the weeds and grass along the roadway; that they were an obstruction to the public road and left there by the defendant and remained there contrary to the statute in such case made and provided; that the defendant placed the spools on the side of the road in violation of the statute; that because of the violation of the said statute by the defendant, the horse became frightened, ran away, and as a result thereof the plaintiff sustained the injury complained of, etc. Both counts allege that the horse was an ordinarily gentle one; that the spools were calculated to frighten an ordinarily gentle horse; that the plaintiff was in the exercise of due care, etc.

The defendant filed the plea of general issue and gave notice that it would prove by virtue of the authority granted to it by the Illinois Commerce Commission, that the defendant was authorized and directed to locate, erect, and construct steel towers with double support transmission lines from La Salle to Kewanee along the highway of Neponset township at the point where the plaintiff was injured; that said order was entered by said commission on October 26, 1927, and on the same date a certificate of convenience and necessity was granted by said commission to the defendant authorizing the construction and maintenance of said lines; that at the time the spools of wire were so placed in the highway, the defendant had, by leave and license of the owner of the land abutting upon the highway in question, the right and authority to place spools of wire there in the highway; that said right was in writing and constituted a right of way easement; that said easement conveyed to the defendant the perpetual right to erect, maintain and operate a line of steel towers and wires upon the land so conveyed; that the easement granted included the right to transmit electric energy over said lines, to enter said premises for the purpose of erecting steel towers and supports therefor, stringing wires on the towers, repairing or removing the same, and the right to trim or remove trees, etc.

At the close of the plaintiff’s evidence, the defendant made a motion for a peremptory instruction on the alleged ground of material and substantial variance between the allegations of the declaration and the proof. The instruction was directed solely to the first count and stated the ground of variance tobe: The declaration alleging that the defendant negligently and carelessly and unlawfully placed upon the south side of the public road certain spools of electric transmission wire and the proof offered by the plaintiff having failed to show that said spools were unlawfully placed upon said road and having failed to show that the defendant violated any law or statutory provisions the defendant not guilty under the first count; this with reference thereto.” The motion being overruled and the instruction refused by the court, the defendant made a motion that the court instruct the jury to find motion with instruction was overruled. The defendant then made a motion that the court instruct the jury to find the defendant not guilty under the second count on the ground of a material variance between the declaration and the proof, because the plaintiff failed to prove that the spools were placed and left on the roadside contrary to any statute of the State of Illinois, or contrary to' any law of Illinois. Said motion was overruled and plaintiff then submitted the usual motion and instruction to find the defendant not guilty, which was also overruled. Separate motions were then made by the defendant to find the defendant not guilty under the first and second counts, which motions were likewise overruled.

The defendant, as a part of its defense, proved that it had on October 26, 1927, been granted authority by the Illinois Commerce Commission to locate, erect and control steel towers with transmission lines along the highway in question at the point where the plaintiff was injured; that on the same date a certificate of convenience and necessity was granted by said commission authorizing the construction and maintenance of said lines; also, that the defendant was granted an easement by the owner of the fee of said highway, all as is alleged in the notice to be offered by the defendant under its plea of the general issue. The defendant introduced evidence tending to contradict the- plaintiff’s case on the merits, and proved that it placed the spools on the highway for the purpose of stringing the wire on the towers standing on the land, the owner of which had granted to the defendant the easement aforesaid. The motions made by the defendant at the close of the plaintiff’s evidence were all again made by the defendant at the close of all of the evidence in the case, and overruled by the court. The only error which the defendant may now assign in this court, because of the overruling of said motion is, that the trial court erred in overruling the motions made at the close of all of the evidence in the case. Gilbert v. Watts-DeGolyer Co., 169 Ill. 129.

In general, the defendant argues that the proof fails to show that the spools were illegally, or without right, placed in the highway, and also specifies that there is a variance, or failure of proof, because the first count alleges that the spools were “unlawfully” placed in the highway and there is no evidence proving this particular allegation. After disposing of this specific objection directed to the first count, the general proposition of the defendant that since it had the right to place the spools in the highway it cannot be held liable because the spools were frightful to horses will be considered.

The allegation of the first count that the spools were unlawfully placed in the highway is a legal conclusion of the pleader; there are no facts'alleged in the first count of the declaration from which the inference can be legitimately drawn that the action of the defendant placing the spools in the highway was unlawful, or a nuisance per se. Lefkovitz v. City of Chicago, 238 Ill. 23; Nance v. Georgia, C. & N. Ry. Co., 35 S. C. 307, 14 S. E. 629. If the evidence tends to support the other allegation of count one that the placing of the spools in the highway was negligently and carelessly done by the defendant, then the allegation that they weré unlawfully placed in the highway by defendant may be treated as surplusage and be disregarded. Guianios v. De Camp Coal Co., 242 Ill. 278. There is no variance unless, it is material and substantial. Chicago West Division Ry. Co. v. Mills, 105 Ill. 63.

It will be noticed that the allegations of the first count are very general and whether the alleged negligence of the defendant consisted in placing the spools too near the traveled part of the highway or consisted in the manner of their arrangement in position, or piling on the highway, was left as a matter to be determined by the evidence. The defendant submits the following as a proposition, or a rule of law, governing the case: “The placing of the spools on the side of the road by the defendant having the right and authority to do so, even though calculated to frighten a reasonably gentle horse, did not constitute negligence and is not the standard by which the liability of the party placing them is to be measured.”

It is an elementary principle of law that to constitute negligence it is not necessary that the act or omission complained of should involve any act of illegality; also, that negligence may consist of doing a legal act in a careless or negligent manner. Therefore, it is clear that the proposition of the defendant cannot be accepted without amendment embodying the limitation that the assumed act of the defendant must have been done in a reasonably prudent and careful manner. Cases aptly in point illustrating this phase of negligence and its inclusion as a necessary element of a definition of actual negligence, under the hypothesis are found in the reports. Thus, in the case of Clark v. Hart, 98 Ky. 31, 17 Ky. L. Rep. 604, 32 S. W. 216, a declaration, upon demurrer thereto, was held insufficient because it did not allege at what distance from the traveled part of the highway, the object which frightened a horse thereon, had been placed by the defendant. In Valley v. Concord & M. R. R., 68 N. H. 546, 38 Atl. 383, the declaration alleged that the defendant negligently and carelessly placed, piled, scattered about, close to a public highway, planks, timber and lumber, and it is held in that case as follows: “One who negligently places near a highway an object calculated to frighten horses lawfully traveling thereon, or who negligently conducts his lawful business in such manner as to frighten them, is liable for the consequences.” In the case of Nye v. Dibley, 88 Minn. 465, 93 N. W. 524, the Supreme Court of Minnesota says: “Defendants were engaged in a public work upon the highway under a contract with the public authorities, and had the undoubted right to make such reasonable use of the highway as was necessary in carrying forward the work. But they had no right to its exclusive use, and were bound “so to use it as not to interfere unnecessarily with public travel thereon. They had the right to deposit upon it the material used in their work, and at an accessible and convenient distance from the point where the work was being performed; but they were bound so to deposit and place it as not to render the use of the highway by the public dangerous and unsafe, and to exercise reasonable care not to cause horses of ordinary gentleness to become frightened. The action is not founded on a claim that the act of defendants amounted to a nuisance in law, but upon the contention that they were negligent as to the manner in which they exercised a legal right in respect to depositing the material in the highway. . . . While they had a right to deposit the material in the highway near the place where the work was being performed, they were bound to respect the rights of the public as to the use of the highway, and their rights in the premises were as much entitled to consideration as the convenience of defendants.” To the same effect is the case of Jensen v. Oconto Falls, 186 Wis. 386, 202 N. W. 676.

In the case of Macomber v. Nichols, 34 Mich. 212, Chief Justice Cooley decided that it was error for the trial court in its instructions to the jury to permit the right of recovery to turn on the question whether or not a steam engine rightfully on the highway was calculated to frighten horses, but that the question is one of fact of reasonable use and reasonable care for the jury to decide. Cases sustaining this rule of law are: Carlson v. Town of Greenfield, 130 Wis. 342, 110 N. W. 208; King v. Swanson, 216 Ill. App. 294; Boos v. Township of Northfield, 186 Mich. 386, 152 N. W. 1042. In an action involving the question whether articles are negligently placed in a highway and whether they are likely to frighten horses of ordinary gentleness, are questions of fact fairly and properly to be submitted to the jury. Boos v. Township of Northfield, supra; Carlson v. Town of Greenfield, supra.

The highway in the case at bar was about 58 feet wide and the traveled part thereof was graded on both sides and was about 18 feet wide, thus leaving the grass banks on both sides of the highway about 18 to 20 feet wide. These banks were covered with growing grass and weeds about a foot high. On the south side of the highway there was a hedge fence which marked the south line of the highway. The horse was being driven in an easterly direction when it became frightened at the three spools which had been placed by the defendant on the south side of the highway. There is testimony in the record tending to prove that the spools were situated about 18 feet from the hedge fence and about four feet from the beaten track of the highway. Photographs were introduced in evidence showing the position of the spools on the highway. The spools were placed in the highway by the defendant in an irregular row about 12 feet apart. They were about 55 inches high, two feet wide, and the ends were painted aluminum in color. The accident occurred on June 10, 1929, at about 8 o’clock p. m., when it was getting dusk. Plaintiff also proved that other gentle horses had become frightened at the three spools thus standing in the highway.

It is not contended that the plaintiff was not in the exercise of due care, nor that the horse was not an ordinarily gentle one. Under the rules above stated, and the facts above enumerated and as shown by the evidence, the trial court did not err in overruling the motions of the defendant asking for a verdict in its favor under the first count of the declaration. Thayer v. Bolender, 250 Ill. App. 16; Harmon v. Peoria Ry. Co., 160 Ill. App. 458; Carlson v. Town of Greenfield, supra; Berg v. Auburn, 140 Wis. 492, 122 N. W. 1041; Tilton v. Inhabitants of Wenham, 172 Mass. 407, 54 N. E. 514.

The second count charged in general terms, and somewhat loosely, that the defendant placed and left the spools in the highway contrary to the statute. Brickell v. Williams, 180 Mo. App. 572, 167 S. W. 607. The plaintiff introduced evidence tending to show the length of time the spools were permitted to remain in the highway by the defendant. The evidence was admitted without any objection. Defendant’s peremptory instruction, directed at the second count, stated that the second count alleged that the spools were “placed and left” in the highway by the defendant. Under the allegations of the second count, the construction given to it by the defendant, and the proof made by the plaintiff, we think that the question of fact presented was, whether the defendant left the spools in the highway an unreasonable length of time, although the defendant may have had the right to place the spools in the highway. Hoadley v. People, 23 Ill. App. 39; Nelson v. Fehd, 104 Ill. App. 114. It might be that the defendant had the lawful right to place the spools in the highway, but it could not use the highway as a place of storage for the spools of wire. This proposition is sustained by the authorities, including those decisions cited by the defendant on the general rule that an owner or occupant of land abutting on a public road may use the road temporarily, in such manner as not to unnecessarily interfere with, or impede public travel, for necessary and legitimate purposes to carry on the business conducted on the land. Judd v. Fergo, 107 Mass. 264; Golden v. Chicago, R. I. & P. Ry., 84 Mo. App. 59; Boos v. Township of Northfield, supra; Berg v. Auburn, supra; Elam v. City of Mt. Sterling, 132 Ky. 657, 117 S. W. 250; City of Elgin v. Thompson, 98 Ill. App. 358; Tolman & Co. v. City of Chicago, 240 Ill. 268; Sear v. City of Chicago, 247 Ill. 204.

It also remains to be determined if there is evidence fairly tending to show that the action of the defendant leaving the spools in the highway was a violation of the statute, and that whether there was some natural causative connection between the alleged violation of the statute and the frightening of the horse. Cleveland, C. C. & I. Ry. Co. v. Wynant, 114 Ind. 525, 17 N. E. 118. We do not think that the second count, under its allegation and the duty alleged breached, is a concurrent charge of negligence under the common law and a failure to observe the statute, but that it is solely a charge of negligence based on the statute, and the declaration is so understood by the plaintiff and the defendant.

The plaintiff relies on section 5 of the Illinois Revised Statutes, Cahill’s St. ch. 121,1f 167, the pertinent part of which is as follows: “If any person shall injure or obstruct a public road by felling a tree or trees in, upon or across the same, or by placing or leaving any other obstruction thereon, ... he shall forfeit for every such offense a sum not less than three dollars nor more than ten dollars.” This section has been so construed by our courts so as to carry out the intention of the legislature that the whole width of the highway shall remain free from any obstructions. Boyd v. Town of Farm Ridge, 103 Ill. 408; Seidschlag v. Town of Antioch, 207 Ill. 280; Scott v. Town of New Boston, 26 Ill. App. 108. One who places an obstruction in any part of a highway, even if done lawfully initially, must use reasonable care where the obstruction is placed and the time it remains in the highway under the circumstances and necessities governing the situation. That this is the rule at common law and the purpose of the statute is clear. When the graded part of the highway in question was muddy, the travelers in vehicles used the grass banks to drive upon. That this was their legal right and not to be unduly interfered with cannot be disputed. Neale v. State, 138 Wis. 484, 120 N. W. 345; Johnson v. Whitefield, 18 Me. 286, 36 Am. Dec. 721.

Under the peremptory motion of the defendant, the evidence must be considered in the light most favorable to the plaintiff. It can be fairly said'that the evidence shows that the spools were left by the defendant in the highway from 10 days to two weeks. Whether this was an unreasonable length of time under the circumstances appearing in evidence was a question of fact for the jury. Davis v. Thompson, 134 Mo. App. 13, 114 S. W. 550; Nelson v. Fehd, supra; Jensen v. Oconto Falls, supra; McCarty v. Brookline, 114 Mass. 527. This court holds that one who leaves an obstruction in a public highway an unreasonable length of time, notwithstanding his right to use and obstruct a part of the highway in a reasonable manner for a temporary period of time, and not unduly interfering with or impeding traffic on the highway, is liable for the legal consequences arising from his action of leaving the obstruction in the highway. Further, that such action is a violation of the statute. There is evidence in the record that the plaintiff sustained the injuries complained of resulting naturally and proximately from the violation of the statute by the defendant, and, in our opinion, this made out a prima facie case for the plaintiff. Grayhek v. Stern, 154 Ill. App. 385. We do not think that the court erred in submitting the case to the jury under all of the evidence in the case.

The defendant assigns as error that the trial court permitted the plaintiff to prove that other gentle horses were frightened by the spools standing in the highway. While the authorities are not in accord on the question of the admissibility of such evidence, it has been held in this State that such testimony is admissible. Galt v. WOliver, 103 Ill. App. 71. These cases are supported by the general rule laid down in the cases of Moore v. Bloomington, D. & C. R. Co., 295 Ill. 63 and City of Bloomington v. Legg, 151 Ill. 9. It may also be stated that the defendant, in its argument complaining of instructions given for the plaintiff, contends that it was essential that the plaintiff prove that the defendant knew, or by the exercise of ordinary care could have known, that the spools were calculated to frighten gentle horses. If this be true (which we do pot decide) then the cases of Galt v. Woliver and City of Elgin v. Thompson, supra, are in point. In’the cases so cited it is held that proof of similar accidents are admissible to prove an allegation of the declaration of notice or knowledge on the part of the defendant of the dangerous nature of the obstruction in the street. See, also, Phelps v. Winona & St. P. R. Co., 37 Minn. 485, 35 N. W. 273, and Jensen v. Oconto Falls, supra. If the defendant’s view of the law is correct that it was essential for the plaintiff to prove that the defendant had knowledge that the spools were frightful in character to gentle horses, then it is now too late, after verdict, to complain that the declaration contains no allegation of such knowledge by the defendant. Sargent Co. v. Baublis, 215 Ill. 428.

One of the defendant’s witnesses was J. Harvey Irwin, the sales engineer of the company which manufactured the wire and delivered the wire on the carted spools to the defendant. He testified that, “In the scope of my work as sales.engineer, I am familiar with the manner in which these reels are handled and used in the transmission line construction.” This answer was stricken by the trial court on motion of the plaintiff as being immaterial. Thereupon, the defendant made an offer of proof as follows: “We now offer to prove, and aver that if permitted to do so, we will prove that, by the witness who has been sworn and by other witnesses, that many hundreds of reels of similar size and color were placed along and upon public highways in the course of the construction of the transmission lines upon steel towers similar to those erected and constructed by the defendant along1 the place of the accident, and that such reels wére placed in and upon the public highway at different points; arid that such custom and practice was in accord with standard and approved engineering and construction methods and practice; that reels had been similarly placed at other points along the public highways and in the public highways of Bureau county, La Salle county, Henry county, Stark county, Putnam county, Peoria1 county and other places in the State of Illinois by this and other companies engaged in similar work; that where distribution lines are located in or adjacent to roads for serving rural lines where the power company does not own a private right-of-way, they are built at or along the fence line, or many times in the public road, and that under such conditions the reels are placed in the road; and that this is according to good, standard engineering practice and methods.

“We further offer to prove, and aver that we will prove, if permitted to do so, by Mr. J. H. Irwin, the witness now on the stand, that he is and for fifteen years has been engaged as a sales engineer in selling and shipping these reels throughout the State of Illinois and in the counties hereinbefore mentioned, and that within his knowledge no other accident in the nature of or resulting from a run-a-way horse or frightened horse has ever occurred by reason thereof.

“And we also offer to prove, and will prove, if permitted to do so, by the general construction superintendent of this defendant company and by other of its employees and agents and servants, that this defendant constructed one hundred miles or more of transmission lines, and that that line in question from Gfalva to Kewanee, to Seneca and La Salle, involved seventy miles or more of such construction, and that approximately eight hundred reels were used in the course of such construction, and that seventy-five per cent of such reels were placed adjacent to or in and upon public highways, and that no other accident involving injuries from a run-a-way or frightened horse ever occurred as a result thereof.

“We also offer to show that in addition to reels or spools, other materials and supplies, gravel, cement, steel, sand, water barrels and insulators in crates were also placed along or adjacent to public highways in the course of such construction work, according to good and approved engineering standards and practice, and that no accident resulting from a run-a-way or frightened horse occurred by reason thereof.

“We make one more offer to prove that in the construction of this same high tower line approximately a year or more before the accident in question, that reels were placed at this same point as the reels were placed which were involved in this accident, or approximately the same point in the public roadway and adjacent to the fence line, which were used for the stringing of the wires on the south arm or arms of said towers, which were on the same road along which the plaintiff was driving at the time she claims to have received the accident in question, and that no accidents from run-a-way or frightened horses occurred by reason thereof.” (Offer excluded by trial court.)

The evidence of the defendant tends to prove that the spools were placed by it near the hedge fence on the south side of the road and not near the beaten track of the highway. Was it proper in this case for the defendant to prove the custom or common usage of placing spools of wire in the highway! The evidence was not admissible under the second count which charged that the spools were left in the highway contrary to the statute. We do not understand that the customary way of doing an act may be shown to furnish a test of due care on the part of a defendant where the usage is contrary to law. Hopper v. Sage, 112 N. Y. 530, 8 Am. Rep. 771; Southwestern Freight & Cotton Press Co. v. Stanard, 44 Mo. 71.

We do not think it necessary to decide if it is the rule in this State that evidence of the general custom of doing an act without injury to others, is competent on the question whether the defendant was in the exercise of due care in the performance of the act complained of in the declaration. Evidence is not admissible as to the customary manner of doing acts or carrying on a business when' such manner is a matter of common knowledge. Pulsifer v. Berry, 87 Me. 405, 32 Atl. 986; Kolsti v. Minneapolis R. Co., 32 Minn. 133, 19 N. W. 655; Boyce v. Wilbur Lumber Co., 119 Wis. 642, 97 N. W. 563. We think that it is a matter of common knowledge that public service companies and highway authorities place material, such as lumber, fuel, barrels, poles and spools of wire on the side of the highways of this State where such material is used, or intended to be used on the highways or on the land abutting thereon.

We do not think it is competent evidence for the defendant to prove that the spools placed adjacent to the highway had not resulted in accidents caused by run-a-wáy horses. Hodges v. Bearse, 129 Ill. 87; Keith v. Sands & Maxwell Lumber Co., 88 Mich. 172, 50 N. W. 130; Lutton v. Town of Vernon, 62 Conn. 1, 23 Atl. 1020; Mobile & O. R. Co. v. Vallowe, 214 Ill. 124.

The last paragraph of the defendant’s offer of proof is not a clear and specific offer to prove that other gentle horses were not frightened by the spools in the highway. Such proof must be limited in scope to conditions similar to those in question and not one that no other accidents from frightened horses had occurred because the spools were in the highway. The witnesses may not have had any knowledge that other accidents had occurred because horses became frightened at the spools in the highway, but this would not prove, nor was it a definite offer to prove that the spools were not frightful to gentle horses under the same or similar circumstances existing, as shown by the evidence, when the horse of the plaintiff became frightened at the spools. Thus in the case of Bloor v. Town of Delafield, 69 Wis. 273, 34 N. W. 115, evidence that numerous horses had been driven past an object in the daytime without becoming frightened was not held admissible for the defendant in an action for injuries caused by fright of a horse at the object in the highway while driven after dark as this evidence had no tendency to show that even quiet horses would not have been frightened at the object after dark when said object might appear distorted and unnatural. Evidence of this character must not be too remote. Cunningham v. Clay Township, 69 Kan. 373, 76 Pac. 907; Gould v. Hutchins, 73 N. H. 69, 58 Atl. 1046.

The offer to prove the general custom of placing reels in and alongside of the highways of this. State was very broad and included» the offer to prove that the defendant had placed spools thus on former occasions. Defendant could not excuse its alleged negligence by proving that it has been negligent on other occasions. Sewing v. Harrison County, 156 Iowa 229, 136 N. W. 200.

Defendant also assigns as error the refusal of the trial court to admit in evidence certain time sheets of the defendant. The sheets are not intelligible without the aid of parol testimony, but it is contended by the defendant that they prove the length of time the spools remained in the highway. The evidence shows that the time sheets are in the handwriting of one E. Thicksten, but there is no testimony as to the whereabouts of Thicksten except the testimony of a former employee of the defendant. He testified that he does not know where Thicksten is. There is no evidence in the record that the entries on the time sheet are true, or correct, or accurate; no testimony that the entries were made by the defendant in the usual and regular course of its business by one whose duty it was to make the entries; no proof that the entries relied upon were entered contemporaneously with the acts alleged purporting to show the length of time the spools remained in the highway. In re Estate of Moorhouse, 249 Ill. App. 432. The court did not err in excluding the time sheets.

Many objections are made by the defendant to the instructions given by the court on behalf of the plaintiff, and it is further contended that the trial court erred in modifying and refusing instructions offered by the defendant. After carefully considering the instructions given, we have arrived at the conclusion that the instructions, as a series, and under the evidence before the jury, were not misleading or conflicting and presented to the jury the law applicable to the case fairly and clearly. One of the objections made to some of the instructions is, that they assume the negligence of the defendant as charged in the declaration. We do not think those instructions are subject to the objection. Those instructions did not direct a verdict, and the jury was clearly and repeatedly told in other instructions given that the plaintiff must prove the allegations of negligence in her declaration by a preponderance of the evidence before she would be entitled to a verdict.

It would be impossible without extending this opinion beyond all reasonable length, to discuss all the reasons mentioned by the defendant, why, in the opinion of its counsel, there was error by the trial court in giving, refusing and modifying instructions. Many of the objections urged against the instructions are disposed of by the law as declared in this opinion. The error assigned by the defendant that there was reversible error by the trial court in giving, refusing and modifying instructions, cannot be maintained.

It is further argued by the defendant that there is reversible error appearing in the record because of the remarks made by the counsel for the plaintiff during the trial and in his closing arguments to the jury. It seems plain from the bill of exceptions that some cause of irritation existed between opposing counsel in the case which led to a few unjustifiable remarks of counsel for the plaintiff, reflecting on the motive of the attorney for the defendants in his manner or purpose of offering testimony. Upon immediate protest and objection by defendant’s attorney, the objectionable remarks were stricken from the record. The said remarks do not reflect on any of the witnesses of the defendant nor on their testimony. Some of the objectional remarks used by the plaintiff’s attorney were changed to milder terms when objected to by the defendant’s attorney.

Extracts of the argument made by the attorney for the plaintiff in Ms closing argument to the jury are before us in the record. The entire argument made by the plaintiff’s attorney is not before us, and it appears from the extracts that the attorney used words not warranted by the evidence, but that his remarks were interrupted by objection of the defendant before the sentences of plaintiff’s attorney were completed. While these remarks of the attorney for the plaintiff are subject to criticism, we do not think they were of such a nature as to prejudice the jury against the defendant so as to justify a reversal of the case. Kreeb v. Lake Erie & Western R. Co., 211 Ill. App. 630.

After .a consideration of the whole record, we are of the opinion that the evidence supports the verdict and there is" no reversible error in the case. The judgment of the lower court should be and is hereby affirmed.

Judgment affirmed.