text:
    Hartford Live Stock Insurance Company, Appellant, v. Railway Express Agency, Inc., Appellee.
    Gen. No. 37,057.

      Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    Myers & Snerly, for appellant.
    Cutting, Moore & Sidney, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

Plaintiff, Hartford Live Stock Insurance Company, filed an amended declaration consisting of three counts in its action in case against defendant, Railway Express Agency, Inc., for damages of $3,000' for injuries resulting in the death of a cow being transported from Huntington, New York, to St. Louis, Missouri. General and special demurrers were filed which were sustained to all counts of the declaration, and plaintiff electing to abide by its declaration, the court ordered the suit dismissed and entered judgment against it for costs. This appeal followed.

Plaintiff in the first count of its declaration alleged defendant was a common carrier for hire from the point of shipment to destination; that the shipper delivered to defendant at Huntington, New York, October 3, 1930, a fine blooded, registered Jersey cow for shipment over defendant’s railway, consigned to the National Dairy Show at St. Louis, Missouri; that at the time of the delivery to defendant the cow was in good, sound, normal condition; that after delivery of the animal to defendant she was under its absolute control to be safely and securely delivered at destination; that at the time of the delivery of the cow to defendant the latter required the shipper to declare the value thereof and the shipper declared same as $3,000, whereupon defendant collected from the shipper $60 as the usual customary express charge and rate, and an additional amount of $58.50 based on the declared value; that the shipment was not accompanied by a caretaker or by any agent or representative of the shipper, but while in transit was under the sole control, supervision and care of defendant; that defendant did not safely and securely transport and deliver the cow to the consignee at destination, but on the contrary, notwithstanding its duty as a common carrier to safely and securely transport, the animal was when delivered at destination in an injured condition without fault or negligence of plaintiff or the shipper; and that the cow received such injuries while in transit that it thereafter died October 10, 1930, as a direct result of same.

It was further alleged that the cow was insured under a policy of insurance issued by plaintiff to the shipper which was in force, and which provided that upon payment of the loss thereunder and its acceptance by the shipper he thereby assigned to plaintiff and the plaintiff thereupon became subrogated to all of the shipper’s rights and claim against defendant to the extent of such payment; that plaintiff, subsequent to the loss, paid the shipper $3,000, the value of the cow, and the shipper assigned to plaintiff on January 10, 1931, all his right, title and interest in and to his claim against defendant for the damage to the cow arising out of its failure to perform its duty as a common carrier toward the shipper and to transport the cow carefully and deliver the same in good condition to the consignee at destination, and that plaintiff by reason of such assignment is the actual bona fide owner of such claim for damages against defendant; and that plaintiff as assignee of the shipper has heretofore presented to defendant its written claim for damages, together with all proofs as required by law, and demanded of defendant payment thereof, which it wilfully failed and refused to make.

The second count of the amended declaration is identical with the first, except that it is grounded upon the general negligence of defendant in failing to perform the duty imposed upon it at common law to safely transport the cow.

The third count of the amended declaration is identical with the first and second counts, except that specific negligence is alleged on the part of defendant in injuring and maiming the animal while in'transit and under its sole control.

Defendant’s general demurrer was in the usual form and the allegations of its special demurrer were as follows:

“And the defendant shows to the court the following causes of demurrer to the said amended declaration and each count thereof, that is to say, that the plaintiff has not complied with section 32 of the Practice Act, in that it has failed to attach to the amended declaration a copy of the instrument sued upon, to-wit, the Uniform Contract for the transportation of other than ordinary livestock, which has been filed with and approved by the Interstate Commerce Commission and which by virtue thereof has the force and effect of a statute; and also that the said amended declaration and each count thereof is in other respects uncertain, informal and insufficient, etc.”

Plaintiff contends that where a duty exists by law and a party contracts for its performance, suit may be brought either upon the contract or in case for the nonperformance of the duty imposed by law, and that where damage is sustained to livestock while being transported by a common carrier, the shipper may, regardless of the existence of a special contract, have his action on the case for damage for the negligence of the carrier in the nonperformance of the duty imposed upon it as such common carrier at common law; that the present suit not being instituted upon the contract, but being a tort action in case for the nonperformance of the duty imposed by law on defendant, a common carrier, to safely carry the animal, section 32 of the Practice Act, Cahill’s St. ch. 110, f 32, requiring that in a suit brought on a written instrument a copy of such written instrument be filed with the declaration, has no application; and that since the shipment was not accompanied by any representative of the shipper but was under the sole care and charge of defendant, and no one except defendant would or could have any knowledge or means of proof as to what happened in transit to cause the injuries complained of, the first count of the amended declaration alleging delivery to defendant in good condition and delivery by it at destination in an injured and damaged condition, and its failure to perform the duty imposed upon it at common law to safely carry, states a sufficient cause of action; that the second count alleging generally the negligence of defendant in failing to perform the duty imposed .on it by law also states a g’ood cause of action; and that the third count alleging specific negligence of defendant in injuring, crippling, maiming and breaking the bones of the animal while in transit and under its sole control also states a sufficient cause of action.

Defendant’s theory is that under the Interstate Commerce Act, and the amendments thereto, it was required to file with the Interstate Commerce Commission a uniform livestock contract declaring the rates, tariffs and conditions for the transportation of other than ordinary livestock; that an interstate shipment of livestock could only be made upon the execution of such a uniform contract and subject to the terms thereof; that the filing of the uniform contract with and its approval by the commission gave it the force and effect of a statute; that any action against defendant must be predicated upon such contract entered into between defendant and the shipper; that, inasmuch as plaintiff failed to attach a copy of such uniform contract to its declaration pursuant to section 32 of the Practice Act, it is precluded from maintaining its action; and that the Interstate Commerce Act, including the Carmack and Cummins amendments thereto, abrogates the common law right of recovery.

Defendant concedes that at common law a shipper could elect to sue either in tort or on his contract for damage or injury to the shipment while in transit, and that the counts of the declaration in the instant case state a good common law cause of action. It must also be conceded that if plaintiff’s right to bring a common law action has not been abrogated by the Interstate Commerce Act, as amended, plaintiff was not required under the law to attach a copy of the shipping contract to its declaration as provided in section 32 of the Practice Act.

While it does not appear in the record, defendant exhibits in its brief a copy of the Uniform Live Stock Contract for the Transportation of Animals other than Ordinary Live Stock, filed by it with the Interstate Commerce Commission, which states inter alia that “the shipper agrees that as a condition precedent to recovery hereunder for loss or injury or damage to or delay in delivery of this shipment, such loss, injury, damage or delay shall be proved by the shipper to have been caused by negligence of the carrier.”

The settled rule as to the common law liability of a common carrier in connection with the carriage of livestock where the same is in the sole charge of the carrier and not accompanied by the shipper, or his agent, is that such carrier is charged with any loss occurring thereto which cannot be attributed to an act of Gfod, the public enemy or the inherent vices or propensities of the animals themselves, and that a prima facie case of negligence of the carrier is made by proof of delivery to the carrier in good condition and delivery by the carrier at destination in an injured condition. The burden is then upon the carrier to show that the loss was occasioned by one of the excepted causes and not through its negligence.

Plaintiff insists that it is not provided in nor contemplated by the Interstate Commerce Act, or any of its amendments, that it should be driven to declare upon a shipping contract that contained an illegal and void stipulation requiring it, as assignee of the shipper, to prove as a condition precedent to recovery the overt act of negligence of the carrier causing the loss or injury.

Did the Interstate Commerce Act, including the Carmack and Cummins amendments, abrogate the right of a shipper to proceed against the carrier in a tort action based upon its common law liability? If it did not the trial court erred.in sustaining* the demurrer to plaintiff’s declaration. We have carefully examined every case cited by defendant and they all seem to shoot wide of the mark. It has not called our attention to any case that points out, nor does its brief enlighten us how or in what manner or in what provision of the Interstate Commerce Act, or the amendments thereto, the duty theretofore imposed by law upon carriers of interstate shipments was abrogated, nor does it point out any provision of the act that requires the shipper to bring his action on the contract and deprives him of his right of action for default of defendant in its common law duty as a common carrier.

We have carefully searched the act and its amendments, and are unable to find any provision that sustains defendant’s contention that plaintiff was restricted under the act to an action on the shipping contract. On the other hand, the Carmack amendment (sec. 20, par. 11, title 49, p. 87, United States Code Ann.; sec. 8604a, U. S. Compiled Statutes 1918), specifically states that “provided further, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under the existing law. ...”

The question presented for our determination has been passed upon so many times by the Supreme Court of the United States, and the courts of last resort of many of the States, that it would seem to be no longer in doubt.

It is urged by plaintiff that the only modification made by the Carmack amendment in the common law liability of carriers was to increase the liability of the initial or receiving carrier by making it liable for loss occurring on the lines of connecting carriers to which it may have delivered the shipment, as well as its own. We agree that the main purpose of that amendment is as contended, and that it was enacted to enable the holder of a bill of lading to sue the initial carrier for any loss or damage to property suffered on any part of a through route, and thereby relieve such holder from the necessity of searching out and proving a case against a terminal or intermediate carrier. (Oregon Washington Railroad & Navigation Co. v. McGinn, 258 U. S. 409, 66 L. Ed. 689; Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167; Alton Iron & Metal Co. v. Wabash Ry. Co., 328 Ill. 353; Lino v. Northwestern Pac. R. Co., 332 Ill. 93.)

It has been repeatedly held by the Supreme Court of the United States that the Carmack amendment, and this is the only portion of the Interstate Commerce Act that might be considered as even remotely affecting such liability, did not supersede the liability of common carriers as at common law for delay, damage or loss to interstate shipments. The shipment involved here was an interstate shipment and the decisions of the Supreme Court of the nation are therefore controlling.

In Chicago & Eastern Illinois R. Co. v. Collins Produce Co., 235 Fed. 857, the court, in holding* that the Carmack amendment did not restrict or limit the common law liability of a carrier, used this language at pages 860 and 861:

“The,.trial court properly concluded that the Car-mack amendment to the twentieth section of the act to regulate commerce did not change the common-law rule or restrict the liability of the carrier. The amendment merely imposed a liability upon the initial carrier for a loss occurring on the line of a connecting carrier. It was not intended to restrict, nor did it limit, the liability of any carrier. Atlantic Coast Line Co. v. Riverside Mills, 219 U. S. 194, 205, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7; Gal, H. & S. Ry. Co. v. Wallace, 223 U. S 492, 32 Sup. Ct. 205, 56 L. Ed. 516. Also see decisions of United States Supreme Court (Advance Sheets): New York, P. & N. Ry. Co. v. Peninsula Produce Exchange Co., 240 U. S. 34, 36 Sup. Ct. 230, 60 L. Ed. 511, decided January 24, 1916; Cincinnati, N. O. & Tex. Pac. Ry. Co. v. Rankin, 241 U. S. 319, 36 Sup. Ct. 555, 60 L. Ed. 1022, decided May 22, 1916; N. P. Ry. Co. v. Wall, 241 U. S. 87, 36 Sup. Ct. 493, 60 L. Ed. 905, decided April 24, 1916.
“The first contention of defendant is based upon an erroneous construction of the Carmack amendment to the interstate commerce act as heretofore pointed out. The loss being established, the liability of the initial carrier was not dependent upon the plaintiff’s proof that such loss was caused by either the initial or connecting carrier. Defendant’s liability was the common-law liability of a carrier, and it was not incumbent upon plaintiff to show that an act of the carrier occasioned the loss. Galveston, H. & S. Ry. Co. v. Wallace, 223 U. S. 491, 32 Sup. Ct. 205, 56 L. Ed. 516.”

In affirming the Circuit Court of Appeals in the Collins Produce Co. case, supra, the Supreme Court of the United States in 249 U. S. 186, 63 L. Ed. 552, held at pages 554 and 555:

“The first claim is that the court refused to rule that, by its terms, the Carmack amendment (June 29, 1906, 34 Stat. at L. 595, chap. 3591, Sec. 7, Comp. Stat. 1916, secs. 8604a, 8604aa) casts upon the shipper the burden of proving affirmatively that the loss which occurred on a connecting line was 1 caused by’ the connecting carrier. But, assuming that the question is presented by the record, which is doubtful, Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481, 491, 56 L. Ed. 516, 523, 32 Sup. Ct. Rep. 205, rules that, under the act as construed in Atlantic Coast Line R. Co. v. Riverside Hills, 219 U. S. 186, 205, 206, 55 L. Ed. 167, 181, 182, 31 L. R. A. (N. S.) 7, 31 Sup. Ct. Rep. 164, in such a case as we have here the liability of the initial carrier is as if the shipment had been between stations in different states, but both upon its own line, and this renders the contention untenable. Adams Exp. Co. v. Croninger, 226 U. S. 491, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, 33 Sup. Ct. Rep. 148, does not conflict with this conclusion. Cincinnati, N. C. & T. P. R. Co. v. Rankin, 241 U. S. 319, 326, 60 L. Ed. 1022, 1025, L. R. A. 1917A, 265, 36 Sup. Ct. Rep. 555.
“The common-law principle making the common carrier an insurer is justified by the purpose to prevent negligence or collusion between dishonest carriers or their servants and thieves or others, to the prejudice of the shipper, who is, of necessity, so remote from his property, when in transit, that proof of such collusion or negligence, when existing, would be difficult if not impossible. ’ ’

There is no language in the statute (Carmack amendment) from which a purpose may be inferred to vary or limit the common law liability of the carrier or the common law rules governing proof of negligence as a fact in issue. When it was alleged that the shipper delivered the cow to the carrier in good condition and the carrier delivered the animal to the consignee in bad condition, a cause of action was sufficiently alleged. Proof of such allegations makes out a prima facie case of negligence. (Thompson Mfg. Co. v. Chesapeake & Ohio Ry. Co., 95 W. Va. 670, 123 S. E. 421, 270 U. S. 416, 70 L. Ed. 659; Kansas City Southern Ry. Co. v. Mixon-McClintock Co., 107 Ark. 48, 154 S. W. 205; Lehigh Valley R. Co. v. Lysaght, 271 Fed. 906; Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481, 56 L. Ed. 516; Adams Express Co. v. Croninger, 226 U. S. 491, 57 L. Ed. 314; Storm Lake Tub & Tank Factory v. Minneapolis & St. L. R. Co., 209 Fed. 895.)

It is in vain to urge that recognition of plaintiff’s common law right to recover in a tort action for the carrier’s default in shipment is the grant of some special service or right not offered to all shippers and is in conflict with the uniformity provisions of the Interstate Commerce Act. Such contention is obviously unsound, and it is sufficient answer to state that such common law right to recover in an action in case may be universally exercised under the overwhelming weight of authority, and is not a privilege extended to the plaintiff in this cause. If the rule were otherwise and we were to hold that the shipper must allege and prove the specific acts of negligence that caused injury or death to livestock in transit while unaccompanied by a caretaker and while under the sole control and direction of the carrier, it would be to say “that the shipper must establish facts that lie exclusively within the possession and control of defendant,” and would leave the shipper without remedy or even hope of having his rights protected other than as the same might be protected by the testimony of those whose interest lay not with the shipper but opposed to him. The result would be that it would be practically impossible in any case to show such negligence on the part of the carrier as would warrant recovery. The law is conclusively settled that the common law liability of a common carrier still survives. We are of the opinion that all three counts of the declaration in this cause are good and the action being in case section 32 of the Practice Act, providing that a copy of the contract sued upon must be filed with the declaration, is not applicable.

For the reasons indicated the judgment and order are reversed and the cause remanded with directions to the circuit court to overrule defendant’s demurrer.

Judgment and order reversed and cause remanded with directions.

Gridley and Scanlan, JJ., concur.


source: Caselaw Access Project

author: Me. Justice Gridley

license: Public Domain

text:
    Straus National Bank and Trust Company, Administrator of the Estate of Joseph N. O’Neil, Deceased, Appellee, v. Irving Marcus, Appellant.
    Gen. No. 36,898.
    Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    John A. Bloomingston, for appellant.
    McKenna, Harris & Schneider, for appellee; James J. McKenna and Abraham W. Brussell, of counsel.
   Me. Justice Gridley

delivered the opinion of the court.

By this appeal defendant seeks to reverse a judgment for $4,500, rendered against him after verdict on April 22, 1933, in an action for damages for negligently causing the death of plaintiff’s intestate, Joseph N. O’Neil.

The action was commenced on July 27, 1931. Plaintiff’s original declaration, to which defendant filed a plea of the general issue, consisted of six counts. On February 7, 1933, during- the trial, plaintiff, by leave of court, filed six additional counts. On the same day plaintiff withdrew from the jury’s consideration the 2nd, 4th, 5th and 6th counts of the original declaration, and also the 2nd, 4th, 5th and 6th additional counts. To the 1st and 3rd additional counts defendant filed a plea of the general issue, and also a plea that the causes of action in said counts mentioned “did not, nor did any or either of them, accrue to the plaintiff at any time within one year next before the filing of said counts.” The court sustained plaintiff’s general demurrer to said plea of the statute of limitations and the case went to the jury on the 1st and 3rd original counts and the 1st and 3rd additional counts. On February 8, 1933, the jury returned a verdict, finding defendant guilty and assessing plaintiff’s damages at $4,500.

The 1st original count may be described as a general negligence count. It alleges in substance that on January 30, 1931, defendant was driving his automobile on Michigan boulevard, Chicago, in a southerly direction and approaching 26th street; that at the same time plaintiff’s intestate, exercising due care for his own safety, was driving another automobile on Michigan boulevard “in a northerly direction, up and to its intersection with said 26th street, and he continued to drive the automobile, turning from said Michigan boulevard into said 26th street in a westerly direction”; that defendant, in violation of his duty, so carelessly and negligently operated his automobile that it was permitted to collide with the automobile in which plaintiff’s intestate was riding; and that thereby the intestate was thrown to the pavement and so greatly injured that, after languishing for a time, he died on March 19, 1931, as a result of the injuries. The count also contained the usual allegations as to the bringing of the suit within a year from the death, the surviving widow and next of kin, the proffer of letters of administration, etc. ■

The allegations of the 1st additional count are the same with the exception of the one as to the direction in which the intestate’s automobile was traveling, which is that said intestate, exercising due care for his own safety, was driving his automobile, “on, along and through the said intersection of said 26th street with said Michigan boulevard in an easterly direction, on, along and through said intersection.” The allegations of the 3rd original count are substantially the same as those in the 1st original count except that the negligence charged is that defendant drove his automobile at an unlawful and dangerous rate of speed, etc. The allegations of the 3rd additional count are the same as those of the 3rd original count with the exception that the direction, in which said intestate’s automobile was traveling, is the same as stated in the 1st additional count.

On the trial four eyewitnesses to the accident testified for plaintiff, viz., Frank A. Countryman (the crossing policeman); John C. Muzzo and Ray LaPorte (seated in an automobile, facing west, on 26th street, east of Michigan boulevard); and John Goodman (standing at the southwest corner of the intersection). Plaintiff also called as witnesses two physicians, Drs. Stimson and Needham, who after the accident from time to time attended and treated the intestate, and two other physicians, Drs. Adams and Swift, who testified as experts. Margery 0 ’Neil, widow of intestate, and one other witness also gave testimony. Defendant’s principal witnesses were W. H. Briese, an eyewitness to the accident; John A. Philpott, who subsequently made repairs on the car in which the intestate had been riding; and Dr. Tannenbaum, one of the internes at the Michael Reese hospital to which the intestate was taken immediately after the accident.

On January 30, 1931, the intestate was an employee of the Dashiel Motor Co., working in its service department at the northwest corner of Michigan boulevard and 26th street, Chicago. His home was at 940 Washington boulevard, Oak Park, where he had lived with his wife for about seven years. He was 28 years old, in excellent health, and had normal hearing and eyesight. The accident occurred shortly before 4 o’clock on the afternoon of January 30, 1931, within the intersection of the two streets. Michigan boulevard runs north and south and 26th street east and west. Near to or within the intersection were located several traffic signals, consisting of red, green and yellow lights. Red means that traffic should come to a complete stop; green means to go; and yellow is a cautionary signal, — meaning that vehicles that are standing should get ready to go, and those that are moving should get ready to stop. The testimony of plaintiff’s witnesses, Countryman, Muzzo and LaPorte, was to the effect that while the lights showed “green” for traffic on the boulevard and “red” for traffic on 26th street, the intestate was sitting in a standing Dodge car on 26th street, facing east, waiting for the lights to change; that when they did change (i. e., to “green” for 26th street traffic and “red” for traffic on the boulevard) the intestate started his car and moved slowly in a northeasterly direction for the purpose of making a left-hand turn to the north on the boulevard; that while he was in the act of doing this, defendant’s LaSalle car, moving south on the boulevard at a speed of more than 35 miles an hour, suddenly and without any slackening of speed, “crashed” the lights, entered the intersection, ran into the intestate’s car, and caused it to violently come in contact with a pole standing at the southwest corner of the intersection; and that by reason thereof the intestate was thrown out of his car, head first, striking the sidewalk or pavement with his head and right shoulder, and rendering him temporarily unconscious. The testimony of plaintiff’s witness, Goodman, and defendant’s witness, Briese, was similar, except that the intestate’s car had been standing south of the intersection, facing north on the east side of the boulevard, and waiting to turn and move westerly in 26th street, and that subsequently, while his car was moving westerly within the intersection, the collision occurred. Goodman testified: “The fact is, the accident I saw was where a LaSalle car going south and a Dodge car headed west came together; the front of the LaSalle and the back or the side of the Dodge car came together. ’ ’ Briese testified :

“I was standing on the southwest corner of 26th and Michigan, waiting for the lights to change to cross Michigan, and the north and south-bound traffic was traveling. . . . There was a Dodge car, with‘Dashiel Motor Company’ across the side of it, and the other was a LaSalle car. . . . This Dashiel Co. car made a left turn going ivest on 26th street and collided with the LaSalle car, which was going south. Before the Dodge car made the turn it was going north. When it made the turn the LaSalle car was coming pretty close to 26th street. There is a safety island there and the Dodge car was hugging it and all of a sudden shot around quickly. At this time the lights were on north and south. . . . When the collision occurred the LaSalle car struck the right rear of the Dodge car and hurled it right around in the street. . . . When the Dodge stopped coming sideways it hit the curb, and there was a light pole there, and the Dodge kind of careened a bit, and the door flew open; and a young man came out backward, head first, that is, part way out. . . . When the collision took place the LaSalle was about half way between where the safety island would be and the west curb of the boulevard. . . . At the time the Dodge was struck it was just as it had turned and was about half way across the south drive. The Dodge was not going slowly. . . . I didn’t notice how fast it went when it made the turn. ... I was waiting on the corner for the lights to turn and really didn’t notice the Dodge very much until the two cars came together. ... I helped lift the young man off the street, and took him out and brought him over until the Yellow cab came along. He was a young, fresh, fine looking young fellow. ... He was not looking very healthy then; he was unconscious. ’ ’

The intestate was conveyed in a cab to the hospital several blocks away, accompanied by plaintiff’s witnesses, Countryman and Goodman. During the ride it was observed that he was bleeding from his left ear and that blood and white fluid coming from the ear was staining his smock or coat. About the time he arrived at the hospital he regained consciousness and after reaching the examining room he put his finger into his right ear and began shaking his head and also began to rave. After being laid out on a table his face and head were washed and his blood pressure taken, etc. While on the table he jumped off and attempted to kiss an attending nurse. He also attempted to use the telephone. After being put to bed and upon further examination by Dr. Stimson it was noticed that the pupils of his eyes were greatly dilated, that his pulse was about 100, that his blood pressure was very high for liis age, and that there was some bluish discoloration around the right temporal and parietal region, an acute tenderness and sprain of the right shoulder joint and some muscular spasms in the back. He complained of headaches, dizziness, etc. He was treated by Dr. Stimson, and given morphine to relieve his pain. In a few days his condition improved and he was permitted to be taken to his home on February 5th. Thereafter, commencing on February 7th, he from time to time received treatments at Dr. Stimson’s office. His pulse and blood pressure remained high. He had a swaying walk and apparently was very weak. The treatments on alternate days consisted of the application of heat lamps followed by massage. On February 19th, while at home he had a severe nose-bleed and Dr. Needham was called and there treated him, but the hemorrhages continued and were found difficult to control. Thereafter he was taken to the Oak Park Hospital and Dr. Riordan was called in consultation. Finally, the hemorrhages ceased, but only after the intestate had lost “about one quarter of his total blood, ’ ’ and thereby was in a much weakened condition. After he was returned to his home the heat and massage treatments were resumed at intervals at Dr. Stimson’s office, commencing about February 27th. Early in March he made a call at the place where he had worked (Dashiel Motor Co.) but it was found he was too weak to do any work and he was sent home. On March 7th, he was again examined by Dr. Stimson in his office. He had recovered somewhat from the pain in his shoulder and had good motion in the arms, but his pulse and blood pressure still were high and he complained of headaches, dizziness and a feeling of weakness. On that day he also received the usual heat and massage treatment, but on his way home was caught in a blizzard, and upon reaching home had a chill, complained of pain in the left side of his chest and was put to bed. On March 9th, Dr. Stimson called upon and treated him. He found increased pain in the chest, a high pulse and temperature and diagnosed the symptoms" as those of acute pleurisy. Dr. Stimson continued to call on him and treat him daily until March 14th, when Dr. Need-ham was called in consultation. At this time symptoms of lobar pneumonia had developed and he was taken to the Oak Park Hospital again. He there died on March 19,1931. Dr. Stimson testified in part:

“We put him in the hospital because he had signs of dullness in the left lung, evidently lobar pneumonia, involving the lower and upper lobes, with rapid breathing. . . . He developed a typical left lobar pneumonia, his pleurisy symptoms subsided and he began having a resolution of the pneumonia on the 18th. A resolution means softening of the exudate and expulsion of it by coughing a lot of preliquid sputum. . . . I didn’t see him the last day. Dr. Needham was there when he died. ... I found he had pneumonia of the left side of the chest. The infectious type of pneumonia is a specific disease coming from a specific organism, — a pneumococcus germ. There are other types, but this was the type I found. ... We are exposed to the germs that cause pneumonia all the time. . . . He had a regular lobar pneumonia. It came about 5 or 6 weeks after the accident. I wouldn’t say that the developments of the head and shoulder had cleared up. I wouldn’t say they were getting better all the time. ... As far as the head was concerned he was still having headaches and dizziness and still had nose bleeds. . . . This very bad day that he came down to my office I gave him heat treatments. He might have gotten himself sweated a. bit and then gone out a little too soon and g’otten cold. . . . That would cause a pneumonia very easily. . . . If a man is in a generally weakened condition he is much more susceptible to pneumonia. ... I would say, speaking medically, that a common cold is often accelerated or started by a change in temperature, like a chilling. For a cold to develop into pneumonia is rather uncommon. Sometimes, however, pneumonia follows a cold, and one of the nicest ways to get a cold is to get a perspiration and then go outside.”

Dr. Needham testified in part:

“I first saw Mr. O’Neil at his home on February 19, 1931, and treated him. He had a severe nasal hemorrhage. . . . Afterwards we took him to the Oak Park Hospital to see if we could see where the blood came from and control it. He had lost considerable blood. The first time he probably lost a pint, and then he had two or three hemorrhages in the hospital. . . . I was not able to determine the cause of the nosebleed from my examinations. . . . The cause of his death was acute lobar pneumonia. Of course, the heart gave out. The heart has to pump blood through a congested lung, . . . and after a while the heart gets exhausted and has to quit; there is nothing unusual about it. . . . When I saw him on March 14th, he had a typical lobar pneumonia. ... It might follow injury. It was not the hypostatic type, it was purely an infectious condition. I wouldn’t say it was caused by a cold, but by being infected with the pneumococcus germ. ... A person with a lowered vitality, loss of blood or anything that reduces vitality, is more susceptible to any infectious disease, including pneumonia. . . . The pneumonia germ is always present in everybody’s mouth.”

Dr. Adams, one of plaintiff’s expert witnesses, in answer to a hypothetical question which embodied in substance the facts as above outlined, testified that he had an opinion “as to whether or not there might or could be, with a reasonable degree of medical certainty, a causal connection between the accident described in said question, occurring on January 30th, and the death, occurring on March 19th, 1931,” and stated that, >in his opinion, “there might or could be, with reasonable medical certainty, a causal relation between the accident and the subsequent condition of ill-being and death” of the man mentioned in the hypothetical question. And the witness in giving- reasons for his opinion said: “It would seem to me that the loss of blood, and the subsequent exposure of the man leaving the office and getting out in a blizzard and tailing a chill, ending in pneumonia, would be ample explanation of the cause of the pneumonia, and his weakened condition appears to me would be the result of his accident.” Dr. Swift, plaintiff’s other expert witness, in answer to a similar hypothetical question, expressed a similar opinion. Defendant did not call any expert witnesses, and the expert testimony of Drs. Adams and Swift is without contradiction in the present record.

At the close of all the evidence defendant moved for a directed verdict in his favor but the motion was denied. Defendant also moved that the court instruct the jury “to disregard the testimony of Muzzo, LaPorte and Countryman, as to the manner in which, the alleged collision occurred between decedent’s car and defendant’s car, on the ground that there was a variance between the allegations of the declaration and such proof; that the allegations of the declaration charge that decedent’s automobile was being driven in a northerly direction and turned west on 26th street, whereas the testimony of said three witnesses was that decedent’s automobile was being driven in an easterly direction at the time of the collision.” This motion also was denied.

In urging a reversal of the judgment, the main contention of defendant’s counsel is that the automobile accident “was not the proximate cause of the death of plaintiff’s intestate.” And counsel argue (1) that “the pneumonia was an intervening and independent cause”; (2) that the accident was only the “remote” cause; and (3) that “the question of proximate cause was for the court. ’ ’

There are numerous decisions by our Supreme Court in which the principles or rules as to proximate cause have been stated. (See Pullman Palace Car Co. v. Laack, 143 Ill. 242, 260, 261; Siegel, Cooper & Co. v. Trcka, 218 Ill. 559, 562, 563; Seith v. Commonwealth Electric Co., 241 Ill. 252, 259, 260; Hartnett v. Boston Store, 265 Ill. 331, 334; Fisher v. Chicago, R. I. & P. R. Co., 290 Ill. 49, 58; Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142, 148; Phillabaum v. Lake Erie & W. R. Co., 315 Ill. 131, 136.) And it is well settled that what is the proximate cause of an injury to a person, or of his death, is ordinarily a question to be determined by the jury under the instructions of the court. (Landgraf v. Kuh, 188 Ill. 484, 501; City of Mt. Carmel v. Howell, 137 Ill. 91, 93; Schultz v. Ericsson Co., 264 Ill. 156, 157; Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469, 474.) In the last cited case it is said: “It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it.” In the Howell case it is said: “Whether the deceased died from spinal meningitis, or from an injury received in the street, as alleged in the declaration, was a question of fact for the jury, and they were told in plain terms, by defendant’s 13th and 14th instructions, that plaintiff could not recover unless it was shown, by a preponderance of the evidence, that the injury received in the street was the proximate cause of her death, . . . ” In the Schulte case it is said: “What is the proximate cause of an injury is ordinarily á question of fact for the jury, to be determined from a consideration of all of the attending facts and circumstances. It only becomes a question of law when the facts are not only not disputed, but are also such that there can be no difference in the judgment of reasonable men in the inference to be drawn therefrom.” In an exhaustive annotation in 79 Am. Law Reports, Ann., headed “Injury as proximate cause of death where disease intervenes,” it is said at page 351: “It may be generally stated that an injury is held to be the proximate cause of death where disease intervened, when it is shown that the injury caused the disease from which death resulted; or,if the injury did not cause the disease, that it concurred with the disease as a direct agent in producing death, and without which death would not then have resulted; provided, in either case, there was no intervening act or neglect of the decedent or a third person which contributed to the fatal result. ’ ’ And at pages 361-363, the author refers in detail to numerous cases, decided in jurisdictions other than Illinois, where after the injury and before the death pneumonia developed. Opposing counsel have not directed our attention to any decisions of our Supreme Court, in a case arising under our “Injuries” statute as is the present, where after the injury and before the death pneumonia developed. But' plaintiff’s counsel have cited several such decisions, which we consider pertinent, arising under our Workmen’s Compensation Act, viz.: Bergstrom v. Industrial Commission, 286 Ill. 29, 31; Lumaghi Coal Co. v. Industrial Commission, 305 Ill. 475, 476; Kivish v. Industrial Commission, 312 Ill. 311, 317. In the Bergstrom case it appears that on September 26, 1916, George Shaw, while working for his employer as a sheet-metal worker, received a serious injury to his ankle and was taken to a hospital, where, on October 14th, he was operated upon and a bone removed. About four weeks later he was removed to his home and, after the wound from the operation had healed, he was able to move about the house on crutches and was allowed by his attending physician to go out of doors when the weather was pleasant. His foot was kept in a cast for some time and, due to some cause, an ulcer on the hall of the foot developed and a pimple on the outerside of the leg formed, from which a small amount of pus was discharged, and a short time before his death a large abscess came on the back of his 'neck. On March 2, 1917, he took an automobile ride from about 3 to 6 o’clock, p.m., when the temperature was about 30 degrees. About 9 o’clock the following morning, after having had breakfast in bed and having made no complaints about feeling ill, he called his wife and said he wanted to spit. While she was assisting him to rise, his head fell over on her shoulder and he died. There was no struggle or shudder. On the post mortem examination thereafter had the coroner’s physician found the right lung congested and edematous and hypostatic pneumonia in the left lung; also the heart slightly enlarged; the liver slightly congested; and the spleen enlarged, soft and pulpy, indicating sepsis. And said physician expressed the opinion that Shaw “came to his death from hypo-static pneumonia, associated with injuries to his foot,” and that “he died of general sepsis, — one of the main factors causing the condition of hypostatic pneumonia.” His widow made application for an award under the Workmen’s Compensation Act. On the hearing before an arbitrator her claim was denied. On review before the commission, on the same evidence and some additional evidence, that body made an award in favor of the claimant, which was reviewed and affirmed by the circuit court of Cook county. The case reached the Supreme Court by writ of error, where the award was “resisted on the ground that the death did not result from an accident arising out of and in the course of the employment.” In affirming the judgment the Supreme Court said (p. 31):

“It is insisted by plaintiff in error that the injury to the foot had no connection with the death; that the conditions which caused the death were the direct re-suit of the exposure from the automobile ride. Shaw wore no overcoat during the ride. He had on flannel underwear, his limb was wrapped in flannel and he was wrapped to the armpits in a heavy lap-robe. Several physicians testified, most of them as experts. . . . They did not all agree, and the opinions expressed by some of them tend to support the contention of plaintiff in error. Others expressed the opinion that death resulted from the continued septic process and that the ride in the automobile had nothing to do with it. We cannot weigh the evidence. If there is any competent testimony fairly tending to support the claim of defendant in error, we cannot consider the weight of the evidence and reverse the judgment because in our opinion it is contrary to the preponderance of the testimony. . . . There was competent testimony to support the claim of defendant in error that the death resulted from an accident arising out of and in the course of the employment.”

In the Lumaghi Coal Co. case, supra, our Supreme Court affirmed a judgment of the circuit court of Madison county, which had confirmed an award of the Industrial Commission made in favor of the dependents of the deceased employee, saying in part (305 Ill., ,pp. 475, 476; italics ours):

“January 19, 1920, John Buckner was crushed between a car and a prop in the mine of the Lumaghi Coal Co. and suffered a complete fracture of the fourth rib on the right side, a serious fracture of the sternum, an incomplete fracture of the right ilium and bruises on his back and chest. He was taken to a hospital, where he was treated until February 8, when he was moved to his home. Pneumonia developed the next day, and with this disease he lingered until March 9, when he died. He was confined to his bed continuously from the time he was injured until»he died. The attending physicians testified that the injuries he received were not serious and in themselves would not have produced death. It was their opinion that the injuries weakened his disease-resisting powers and in that respect contributed to his death. They were, of course, not able to state whether he would have contracted pneumonia if he had not been injured or whether he would have died from the disease if he had been in good physical condition when he contracted it. Buckner was in good health prior to the accident, ... We have examined all of the evidence in the record and are convinced that the finding is right. . . . The judgment is affirmed. ’ ’

In the Kivish case, supra, it appears that the circuit court of Saline county had confirmed a decision of the Industrial Commission denying an award to the plaintiffs in error for damages arising out of the death of Alex. Kivish, an employee of the Harrisburg Colliery Co., who, on April 11, 1919, was seriously injured by the fall of some coal in the company’s mine, and who while thereafter in a hospital contracted influenza and there died of pneumonia on February 7, 1920; and that on review on writ of error our Supreme Court reversed the judgment of the circuit court and remanded the cause with directions to enter judgment in favor of plaintiffs in error “for the amount justified by law.” In the opinion the court said in part (312 Ill. pp. 316-318):

. “Notwithstanding the learning and skill of the physicians attending Kivish at the time of his death, it is not possible to determine definitely and absolutely whether the injuries received by him were the proximate cause of his death. . . . It is not uncommon for pneumonia to develop in a person who has suffered a serious injury to the thorax, and when a healthy man, crushed and bruised as Kivish was, develops pneumonia while confined to his bed by reason of his injuries and dies before the injuries to his chest have healed, it is natural and reasonable to conclude that his -death is the result of such injuries. . . . No man knows whether Kivish would have died if he had not contracted influenza. Perhaps this disease further weakened the patient’s powers of resistance, but whether the pneumonia developed because of the injuries or because of the influenza, or the patient succumbed to pneumonia because of his weakened condition due to the injuries, or to influenza, is not capable of demonstration. . . . The whole record considered, we are convinced that the death of Kivish was caused by the injuries received by him while in the employ of defendant in error. . . . ”

Among the adjudicated cases in other jurisdictions, where actions were brought to recover damages for negligently causing the death of a person injured in an accident and prior to the death pneumonia developed and damages were adjudged following a verdict of a jury, reference is made to the following: Beauchamp v. Saginaw Mining Co., 50 Mich. 163, 174; Illinois Cent. R. Co. v. Harris (Miss.), 29 So. 760; Sharp v. Missouri Pacific R. Co., 213 Mo. 517, 531; Kuenzel v. City of St. Louis, 278 Mo. 277, 281; Beckner v. Kansas City Rys. Co. (Mo. App.), 232 S. W. 745, 747; Nicoll v. Sweet, 163 Iowa 683, 685; Sterling Anthracite Coal Co. v. Strope, 130 Ark. 435, 437; Marks v. Reissinger, 35 Cal. App. 44, 59; Thompson v. Seattle, R. & S. R. Co., 71 Wash. 436, 440; Louisville & N. R. Co. v. Jones, 83 Ala. 376, 382. In these cases there were holdings to the effect that it was a question for the jury to determine from all the evidence whether the injuries received by the deceased proximately caused or contributed to his death. In the Beauchamp case (50 Mich. 174), it is said:

“Is it clear beyond dispute, that the cold taken, pneumonia and death were independent and separate from the injury received and sickness resulting therefrom? Can it be said with judicial certainty that the injury, the sickness and weakness following therefrom, did not directly cause or largely contribute to the attack of pneumonia, and that the party wrongfully injured was as able to withstand this resultant attack as he would have been if ‘a good, healthy, well-nourished boy’ as at the time he received the injury? If the injury received and sickness following therefrom concurred in and contributed to the attack of pneumonia, the defendant must be held responsible therefor. It cannot be said that here was a second wrongful act, or a disease, wholly independent of the first wrong, which caused the death of the boy.”

In Ensign v. Southern Pac. Co., 193 Cal. 311, plaintiff’s intestate was badly injured in his back in 1914 while loading heavy pipes in defendant’s railroad car, which was jarred by the impact of certain other cars against it. After being in bed for a time he became able to walk a little with the aid of a cane, though he had a decided limp. His weight, however, so steadily decreased that in July, 1918, when he died, he weighed about 60 pounds less than when injured. He developed a rectal abscess and his condition required an operation, which while being performed resulted fatally. A jury returned a verdict and assessed damages against defendant for negligently causing the death. It was contended in the reviewing court that plaintiff had failed to prove that the injury was the proximate cause of the death and' that the jury’s verdict rested on mere conjecture and speculation. In deciding adversely to the contention the court said (p. 318):

1 ‘ The jury were justified under the evidence herein-above set out in arriving at the conclusion, as they evidently did, that the back of the deceased was wrenched; that as a consequence he suffered pain with attendant loss of sleep which resulted in a lowering of his vitality; that by reason of his weakened power. of resistance he became the prey of tuberculosis; that as a result a rectal abscess, tubercular in origin, developed, which necessitated an operation which resulted fatally. In other words, the jury found, and were justified in finding, that the ultimate result could be traced through successive stages to the original injury, and that the responsibility rested upon the one who put in operation the chain of events which resulted in the death of the' deceased.
“It was not necessary for the plaintiff, in order to recover, to show that the tuberculosis was traumatic in origin. If, on account of the depleted and weakened condition of a person caused by an injury, he is rendered more susceptible to germs than if he had not been injured, or if, because of his debilitated condition, he is unable to resist the attack of germs present in his system, then the disease resulting from the germs is a natural sequence to his condition resulting from the injury, and the injury is the proximate cause of his death, and the disease is but one of the links in the chain of causation.”

Defendant’s counsel refers in his brief to certain somewhat similar cases in which the ultimate decision was in favor of the defendant. Among those cases are Mayor and City Council of Nashville v. Reese, 138 Tenn. 471; Seifter v. Brooklyn Heights R. Co., 169 N. Y. 254; Cincinnati, N. O. & T. P. R. Co. v. Perkins, 177 Ky. 88; but an examination of them discloses that they are to be distinguished in their facts from those appearing in the present record and from those in the cases above referred to.

We are of the opinion, after considering all of the evidence in the present case, including the testimony of O’Neil’s attending physicians and that of the medical experts introduced by plaintiff, and after a careful review of the authorities, that the main contention and argument of defendant’s counsel, above mentioned, are without merit.

Another contention of defendant’s counsel is in substance that the court erred in allowing plaintiff during the trial to file the 1st and 3rd additional counts to his declaration, and in sustaining plaintiff’s demurrer to defendant’s plea of the statute of limitations to said additional counts. In our opinion said additional counts did not state a new cause of action. (Chicago City Ry. Co. v. McMeen, 206 Ill. 108, 115, 117, 118; Carlin v. City of Chicago, 262 Ill. 564, 572, 573; Bandet v. Burns, 266 Ill. App. 382, 384.) Furthermore, we think that under section 39 of our former Practice Act, in force when the present action was commenced and when the judgment appealed from was entered, said additional counts would relate back to the date of the filing of plaintiff’s original declaration. (Bandet v. Burns, supra; Zister v. Pollack, 262 Ill. App. 170, 179-182.)

Defendant’s counsel also contends that the court committed reversible error in the giving to the jury of certain instructions offered by plaintiff. We have reviewed the instructions complained of and considered counsel’s arguments relative thereto, and are of the opinion, in view of all of the given instructions and the evidence, that the jury were fully and fairly instructed and that counsel’s contention is lacking in substantial merit. (See Beard v. Maxwell, 113 Ill. 440, 442; Funk v. Babbitt, 156 Ill. 408, 415, 416; Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207, 213.) And we do not think that the court committed reversible error in refusing to give to the jury a certain instruction offered by defendant, as is also urged.

And we find no merit in counsel’s further contentions (a) that “the evidence does not support the verdict” and (b) that “the manifest weight of the evidence is in favor of defendant.”

Our conclusion is that the judgment appealed from should be affirmed, and it is so ordered.

Affirmed.

Sullivan, P. J., and Scanlan, J., concur.


author: Mr. Justice Gridley

text:
    In re Estate of Maxwell M. Jones, Deceased. Lucy E. Jones, Administratrix of Said Estate, Appellant, v. Anna S. Jones, Appellee.
    Gen. No. 37,021.
    Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    Irvin I. Slan and D. W. Elliott, for appellant.
    Raymond J. Kehoe and Emil J. Benson, for appellee ; Kehoe, O’Rourke, Kehoe & O’Connor, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

On May 4, 1933 on appeal from the probate court of Cook county, in re citation of Anna S. Jones on the petition of Lucy E. Jones as administratrix of said estate, and after a trial de novo without a jury, the circuit court entered the following order or judgment: “That the order of the probate court that Anna S. Jones turn over and deliver to Lucy E. Jones, Administratrix of said estate, certain property described therein be reversed, and set aside, and the petition for citation be dismissed.” It is sought by the present appeal of said administratrix to reverse the judgment.

It appears that when the matter was tried de novo in the circuit court, another controversy between the same parties was tried at the same time de novo, arising on the claim of Anna S. Jones against the estate for $10,000, previously filed in the probate court and which claim that court had allowed to the extent of $2,500. And on said May 4,1933, the circuit court, as to said claim of $10,000, entered the following separate order or judgment: ‘ ‘ That the claim of Anna S. Jones against said estate, in the sum of $10,000, be entirely disallowed.” From said last mentioned judgment Anna ¡3. Jones prayed for and was allowed a separate appeal to this court, but she did not here perfect it and, apparently, it has been abandoned. Some of the evidence heard by the circuit court, while relating more particularly to the claim of $10,000, has a bearing upon the matters involved in the present appeal.

It further appears that on January 29, 1928, Maxwell M. Jones died intestate; that on January 31,1928, his widow, Lucy E. J ones, was appointed administratrix of his estate; and that besides Lucy E. Jones he left him surviving two daughters, Florence and Alice Jones; a son, Harold B. Jones; a sister, Anna S. Jones; and a brother, Harry J ones.

The record does not contain the petition filed by the administratrix for the citation against Anna S. Jones, but from the certified transcript of the clerk of the probate court in the record it appears that on January 30, 1929 (about a year after letters of administration were issued), Anna S. Jones filed a claim against the estate for $10,000, based upon a purported check of Maxwell M. Jones, payable to her order, drawn on the Harris Trust and Savings Bank and dated Chicago, January 26, 1928 (three days before his death); that on July 22, 1930, the administratrix filed her petition under sections 81 and 82, as amended in 1925, of the Administration Act (Cahill’s St. 1931, ch. 3, fifí 82, 83, p. 64), to recover certain certificates of stock in several corporations, which certificates were then in the pos: session of Anna S. Jones, upon the theory that the stocks were assets of the estate; that a citation was issued and served upon Anna S. Jones; that she appeared, and filed an answer to the petition; and that on August 6, 1930, after a hearing upon the petition and her answer thereto, as well as upon her claim against the estate for $10,000, the probate court entered an order which, after various recitals, is in substance as follows:

That the court finds that the estate is indebted to Anna S. Jones on her claim of $10,000 to the extent of $2,500, and the claim is allowed to that extent, to be paid in due course of administration, but the balance of the claim, $7,500, is disallowed.

And the court further finds that Anna S. Jones has in her possession or under her control certain certificates of stock (numbers of the certificates given), which she has refused to turn over to the administratrix after demand therefor, as follows:

125 shares of Libby, McNeil & Libby stock,

3000 shares of Nacosari Copper stock,

65 shares of National Leather stock,

1500 shares of Alaska Juneau stock.

And the court orders that Anna S. Jones, on or before 20 days, turn over and deliver to Lucy E. Jones, as administratrix, the said stock.

From this order of the probate court three separate appeals were prayed and perfected in the circuit court, one by Anna S. Jones because of the allowance of only $2;500 on her claim; another by the administratrix because of the allowance of $2,500 on the claim, she urging that the claim should have been disallowed in toto; and the third by Anna S. Jones from that portion of the order directing her to deliver to the administratrix said stocks. Thereafter, by agreement of the parties, the three appealed cases were consolidated in the circuit court and there heard from time to time as one cause before the court without a jury, commencing on February 17, 1933. The principal witness for the estate was Lucy E. Jones, widow of the deceased, and the other witnesses for the estate, on the issue whether the stocks in question belonged to Anna S. Jones or were assets of the estate, were Florence Jones and Harold B. Jones (daughter and son, respectively, and heirs at law of deceased) and Mrs. Lillian Purkey (a nurse, who testified to certain conversations she overheard between Anna S. Jones, Lucy E. Jones and Florence Jones concerning certain stocks shortly after the death of deceased). Certain writings were offered by the administratrix and admitted in evidence, but certain letters, written during March, 1933, and passing between Lucy E. Jones and certain officers of the corporations which respectively had issued the stocks were refused admission, — and properly so in our opinion. On behalf of Anna S. Jones several witnesses testified, but their testimony is not properly abstracted, and, indeed, the testimony of some is not abstracted at all by appellant and we have been obliged to examine the record. Anna S. Jones, over 60 years of age, and who lived at Geneva, Illinois, did not testify as a witness, nor was her deposition taken. As a reason for this, her attorney stated that she had been and was too ill, and he presented to the court a doctor’s certificate, dated March 1, 1933, which stated inter alia: “as her physician I have forbidden her to do anything which will canse her any harm, as I feel it might canse her death.” Numerous writings, however, were offered and received in evidence in her behalf. These included five bills of sale to her of some, if not all, of the stocks herein involved, signed, witnessed and acknowledged by Maxwell M. Jones during December, 1921, or December, 1922 (several years before his death). The witnesses to these writings were called and testified that" said Jones’ signatures thereto were genuine. Their testimony was undisputed. In some of the writings it is stated that the accompanying certificates of stock are indorsed in blank by said Jones. From certain court records of the circuit court of Kane county, Illinois, introduced in evidence after identification by the clerk of that court when called as a witness, it appears that in December, 1929, Lucy E. Jones, as administratrix, there commenced a law action against Anna S. Jones on the latter’s note for $1,000, payable on demand to the order of Maxwell M. Jones and dated “December 27, 1919.” The administratrix subsequently dismissed her said action, but it appears from the note attached to the declaration that the consideration for it is “500 shares Alaska-Juneau Gold Mining Co. stock,” and that on its face over the signature of the payee at the lower left-hand corner is the statement “Guaranteed against Decline.” At the conclusion of all the evidence the circuit judge, before entering the order appealed from as first above mentioned, delivered a lengthy opinion which is contained in the record.

In the opinion the circuit judge first considered the appeal of the administratrix concerning the claim of Anna S. Jones against the estate, based upon the purported check of Maxwell M. Jones, payable to her order for $10,000, the original of which had been introduced in evidence and is contained in the record. After discussing the evidence bearing upon the question whether the check bore the genuine signature of the deceased, the judge concluded that, considering all the evidence and the actual appearance of the signature, said evidence “fails sufficiently convincingly to prove that said check is or was signed by the late Maxwell M. Jones,” and directed that an order be drafted and entered “entirely disallowing” said claim.

In the opinion the judge next considered the separate appeal of Anna S. Jones from the order of the probate court that she deliver to the administratrix of the estate the said stocks mentioned in said order. And the judge, after mentioning the members of the J ones family left surviving upon the death of Maxwell M. J ones, stated that “neither Anna S. Jones, the claimant for the $10,000 in stocks, nor Harry Jones, a brother of deceased, testified”; that “it may be said incidentally that Anna S. Jones would have been ineligible as a witness to testify in regard to her claim for $10,000 owing to the inhibition of section 2 of the Evidence Act”; and that “as to the fact that she did not testify in regard to the stocks as to facts stated by others to have occurred after the death of said deceased, it was claimed by her counsel that she was ill and in support thereof there was introduced a doctor’s certificate,” etc. After detailing at length the testimony of the witnesses, Florence Jones, Lillian Purkey, Lucy E. Jones and Harold B. Jones (all called by the administratrix), as to their respective versions of various conversations had after the death of the deceased relative to “stocks,” in which conversations it was claimed Anna S. Jones made certain statements relative to certain stocks in her possession, the judge further stated in the opinion:

“The evidence that Anna S. Jones said that the property was that of deceased is chiefly all by interested parties. Then, too, it is generally vague. All taken together it shows rather loose talk about the subject than anything convincingly definite. It shows it became a controversial matter. Of course, the note attached to the declaration, filed in the suit by Lucy E. Jones, as administratrix, v. Anna S. Jones, is undisputed, and is sufficient evidence that 500 shares of the Alaska stock was legally owned by Anna S. Jones on December 27, 1919. It even purports to contain a guarantee against decline in the value of the stock, signed by deceased. It seems to show the solicitude'of deceased for his sister.
“All the testimony of the witnesses seems to be weakened as far as the Alaska Juneau Stock is concerned. At the death of Maxwell. M. Jones, the widow and children may have thought that the sister of deceased ought to turn over the stocks because they once belonged to him; and that may have inspired an inclination on her part to talk about giving them up. But, certainly, with a bill of sale of the six certificates, total-ling 500 shares of Alaska Juneau stock, in her possession, signed by her brother, and an outstanding note of $1,000, (reciting that it was given by her to him on December 27, 1919, as a consideration for the 500 shares of said stock), and with no countervailing evidence of any kind, the conclusion is irresistible that at the time of her brother’s death she was, as against the rights of his estate, the absolute owner and rightfully in possession of said 500 shares of stock.
“The burden of proving by a preponderance of the evidence that the stocks in question belonged to the deceased at the time of his death was upon the estate. It is true that there is evidence of confusing statements made by Anna S. Jones, but when all the evidence on the subject is critically examined and weighed, and the striking evidence as to the Alaska Juneau stock borne in mind, it does not seem reasonable to hold that the estate has sufficiently shown that it is entitled to the stocks.”

And the judge, as to the appeal bearing upon the question of the present ownership of the stocks, directed that an order be drafted and entered to the effect that “the order of the probate court that Anna S. Jones turn over and deliver to Lucy E. Jones, administratrix of said estate, certain property described therein be reversed and set aside and the petition for citation be dismissed.” Thereafter on May 4, 1933, the order or judgment appealed from was entered as first above mentioned.

After reviewing the evidence and the holdings of the trial judge as stated in his opinion, and after considering the arguments of opposing counsel as made in their briefs as well as upon oral argument, our conclusion is that the order or judgment of the circuit court is amply sustained by the evidence and the law. No useful purpose will be served in here detailing the testimony, as to the claimed conversations had with Anna S. Jones concerning the stocks involved, of the estate’s witnesses, Lucy E. Jones, Florence Jones and Mrs. Purkey. Suffice it to say that after considering all of their testimony, as well as that of Harold E. Jones, which is not favorable to the estate, we agree with the circuit judge’s conclusion, as stated in his opinion, that “it does not seem reasonable to hold that the estate has sufficiently shown that it is entitled to the stocks.”

The main contention as a ground for a reversal of the judgment, urged by the estate’s counsel, is in substance that, as this is a proceeding originally instituted in the probate court under amended section 81 of the Administration Act, Cahill’s St. ch. 3, If 82, whereby Anna S. Jones was cited to appear and to in effect “show cause” why she should not deliver up the stocks in question, the burden of showing that at the time of the death of the deceased she was the owner of said stocks rested upon her, and that she did not maintain that burden. We cannot agree with the contention. We think that the trial judge was correct in his holding that “the burden of proving by a preponderance of the evidence that the stocks belonged to the deceased at the time of his death was upon the estate.” (See Mohlke v. People, 117 Ill. App. 595, 599; Martin v. Martin, 174 Ill. 371, 373.) In the Martin case it is said (italics ours):

“On the hearing in the circuit court the executors . . . voluntarily, and properly, as we think, assumed the position of petitioners or complainants and the defendant in error the position of defendant.
“The petition averred that the notes in question were in the possession of the defendant in error under the claim they were her private property. The law will not require one in the possession of a chattel or security, negotiable or otherwise, under claim of ownership, to deliver the same over upon the mere adverse claim of another, but will only disturb such possession upon proof of the right of such adverse claimant,— that is to say, the presumption of the law is that one so in possession is prima facie entitled to remain in the possession until the contrary is made to appear by proof. Any other rule toould require every citisen to yield to the mere assertion of another. It therefore became incumbent upon the petitioning executors, in order to obtain favorable action upon the part of the court, to introduce such proof as would warrant an order that the defendant in error should deliver up possession of said notes. This they essayed to do.”

In the subsequent case of Rothwell v. Taylor, 303 Ill. 226, 231, in commenting upon the decision and holdings in said Martin case, our Supreme Court says: “The decision of the case was correct, for other proof than possession of the donee warranted the conclusion that the donor delivered the notes to the donee with intent to pass the title thereby. ’ ’ There is such other proof in the present case.

Counsel for the estate also contend in substance that because it does not appear from the evidence that (after Maxwell M. Jones in his lifetime had by bills of sale sold and transferred the stocks to Anna S. Jones) such sales and transfers had been noted or registered on the books of the respective corporations which had issued the stocks, the title to the stocks never passed to Anna S. Jones. In our opinion the contention is without merit. In 12 Fletcher’s Cyclopedia on Corporations (Permanent Edition, 1932), § 5496, it is said: “Even where the charter or bylaws of a corporation, or the general law under which it is organized, provide that its stock shall be transferable only on the books, it is well settled that as between the parties, an unregistered transfer is valid. . . . The entry of the transfer on the books is not necessary for the translation of the title, or, in other words, as behveen the parties the title passes by contract and not by the record. . . . An unregistered transfer is also good as against all persons standing in the shoes of the transferor, as, for example, his executor or administrator, or his heirs, ...” Numerous adjudicated cases are cited by the author in accompanying notes in support of the text, including the case of Hogg v. Eckhardt, 343 Ill. 246. In that case it is said (p. 252): ‘1 The law has been generally established that as between the parties the transfer of stock by delivery of the certificate, with power of attorney or endorsed in blank, passes title without the transfer on the books of the company.” (Citing two prior Illinois cases.) And it is also said in the case (p. 253): “Possession of stock certificates endorsed in blank is prima facie evidence of ownership in the possessor, and the burden of producing evidence on the question of ownership rests upon the person disputing such ownership.” (Citing Hogg v. Holmann, 323 Ill. 545, 554, 555.) In the present ease it appears from, the bills of sale introduced in evidence that as regards some of the stocks the certificates bore the indorsement in blank of Maxwell M. Jones by signature made several years prior to his death.

For the reasons indicated the judgment of the circuit court of May 4, 1933, should be affirmed and it is so ordered.

Affirmed.

Sullivan, P. J., and Scanlan, J., concur.


author: Mr. Justice Scanlan

text:
    Henry A. Gardner, Appellee, v. Railway Express Agency, Inc., Appellant.
    Gen. No. 36,816.

      Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Cutting, Moore & Sidney, for appellant; A. M. Hartung, J. D. Dickerson and R. F. Himmelhoch, of counsel.
    Urban A. Lavery and Erwin W. Roemer, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff sued defendant in assumpsit. A jury returned a verdict finding the issues for plaintiff and assessing damages at $1,300. Defendant has appealed from a judgment entered upon the verdict in the sum of $1,160.

The declaration alleges, in substance, that defendant was a common carrier for hire and that on May 9, 1930, plaintiff delivered to it at Greenwood, Virginia, his horse, of the value of $2,500, to be taken care of and safely carried by defendant from Greenwood, Virginia, to Chicago, Illinois, and to be safely delivered by defendant to plaintiff at said last mentioned place; that in consideration of a certain reward to be paid to defendant by plaintiff defendant on said date promised plaintiff to take care of the horse and safely carry it from Greenwood, Virginia, to Chicago, Illinois, and to safely deliver it to plaintiff at said last mentioned place; that although defendant received the horse in good order it did not regard its promise to take care of the horse and safely carry it from Greenwood, Virginia, to Chicago, Illinois, and to safely deliver it to plaintiff at said last mentioned place, and defendant so carelessly behaved itself in respect to the horse that by and through the negligence and improper conduct of defendant’s servants the horse was bruised and injured and lessened in value to the amount of $1,800, to the damage of plaintiff in the sum of $1,800.- An amended declaration filed was in substance the same as the original save that it alleges that Winnetka, Illinois, was the point of destination and that the value of the horse was $1,800. Plaintiff, upon order, filed a bill of particulars, which recites, inter alia, that the claim for damages was based upon the breach by defendant of a certain written contract made between plaintiff as consignee and defendant as a common carrier, a copy of which was attached to and made a part of the bill of particulars. The only parts of the contract necessary to mention are the following:

“Section 5. The shipper agrees that the express company shall not be liable for the conduct or acts of the animals to themselves or to each other, such as biting, kicking, goring, or smothering, nor for loss or damage arising from the condition of the animals themselves or which results from their nature or propensities, which risks are assumed by the shipper.
“Section 8. The shipper agrees that as a condition precedent to recovery hereunder, for loss or injury or damage to, or delay in delivery of this shipment, such loss, injury, damage or delay shall be proved by the shipper to have been caused by negligence of the carrier. ...”

Defendant filed the plea of general issue, special pleas relying on sections 5 and 8 of the contract, and also a plea of set-off for unpaid carriage charges, amounting to the sum of $140.

The undisputed evidence shows that the horse was delivered to defendant at Greenwood, Virginia, in sound condition and that when it arrived in Winnetka it was seriously injured. While plaintiff insisted at the trial, and here insists, that proof of delivery of the horse to defendant in good condition and its delivery to plaintiff in a damaged condition made out a prima facie showing of negligence on the part of defendant in the handling of the horse, nevertheless, plaintiff saw fit to offer proof tending to prove negligence on the part of defendant. No one representing plaintiff accompanied the horse on any part of its journey. Plaintiff’s proof tended to show that at the time the horse was delivered at Winnetka there was no straw on the floor of the car; that there were no stalls or partitions in the car; that the horse “was tied at one end of the car by a rope passing from one side of the car through the halter then through the horse’s mouth then through the halter on the other side of the horse’s head and then fastened to the other side of the'car”; that the car, at the time of delivery, was next to a loading platform which was 14 to 18 inches lower than the floor of the car; that a certain chute or runway with a wooden railing on each side was placed against the car door and on the unloading platform and that the top of the chute was a couple of inches above the floor of the car so that it was necessary for the horse to step up to the chute and then down on it in order to reach the loading platform; that the lintel of the car door was so low that when the horse stepped up on the top of the chute his withers grazed the lintel and caused him to hack up; that there was' nothing in the car but the horse; that there was no partition about him nor anything in the nature of a temporary crate about him. In his opening statement counsel for defendant said that defendant would prove that the horse was forwarded in what is known as a portable stall; that is, a stall made up .of five sections, floor board, sides, back and gate; that the horse was loaded by the shipper in the presence of one of the, express messengers; that an express messenger always rode with the horse during the journey; that the horse was fed and watered, and that defendant’s evidence would show that the injuries and damage to the horse occurred in spite of all the care that experienced employees could give it; that the injury and damage were caused solely by the fact that the horse was high-strung and of a nervous temperament. Defendant, however, failed to introduce any evidence in support of the opening statement. In fact, the only evidence introduced by it was a certified copy of the tariffs filed by it with the Interstate Commerce Commission.

As the case involves an interstate shipment the federal law governs it.

Defendant contends that the evidence offered by plaintiff did not tend to show that the injuries in question were the result of any negligence of defendant or its servants. While plaintiff contends that the evidence offered by him was sufficient to make out a prima facie showing of negligence, in the view that we have taken of this appeal, it is unnecessary for us to pass upon plaintiff’s contention. We may say, however, that it appears to be the position of defendant that not only was the burden upon plaintiff to prove negligence but that he must prove such negligence by direct evidence. It admits that plaintiff proved certain facts from which a court or a jury might infer negligence but insists that such proof is not sufficient. The general rule is that a party has the right to prove an alleged fact by direct or circumstantial evidence.

Defendant contends that “the primary question before the court is whether a plaintiff in a suit against a common carrier for negligent damage to a horse entrusted to that common carrier for transportation, can recover for such injury without any proof of any negligence whatsoever, when the contract of shipment upon which the plaintiff seeks to recover specifically requires that proof of negligence shall be a condition precedent to such a recovery. The court below sustained such a recovery, and thus sanctioned a violation of a specific term of the contract. . . . The court at the conclusion of all the evidence overruled defendant’s motion for a directed verdict. The question therefore is squarely presented whether upon such a record, with such a contract authorized and approved by the Interstate Commerce Commission, the plaintiff can recover without complying with the terms of that contract requiring ‘proof of negligence by the shipper.’ ” Defendant makes the following statement in reference to the foregoing contention: “We are quite willing to admit that any contract exempting a carrier from liability for its own negligence is not a fair and reasonable contract, as determined by the federal courts, and is therefore unenforcible; and, of course, such a contract can gain no validity from being filed with the Interstate Commerce Commission. This was the sole question involved in Boston & Maine Rd. v. Piper, 246 U. S. 439. The court there construed the provision contained in the contract limiting the liability of the carrier as one exempting that carrier from liability for negligence and so held it void.” In support of this contention defendant relies upon section 8 of the contract and assumes that plaintiff offered no evidence sufficient to make out a prima facie case of negligence.

As the crux of this case is section 8 of the bill of lading it is well to repeat it:

“Section 8. The shipper agrees that as a condition precedent to recovery hereunder, for loss or injury or damage to, or delay in delivery of this shipment, such loss, injury, damage or delay shall be proved by the shipper to have been caused by negligence of the carrier. ...”

Defendant contends that under this provision the burden is upon plaintiff to prove specific negligence and that plaintiff cannot rely upon any presumption of negligence arising from the delivery of the horse in a damaged condition. In considering this contention it must be borne in mind that plaintiff, in the shipment of the horse, paid the full, regular tariff charge for the carriage, based upon the stated value of $1,800. Plaintiff contends: “(A) Any contract for the interstate transportation" of property which attempts, either directly or indirectly, to exempt a carrier from its own negligence is void. ” “(B) Such a provision gains no validity because it is included in tariffs filed by the carrier with the Interstate Commerce Commission.” “(C) Section 8 of Carrier’s Bill of Lading is void because it conflicts with the provisions of the First and Second Cummins Amendment to the Interstate Commerce Act.” Plaintiff further contends that “under the Bill of Lading sued upon and at common law proof of delivery of the shipment to the carrier in good condition and its delivery to the consignee in a damaged condition makes a prima facie showing of negligence on the part of the carrier in the handling of the shipment.”

Under the federal law a carrier cannot exempt itself from liability for its negligence by provisions in a bill of lading. (See Brennan Packing Co. v. Mellon, 252 Ill. App. 522, 532, 533, and cases cited therein. See also Cau v. Texas & Pac. Ry. Co., 194 U. S. 427; New England Fruit & Produce Co. v. Hines, 97 Conn. 225, 234, and also the federal cases cited therein.) Defendant concedes the foregoing to be the law and that “a carrier cannot contravene a positive requirement of the federal statute simply by filing that contract with the Interstate Commerce Commission as a part of its schedules.” It contends, however, that section 8 does not exempt it from its own negligence but that under the contract “proof of negligence of the carrier must be made as a condition precedent to that carrier’s liability for loss, damage or delay, and proof of delivery to the carrier in good condition and its delivery to the consignee in a damaged condition is not sufficient.”

Long before the passage of the Interstate Commerce Act and the amendments thereto our Supreme Court (in Adams Express Co. v. Stettaners, 61 Ill. 184), after holding that a carrier cannot by contract exempt itself from the exercise of reasonable care and that where goods fail to arrive at their destination and the carrier does not show the manner of their loss the presumption arises against it of want of ordinary care, said:

“This rule is reasonable and just. The carrier alone has it in his power to show what has become of the goods, or why they ivere not duly delivered. He has the means of tracing them from the moment of their shipment. The shipper has not. He can only show that he delivered them safely to the carrier, and unless the rule in question is applied, the shipper would practically have no remedy, even though his goods had been plundered by the very servants of the carrier. It would very rarely be in his power to make the necessary proof.” (Italics ours.)

This statement as to the reason for the rule has been generally indorsed and the common sense and justice of the same has never been successfully challenged. The position of defendant in the instant case is not a novel one. Carriers have frequently attempted, by stipulations in the contract of shipment, to relieve themselves from liability for losses occasioned by their negligence, but such stipulations have been considered as attempts to evade the law and of no effect in exonerating them from their negligence.

Defendant concedes that the validity of section 8 has not been passed upon by the federal courts, but it insists that it has been approved by several state courts and it cites in support of this statement the following cases: Gruenwald v. American Ry. Express Co., 217 N. Y. S. 767; Grant v. American Ry. Express Co., 126 Me. 489; Fry v. American Ry. Express Co., 142 Atl. 568, and Bell v. American By. Express Co., 84 N. H. 273. The first case cited is a nisi prius decision (Municipal Court of the City of New York) in which the validity of the provision was not questioned. From a reading of the opinion it is apparent that the court assumed the validity of the provision and enforced it. In the second case, if the provision played any real part in the determination of a somewhat odd case, under the facts, it is quite clear that the validity of the provision was assumed. In the third case the validity of the provision does not appear to have been questioned and the decision was that because the contract which contained the provision in question had been approved by the Interstate Commerce Commission it was binding upon the parties. As we have heretofore stated, a provision gains no validity because it is included in tariffs filed by a carrier with the Interstate Commerce Commission.

1 ‘ Contracts of shipment in contravention of the settled principles of the common law preventing the carrier from contracting against liability for loss or damage resulting from his own negligence, are invalid. The fact that such contracts have been filed with the Interstate Commerce Commission does not modify this rule.” (Roberts Federal Liabilities of Carriers (2d ed.) 1929, Vol. 1, Sec. 373, p. 725.)

“In the bill of lading, now under consideration, there is an express agreement limiting liability from unusual delay and detention, caused by the carrier’s negligence, to the amount actually expended by the shipper in the purchase of food and water for his stock while so detained. This stipulation contravenes the principle that the carrier may not exonerate itself from losses negligently caused by it, and is not within the principle of limiting liability to an agreed valuation which has been made the basis of a reduced freight rate. Such stipulations as are here involved are not legal limitations upon the amount of recovery, but are in effect attempts to limit the carrier’s liability for negligence by a contract which leaves practically no recovery for damages resulting from such negligence. While this provision was in the bill of lading, the form of which was filed with the Railroad Company’s tariffs with the Interstate Commerce Commission, it gains nothing from that fact. The legal conditions and limitations in the carrier’s bill of lading duly filed with the Commission are binding until changed by that body (Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639, 654); but not so of conditions and limitations which are, as is this one, illegal, and consequently void.” (Boston & Maine R. R. v. Piper, 246 U. S. 439, 445. Italics ours.)

See also Chicago, M. & St. P. Ry. Co. v. McCaull-Dinsmore Co., 253 U. S. 97, 99. Other cases to the same effect might be cited but defendant concedes, in a statement heretofore quoted in this opinion, that a contract exempting a carrier from liability for its own negligence gains no validity by being filed with the Interstate Commerce Commission. In the last case (Bell v. American Ry. Express Co.), cited by defendant, the validity of the provision was not questioned and the decision turned upon an interpretation of its meaning.

Plaintiff contends that Sullivan v. American Ry. Express Co., 211 Mo. App. 123, 132, and Coustaline v. Louisiana Ry. & Nav. Co., 154 La. 667, are authorities in support of his contention that a provision such as section 8 is not one which defendant can enforce. We agree with plaintiff as to the effect of these two decisions, which are based upon the general rule that a carrier cannot enforce a stipulation in a contract which, in effect, is an attempt by it to relieve itself from liability for losses occasioned by its negligence. (See Hutchinson Carriers (3d ed.) p. 490, sec. 456.) Other authorities to the same effect might be cited if it were necessary.

Plaintiff contends and strenuously argues that “Section 8 of Carrier’s Bill of Lading is void because it conflicts with the provisions of the First and Second Cummins Amendment to the Interstate Commerce Act.” In support of this contention he cites Roberts Federal Liabilities of Carriers (2d ed.) Vol. 1, p. 704 et seq.; Barnes Limitations of Common Carriers’ Liability, pp. 108 & 109; In the Matter of Bills of Lading, 52 I. C. C. 671; Perishable Fruit Investigation, 56 I. C. C. 449, and North Packing & Provision Co. v. C. M. & St. P. Ry. Co., 801. C. C. 737. In reference to this contention it is sufficient to say that the effect of the Cummins Amendment was to nullify provisions limiting liability contained in public tariffs and in bills of lading (see Roberts Federal Liabilities of Carriers, supra) and that the Second Cummins Amendment did not change the First Cummins Amendment in that regard. (Barnes Limitations of Common Carriers’ Liability, supra.)

In Hartford Live Stock Ins. Co. v. Ry. Express Agency, Inc., 274 Ill. App. 585, wherein we are this day filing an opinion, we said:

“To hold that the shipper must allege and prove the specific acts of negligence that caused injury or death to live stock in transit while unaccompanied by a caretaker and while under the sole control and direction of the carrier, it would be to say ‘that the shipper must establish facts that lie exclusively within the possession and control of defendant,’ and would leave the shipper without remedy or even hope of having his rights protected other than as the same might be protected by the testimony of those whose interest lay not with the shipper but opposed to him. The result would be that it would be practically impossible in any case to show such negligence on the part of the carrier as would warrant recovery.”

That language applies with equal force to the question now before us. In our opinion section 8 is, in practical effect, an effort by the carrier to exempt itself from liability for its negligence and that to enforce this section would be to place upon a shipper a burden that in nearly every case he could not successfully carry. The Interstate Commerce Act, and the amendments thereto, never contemplated any such injustice to the shipper. We hold that section 8 is not binding upon plaintiff.

Defendant contends that the court committed several errors that bear upon the question of damages, but it is entirely unnecessary for us to consider these alleged errors as defendant has not by any assignment of error raised the point that the amount of the verdict is excessive.

Defendant contends that the court erred in giving to the jury, at the instance of plaintiff, the following instruction:

“If you find from all the evidence and under the instructions of the court that at the time plaintiff delivered the horse in question to the defendant at Greenwood, Virginia, the said horse was in a sound condition and uninjured; and if you further find that at the time of the delivery of said horse to the plaintiff by the defendant, at Winnetka, Illinois, on May 11, 1930, the said horse was bruised, cut and injured; and if you further find that the said bruising, cuts and injuries were not caused by the inherent vice or vicious qualities of the horse itself, then the plaintiff has made out a prima facie case against the defendant entitling him, in the absence of proof to the contrary, to recover from the defendant.”

The principal criticism of this instruction is that the contract required plaintiff to prove negligence as a condition precedent to recovery and that the instruction ignores this requirement. If we are correct in our ruling as to section 8 there is no merit in defendant’s contention.

The judgment of the circuit court of Cook county is affirmed.

Affirmed.

Sullivan, P. J., and Gridley, J., concur.