author: Mr. Presiding Justice Barry

text:
    George W. Miller, Appellee, v. Mobile & Ohio Railroad Company, Appellant.

      Heard in this court at the February term, 1931.
    Opinion filed February 1, 1932.
    Rehearing denied March 4, 1932.
    Lansden & Lansden, L. R. Stewart and R. Wallace Karraker, for appellant; Carl Fox, of counsel.
    H. A. Spann, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee owns and resides upon 13 acres of land immediately west of appellant’s railroad at the Village of Mill Creek. His land and all other land just west of the railroad is lower than the railroad embankment. A little farther west the land is much higher. The low land between the railroad and the high land to the west is only 20 feet in width a short distance south of appellee’s property and going north from that point it widens until it is 500 or 600 feet wide about a half mile north of appellee’s property, thus forming a basin. Lingle Creek comes from the northwest and Heilig Creek from the north toward that basin and about a mile north of appellee’s land and west of the railroad those two creeks join and form Mill Creek which flows to the southeast. The natural flow of the water is from the north and northwest to the southeast. The railroad crosses Mill Creek on a trestle and prior to 1925 appellant took care of the overflow from those creeks by means of a 36-foot trestle about one-half mile north of appellant’s land.

In 1925, appellant filled that 36-foot trestle with earth and substituted a five-foot tile drain to carry the water. In 1928, appellant raised its tracks about 14 inches along the east side of the basin above described. Frequent rains in June, 1928, and in January, 1929, flooded the basin including appellee’s premises by reason of the changes aforesaid which obstructed the natural flow of the water. Upon about five acres of appellee’s land the water stood about three feet deep for several hours at a time. It came into his house and other buildings carrying mud and debris, filled his well and damaged and destroyed his personal property.

Appellee brought this suit in 1929. The gist of his declaration is that since 1924 appellant raised its embankment, closed some openings therein and shortened others through which the water had been previously carried away; that thereafter it negligently maintained its embankment in that condition without providing necessary openings to allow the water to follow its natural course and thereby caused the flooding of his premises, the damage of the same and the damage and destruction of his personal property during the years 1928 and 1929. Appellant filed the general issue and a special plea to the effect that its road-bed and embankment were constructed more than 25 years prior to the commencement of the suit and that the same has been continuously used and maintained by appellant in the operation of its road. To that plea appellee replied that the same was not used for that length of time in the present condition, etc. Appellant rejoined that the changes made did not increase the flow of the water, upon appellee’s premises. The trial resulted in a verdict and judgment for $800, a little less than the amount of appellee’s loss and damage to personal property as testified to by him.

Complaint is made of rulings on instructions. It is said that appellee’s fourth instruction is erroneous but no error is pointed out and no question is presented for our consideration. It is suggested that appellee’s sixth, eighth and eleventh instructions ignored the defense set up in the special plea. The declaration was based upon changes made in the embankment since 1924 and there was no charge of negligence in the original construction thereof. The plea simply raised a false issue and it was properly ignored. Appellant clearly had no prescriptive right to maintain its embankment in the condition it was after the changes made subsequent to 1924. Appellant argues that the eighth and eleventh instructions also ignore the defense, of extraordinary and .unprecedented rainfall, or in other words the defense that appellee’s damages were caused by “An act of God.” Some of appellant’s given instructions informed the jury that if they believed from the evidence that the damages were caused by unprecedented rainfalls there could be no recovery. The jury found in answer to a special interrogatory submitted by appellant that the rainfalls were not unprecedented.

Appellant says that the court erred in giving appellee’s seventh instruction as to the measure of damages. It was proven, without objection, that the loss and damage to personal property, cleaning up, etc., was more than $800, and that the real estate was damaged to the extent of $1,500. The verdict was for $800, so that it is clear that the jury was not misled by that instruction.

Appellant insists that the evidence does not support the special finding of the jury to the effect that the rainfalls were not unprecedented. A party changing or restraining the flow of water must provide against the consequences of unusually heavy rainfall, and is liable for damages caused by a failure to make such provision. Whether the rainfalls which caused the overflow were so heavy and unprecedented that the damage may be regarded as caused by “An act of God,” so as to relieve a defendant from liability, is a question of fact for the jury. Chicago P. & St. L. Ry. Co. v. Reuter, 223 Ill. 387. And if the defendant was guilty of negligence but for which the damage would not have occurred, he cannot escape liability on the ground that the rainfall was “An act of God.” Before he can invoke the rule, he must be free from negligence which was a proximate cause of the damage. Wald v. Pittsburg, C., C. & St. L. R. Co., 162 Ill. 545; Taylor v. Chesapeake & Ohio Ry. Co., 84 W. Va. 442, 7 A. L. R. 112. In view of the fact that appellant changed the opening in its embankment from a 36-foot trestle to a five-foot drain tile, we cannot say that there was no evidence of negligence.

At appellant’s request the jury was asked, if, in January, 1929, the washing out of a public highway bridge across the canal impeded the flow of water through the canal so as to substantially increase the flow of water along the west side of appellant’s embankment upon and across appellee’s premises, and the answer was in the negative. The jury was fully instructed that if the flow of water was so increased over appellee’s property, appellant was not responsible for such increase and that no damages should be allowed therefor. That was a question for the jury and we cannot say that their conclusion should be set aside.

Appellant contends that the court erred in modifying its last instruction. The first part of the instruction was: “The Court instructs you that if you believe from the evidence that the defendant maintained its road-bed and railroad embankment at the location in question as a permanent structure for more than 20 years prior to 1925”; at that point the court inserted — • “and that the same was constructed without negligence” and the instruction proceeds — “you cannot allow the plaintiff any damages in this case unless you further believe from the evidence that the changes made in said embankment and the openings therein during and after the year 1925 increased the flow of water over the plaintiff’s property and premises in times when the rainfalls which occurred were of such character as could have been reasonably anticipated and which were not unprecedented in their nature and extent.” It is claimed that the words inserted by the court authorized the jury to determine whether the embankment was originally constructed in a negligent manner and that if it was they could allow damages therefor.

The instruction as asked should have been refused. There was no claim in the declaration that there was any negligence in the original construction. Appellant clearly had no prescriptive right to maintain its embankment in the condition it was after the changes made in 1925 and thereafter. There was no evidence that tended in the slightest degree to prove negligence in the original construction. All of the evidence was directed to the changes made after 1924 and to the damages that subsequently accrued. We are satisfied that the jury could not have been misled by the modification of the instruction. Appellant says the court erred in refusing five of its instructions, but the alleged error is not pointed out. Some of them were clearly erroneous and the others were covered by the given instructions. No reversible error has been brought to our attention and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Pope County State Bank, Appellee, v. U. G. I. Contracting Company, Appellant.

      Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    Rehearing denied March 8, 1932.
    John W. Browning, for appellant.
    Durfee & Holmes, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

This suit was brought by appellee as assignee of the Evansville Sand & Gravel Company under section 18 of the Practice Act, Cahill’s St. ch. 110, H18. The declaration consists of the common counts. Appellee recovered on the theory that there was a stated account. Appellant insists that there was nothing in the bill of particulars to show that the suit was based upon an account stated. We cannot consider the bill of particulars because it has not been preserved in the bill of exceptions. Star Brewery v. Farnsworth, 172 Ill. 247. Appellee insists that upon the argument of the motion for a new trial appellant waived all questions except that the verdict is contrary to the evidence and that this fact appears in the judgment order. If appellant waived any of its grounds for a new trial that is a fact which should have been preserved in the bill of exceptions.

The evidence fails to show an account stated. On June 9, 1925, appellee’s assignor agreed in writing to rent to appellant a derrick boat, a steam boat, two dredge boats and four barges for the snm of $360 per day. Appellee’s assignor was to furnish all of said boats and barges with full crews for one 10-hour shift, pay all wages and board, supply coal, oil and all supplies, pay for all repairs and all operating expenses and assume all responsibility regarding the equipment.

A few days later the parties entered into a supplemental agreement to the effect that the lump sum charge of $360 per day should be divided as follows: For the derrick $70.00 per day of 10 hours; For the steam boat , _ 85.00 per day of 12 hours; Each of the two dredge

boats 85.00 per day of 10 hours; Three barges at $10.00 per'

day 30.00 per day One barge 5.00 per day.

Total for outfit $360.00

After the making of the original contract appellee’s assignor was paid each week. Credits were allowed to appellant for the time that the barges were not in use for as much as ten hours per day. All of the equipment was released by appellant in the fall of 1925.

On March 15, 1926, appellee’s assignor made out a bill against appellant in which appellant was charged with the use of the barges for 14 additional hours in each day from June 9, 1925 to July 27, 1925, making a total charge of $2,401. The president of appellee’s assignor testified that appellant’s engineer called him on the telephone and said: “Eichel, you’ve got me on the barge claim. I have o.k’d your bill for $2,401.00.’’ Appellee’s claim is based solely upon that testimony. No evidence was offered to show that the barges were actually used 24 hours per day. In fact, the president of appellee’s assignor admitted on the witness stand that they were not used 24 hours per day. The alleged telephone conversation was denied by two witnesses, who testified that they were present in the office when McCormick conducted the telephone conversation and that McCormick did not make the statement above quoted.

But without regard to that alleged conversation and the contradiction thereof, it clearly appears from'the supplemental contract that the charges for the equipment were on the basis of 12 hours per day for the steamer, 10 hours per day for the derrick and dredge boats, but that there was no limitation as to the number of hours per day for the use of the four barges. The evidence is undisputed that when weekly payments were made, credits were allowed appellant for the time the barges were not in use. The last weekly settlement was made several months prior to the time it is claimed that the account stated was made out.

There is no evidence that there was any agreement or understanding that appellant was to pay more than $35 per day for the use of the four barges. That amount was fully paid with the exception of such credits as were agreed upon and allowed. Under the supplemental contract there was no basis for a claim that appellant should pay more than $35 per day for the use of the barges.

An account stated cannot be made the instrument to create an original liability; it merely determines the amount of the debt where liability previously existed. 1 C. J. 699; 45 L. R. A. (N. S.) 535, note. An account stated only determines the amount of the debt where a liability exists, and cannot be made to create a liability per se where none before existed. Stocking v. Seed Filter & Mfg. Co., Inc., 162 N. Y. S. 451. An action at law on an account stated lies only where there have been transactions previous to the statement of the account which created the relation of debtor and .creditor. Cavanaugh Bros. Horse Co. v. Gaston, 255 Mass. 587, 152 N. E. 623.

While appellee’s assignor and appellant had previous dealings, yet several months before the alleged account stated came into existence those transactions had been fully settled and at the time the alleged account stated came into existence there was no existing liability and there was then no relation of debtor and creditor. The judgment is contrary to the law and the evidence and is reversed with á finding of facts.

Reversed with a finding of facts.

The clerk will insert in the judgment the following: “The Court finds that there was no account stated within the meaning of the law and that appellee was not entitled to recover. ’ ’


text:
    American Surety Company of New York, Appellant, v. Earl D. Amsler, Receiver of the Merchants State Bank of Centralia, Appellee.

      Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    Rehearing denied March 4, 1932.
    Kramer, Campbell, Costello & Wiechert, for appellant.
    R. J. Branson and June C. Smith, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

The Merchants State Bank of Cehtralia was appointed by the United States District Court for the Eastern District of Illinois, as an official depository for the purpose of accepting deposits from the trustees and receivers of bankrupt estates, and executed a bond to the United States for $50,000 with appellant as surety. The auditor of public accounts of the State of Illinois closed the bank on December 6, 1930, took possession of its assets, and appointed a receiver. At that time several trustees of bankrupt estates had on deposit in said bank various sums amounting in all to more than $48,000. Appellant paid the United States the amount of such deposits and filed a claim, as subrogee, with the receiver for the amount so paid, asking that it be made a preferred claim. The court allowed the claim but held that appellant was not entitled to a preference.

Appellant contends that it is entitled to a preference under sections 3466 and 3468 of the Eevised Statutes of the United States. In addition to those sections appellant relies largely upon Bramwell v. United States Fidelity & Guaranty Co., 269 U. S. 483, 46 Sup. Ct. 176; 299 Fed. 705; 295 Fed. 331. In the Bramwell case the United States was guardian of the Klamath Indians and as such guardian supervised and managed their affairs, collected and disbursed funds intended for their benefit, and was entitled to sue to enforce and protect their rights. In that case Indian funds were deposited in a bank which were secured by a bond in the sum of $100,000. The court held that as the United States was guardian for the Indians and their funds, the deposits were a debt owing by the Bank to the United States within the meaning of section 3466 of the Revised Statutes aforesaid. In the opinion of the District Court in that case, 295 Fed. 331, it is said: “The debt here in question was due from the bank to the United States, both by the terms of the deposit and the condition of the bond given for its security. The United States was the only party to which the obligation ran, and which could enforce it. It is true the money was held in trust for the use and benefit of the Indians, but that does not make the indebtedness of the bank any the less an indebtedness to the United States.” In the opinion of the Circuit Court of Appeals ,in that case, 299 Fed. 705, it was said: “Notwithstanding that the money on deposit with the bank stood in the name of the Indian agent and was held for the use and benefit of the Indians as their property, there can be no question but that it represented a debt due from the bank to the United States. This is recognized in the terms of the bond which was given to secure its payment, and it is the generally accepted doctrine as to all moneys held by officers of the United States in trust for the use and benefit of the Indians. The United States, under its treaty with the Klamath Indians, was the guardian of the Indians on the reservation.” In that case it was held that the surety company, having reimbursed the United States for the amount on deposit in the bank at the time it failed, was entitled to a preference.

In the case at .bar .the United States was not the guardian of the trustees in bankruptcy who made the deposits, nor was it a guardian for the bankrupt or Ms creditors. The statute under which the bank executed the bond in question expressly provides that such bond may be sued upon in the name of the United States, for the use of any person injured by a breach of its conditions. If the same deposits had been made in a bank which had failed to execute a bond to the United States, no one would seriously contend that the bank was indebted to the United States. The United States had no right, title or interest as guardian, trustee or otherwise in the funds deposited. As we understand the Bankruptcy Act, a bond of this character is taken from the depository as a matter of convenience. One bond is taken to the United States for the benefit of all trustees and receivers who made deposits in the bank, instead of leaving it to each trustee or receiver to require a separate bond for their deposits.

The question presented by this record was passed upon and it was held that the surety was not entitled to a preference in each of the following cases: Andrew v. Crawford County State Bank, 208 Iowa 1248, 224 N. W. 499; a petition for certiorari was denied in Royal Indemnity Co. v. Andrew, 281 U. S. 725, 50 Sup. Ct. 239; Hartford Accident & Indemnity Co. v. Green (Ala.), 134 So. 487; American Surety Co. v. Royall, 160 S. C. 1, 158 S. E. 127.

Appellant contends that those cases are not in point because the courts improperly refused- to follow the Bramwell case, supra. In our opinion the Bramwell case presented an entirely different situation and is not applicable. Appellant insists that his position is fully sustained by Union Indemnity Co. v. Florida Bank S Trust Co., 48 F. (2d) 595, and the decision of the court of common pleas of Anderson county, S. C., in Fidelity & Casualty Co. v. Bank of Anderson. The latter opinion was by Judge Bonham who later became a member of the Supreme Court of South Carolina arid wrote the opinion in American Surety Co. v. Roy all, supra, in which the Supreme Court of South Carolina held that this same appellant was not entitled to a preference under a similar state of facts. The Union Indemnity Co. case, supra, is an opinion by a United States District Judge who followed the Bramwell case, supra, without taking notice of the fact that in the Bramwell case the United States was a guardian-for the Indians and their funds.

In our opinion appellant was not entitled to a preference and the judgment is affirmed.

Affirmed.


text:
    Missouri State Life Insurance Company, Appellant, v. Estate of Ferdinand Kohl et al., Appellees.

      Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    Rehearing denied March 4, 1932.
    Warren Rogers, Carter, Jones & Turney, Wilson & Schmiedeskamp and Wilson & Wilson, for appellant.
    June C. Smith, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Williams Severns, A. Kohl and F. Kphl owned about 3,000 acres of land in Adams county but the legal title was in Severns. Appellant loaned them $175,000 evidenced by five notes executed by Severns, dated November 29, 1920, and secured by a mortgage on the land. Before the notes were delivered to appellant they were indorsed: “Demand notice of protest and protest waived A. Kohl — F. Kohl.” F. Kohl died March 3, 1926, and appellant filed its claim for $222,841.14 based upon the liability of deceased on his indorsements of the notes. The court disallowed the claim.

The notes were Missouri contracts and the rights of the parties under the indorsements must be determined under the laws of that State. The Missouri Negotiable Instruments Act is substantially the same as the Illinois statute and for convenience we will refer to the latter act: The parties agree that the indorsements were for value and not for accommodation. They were placed upon the notes before delivery and the liability created thereby was that of indorsers under section 64 of the act, Cahill’s St. ch. 98, 84, unless, as appellant contends, the waiver made the indorsers primarily liable. Appellees say the waiver only applies to the first indorser and that F. Kohl was an ordinary indorser and secondarily liable. It is unnecessary to determine which of these contentions is right. Appellees make no claim that F. Kohl was released from liability for the failure of appellant to make demand and protest, for the reason, no doubt, that the evidence shows an implied waiver.

On December 7, 1925, Severns, the mortgagor, conveyed the land to F. Kohl, who, by the terms of the deed, assumed and agreed to pay the mortgage. It seems that the deed did not convey all the land. On May 3, 1926, Severns made another deed, including all of the land, to Kohl’s wife as trustee under her husband’s will and by the terms of the deed she assumed the payment of the mortgage. On May 1, 1926, the trustee gave Burton D. Hurd a written option for the purchase of the land at $150 per acre on condition that within 60 days he should secure an extension of the mortgage until July 1, 1929. If he complied with the condition he was to receive a deed, assume the payment of the mortgage and give the trustee a second mortgage for the balance of the purchase price.

Hurd, on June 8,1926, procured an extension of the principal of the mortgage debt, on certain conditions, until July 1, 1929, and the payment of delinquent interest and the repayment of taxes advanced by appellant, until July 1, 1927. The trustee under Kohl’s will conveyed the premises to Hurd on July 1,1926, and by the terms of the deed he assumed the payment of the-mortgage and gave the trustee a second mortgage for $200,000. In April, 1927, appellant agreed to extend the time for the payment of the delinquent interest and taxes to July 1, 1929, but the agreement was simply to wait for money already due and owing and there was no consideration for that extension. In April, 1927, Hurd took out a life insurance policy for $100,000 payable to appellant as a creditor as its interests might appear. The undisputed evidence is that the issuance of the policy had no connection with the extension agreement.

Appellees contend that F. Kohl was only secondarily liable on his indorsements, that appellant extended the time of payment without his assent or that of his estate and that he and his estate were released under section 119 of the act, Cahill’s St. ch. 98, ft 141. We cannot agree with that contention. Hurd, who secured the extension, was not a party to the notes and had not even assumed the payment of the same at the time the extension was granted. An extension given to a stranger to a note will not operate as a release of one who is secondarily liable under said section of the act. Brosemer v. Brosemer, 162 N. Y. S. 1067. Appellees further contend that the extension was granted to a subsequent vendee who had assumed the payment of the mortgage, that it was given without the knowledge and consent of F. Kohl or his estate and without the assent of the mortgagor and that by reason thereof Kohl’s estate and the mortgagor were released from liability.

When the deed was made to F. Kohl he became a principal debtor and Severns a surety and under the agreement in the deed to Hurd he became a principal debtor and the Kohl estate a surety, yet that would be true only as between the parties to each deed. Severns and the Kohl estate are liable to appellant, the mortgagee, as principal debtors, unless appellant has released them from liability and has agreed to look solely to Hurd for payment. Webster v. Fleming, 178 Ill. 140; Scholten v. Barber, 217 Ill. 148. There is no evidence that appellant released Severns or the Kohl estate and agreed to look solely to Hurd for payment unless it can be said that there was a valid and binding extension agreement given to Hurd without the knowledge and consent of Severns and the Kohl estate which would have that effect.

The extension agreement of June 8, 1926, if made for Hurd and not the Kohl estate was not a valid and binding contract. When granted, Hurd had but an option to purchase the land. He had no title and had not assumed the payment of the mortgage. Hurd did not receive his deed until July 1, 1926. He did not assume the payment of the mortgage until that time. It was then, and not before, that he became a principal debtor and the Kohl estate a surety even as between themselves. The extension was not made to one who had assumed the payment of the mortgage at the time it was granted. An extension granted to a stranger to the debt is invalid.

In the option given to Hurd for the purchase of the land, the trustee of the Kohl estate required him to procure an extension of the mortgage before he could exercise his option and secure a right to a conveyance. That was sufficient, of itself, to show that the extension was not made without the knowledge and consent of the Kohl estate. Schafer v. Jackson, 155 Iowa 108, 135 N. W. 622. A lessor who stipulates in the lease that his lessee at his own expense may place buildings or improvements on the leased property thereby authorizes or knowingly permits the lessee to improve the property and he cannot avoid a mechanic’s lien occasioned thereby. Fehr Const. Co. v. Postl System, 288 Ill. 634.

There is other evidence that Kohl and his trustee were actively engaged in procuring an extension of the mortgage. It clearly appears that early in 1926, Kohl was being pressed for payment. Some of the notes were past due and the last one would be due July 1, 1926. Kohl met Hurd and was convinced that Hurd had a good plan for the development and sale of the land but it would take time to work it out. Kohl took Hurd to appellant’s office, explained the plan and told appellant’s president they wanted to enter into a contract by which the plan could be carried out; that if the contract was made Kohl would want an extension of the mortgage. Kohl and his wife called on appellant’s president on March 1, 1926. Kohl was then in very feeble health and was much worried about the mortgage and said he wanted an extension. The wife told the president that she feared her husband would not survive unless an extension was granted. The president told them that it would be granted and they could go home knowing that a satisfactory extension would be made at the proper time. On that day Kohl gave Hurd an exclusive agency contract and died two days later.

A few days after his death the attorney for his estate and Hurd called upon appellant’s president and the attorney told him about the agency contract Kohl had made with Hurd; that if an extension of the mortgage could be secured the Kohl estate would renew that contract and Hurd would handle the land for the estate. The president told the attorney that appellant would be glad to co-operate with the estate but before he would extend the mortgage he would have to investigate Hurd and inspect the land. On April 1,1926, the trustee under Kohl’s will renewed the agency contract between Kohl and Hurd and gave Hurd the complete management of the land. On May 4, 1926, appellant’s president wrote the attorney for the estate that on a certain day he would inspect the land and asked him to go along. On May 5, 1926, the attorney replied that he could not go, but that “Mr. Burton D. Hurd, the representative of the Kohl estate” would be there. The inspection was to be made to enable the president to decide whether the extension applied for by the attorney of the Kohl estate should be granted. When the attorney wrote the letter of May 5,1926, he did not inform appellant’s president that Hurd then held an option for the purchase of the land.

In a letter to Hurd, dated June 8, 1926, appellant’s president agreed to extend the mortgage on certain conditions. The letter was. handed to Hurd on that day and on the same day Hurd delivered it to the attorney for the Kohl estate. A week later, the attorney wrote appellant that Hurd had delivered to him the extension agreement, reciting the terms thereof, and closed by saying: “We appreciate this extension and we are confident that Mr. Hurd will be able to make sufficient sales of the property within the time allowed to comply with the conditions specified in President Singleton’s letter.”

Appellant’s president conducted all of the negotiations pertaining to the extension. He testified that when he granted the extension he had no information that Hurd held an option for the purchase of the land; that he dealt with Hurd as the representative of. the Kohl estate and though he was granting the extension to the estate. Hurd, a witness for appellees, testified that he did not think appellant’s president knew that he was a prospective purchaser of the land at the time the extension was granted. Under the evidence appellant’s president was fully justified in believing, from the representations made to Mm, that when he granted the extension it was for and on behalf of the Kohl estate and not to Hurd as a prospective purchaser in his own interest.

There is no escape from the conclusion that the extension was granted Avith the knowledge and consent of the trustee of the Kohl estate. We cannot agree with the contention that she had no power or authority to accept or agree to an extension. The land covered by the mortgage was devised to her as trustee with full power and authority to sell and convey by deed, mortgage or otherwise at her discretion and Avithout an order of court. Having the express power to mortgage the land she certainly had the power to secure and accept an extension of the existing mortgage. There is no evidence that the extension was made Avithout the knowledge and consent of Severas.

We have carefully considered all of the arguments presented and our conclusion is that appellant has done nothing that would release KoM or his estate from the liability he assumed by the indorsements in question. The judgment is reversed and the cause remanded with directions to allow the claim for the balance due on the notes, principal and interest, as a sixth class claim.

Reversed ■and remanded with directions.

The clerk will insert in the judgment the folloAving: “The Court finds that at the death of the deceased he was indebted to appellant for the balance due on the notes in question by reason of his . indorsements; that the alleged ■ extension was invalid and void but that even if it were valid it was granted Avith the assent of the deceased and his estate.”


text:
    Ellen James, Appellee, v. The National Life & Accident Insurance Company, Appellant.

      Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    Rehearing denied March 7, 1932.
    James K. Moran and B. E. Hamilton, for appellant; Karch, Hendricks & Moran, of counsel.
    Frank M. Summers, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court. •

Appellee sued on a life insurance policy and recovered á verdict and judgment. Appellant insists that thé judgment must be reversed, not because proofs of' death were- not furnished, but for the reason that appellee failed to show that they were. Before the trial appellee gavé appellant written notice to produce on the trial the proofs which she had submitted. The filing of the suit was also notice to produce the proofs. Appellee testified that she made application for payment' of the insurance on the proper forms but no payment was made.' Appellant offered no evidence tending to show that proofs were not furnished, that they were defective or that objection was made to them. It is a reasonable inference from the evidence that proofs were made. Continental Life Ins. Co. v. Rogers, 119 Ill. 47.

Appellant waived proofs of death. There was a judgment by default against appellant and a motion to set it aside. The motion was supported by the affidavit of one of appellant’s attorneys in which the defense to the suit was stated to be that the insurance policy contained a provision, in substance, that it was issued upon the assumption that at the time of its delivery the insurer was in sound health; that she was not then in sound health, but was suffering from pulmonary tuberculosis; that the policy was issued on October 5, 1927, and the insured died from that ailment on June 14, 1928, and by reason thereof the policy was never in force. By placing its defense upon that ground appellant waived all other defenses, and it would have been useless, under the circumstances, to furnish proofs.

The policy provides that “no obligation is assumed by the Company prior to the date hereof, nor unless on said date the insured is alive and in sound health. ’ ’ Appellant insists that this is a condition precedent and as appellee failed to prove that the insured was in sound health when the policy was delivered the judgment must be reversed under Weber v. Prudential Ins. Co., 284 Ill. 326; Ellis v. State Mut. Life Assur. Co., 206 Ill. App. 226; Hartsock, v. Kaskaskia Livestock Ins. Co., 223 Ill. App. 433, and other Appellate Court cases. In all of the cases just cited the applicants died before the policies were actually delivered. The cases were correctly decided but are not applicable to the situation here presented as the policy was delivered more than eight months before the death of the insured. In the other Appellate Court cases relied on by appellant, the policies were delivered but the courts improperly followed the rule of law laid down in the cases above cited. The distinction between cases where the policies were delivered and those where they were not was overlooked.

In the case at bar the application for insurance was signed on September 12, 1927, and appellant’s medical examiner found and reported that the applicant was a first class risk. The policy was issued October 3,1927, and delivered at a later date without making inquiry as to the condition of the health of the insured. We think that in such cases the correct rule of law is that if any length of time elapses between the making of the application and the issuing of the policy, it is the duty of the insurer to make inquiry when the policy is delivered. as to the condition of the health of the insured, and if it fails to do so the delivery is conclusive against the insurer as to the completion ■ of the contract. American Trust Co. v. Life Ins. Co. of Virginia, 173 N. C. 558, 92 S. E. 706; Grier v. Mutual Life Ins. Co., 132 N. C. 542, 44 S. E. 28; National Life Ins. Co. v. Grady, 185 N. C. 348,117 S. E. 289. We followed those cases in Hungate v. New York Life Ins. Co., in an opinion filed at the present term of this court.

It has been held that such a provision as the one in question merely means that the applicant has not contracted a disease between the date of the application and the issuance of the policy. Johnson v. Royal Neighbors of America, 253 Ill. 570; Western & Southern Life Ins. Co. v. Davis, 141 Ky. 358,132 S. W. 410; Modern Woodmen of America v. Atkinson, 153 Ky. 527,155 S. W. 1135; Chinery v. Metropolitan Life Ins. Co., 182 N. Y. S. 555. The provision does not apply to the condition that existed prior to and at the time of the making of the application. ■ If a condition so existing is relied upon as a defense it must be based upon some other provision of the insurance contract. In the case at bar there is no other provision. Appellant offered no evidence tending to prove that the insured contracted the disease which caused her death since the making of the application and before the issuance of the policy. On the contrary, it relies upon a statement in the death certificate that the insured had the disease for two years prior to her death.

It is argued that the policy does not make the application a part of the contract and for that reason the court erred in admitting the application in evidence. We are of the opinion that appellee was entitled to prove the fact that there was a' written application and the date thereof. The application itself was the best evidence of its having been made and of its date. From what we have said it follows, necessarily, that the court did not err in its rulings on instructions or in the admission or exclusion of evidence. The judgment is affirmed.

Affirmed.


author: Mr. Justice Edwards

text:
    Pearl McKinney, Defendant in Error, v. Cosmopolitan Life Insurance Company, Plaintiff in Error.
    Heard in this court at the May term, 1931.
    Opinion filed February 29, 1932.
    Ward P. Holt, Rufus M. Potts and C. W. Armstrong, for plaintiff in error.
    Harry F. Johnson and Smith & Smith, for defendant in error.
   Mr. Justice Edwards

delivered the opinion of the court.

Pearl McKinney, defendant in error, hereafter designated as plaintiff, sued plaintiff in error, to be hereafter referred to as defendant, to recover on a policy of insurance on the life of her deceased husband, Roy McKinney. At the trial, during the September term, 1930, defendant offered no evidence, and the court directed a verdict for plaintiff in the sum of $1,064. Judgment was at once rendered on the verdict, the date being November 18, 1930. On the following day, it still being of the same term of court, defendant filed its motion for a new trial. The motion was pending and undisposed of until the January term, 1931, when the court granted plaintiff leave to amend the declaration, and later, during- the same day, overruled defendant’s motion for a new trial. Defendant then moved in arrest of judgment, and the motion being overruled, has assigned the rulings of the trial court upon such motions, as error.

Three principal grounds are urged to reverse the judgment:

First, that the application of the insured contained certain warranties as to his condition of health at the time of the application, and when the policy was delivered ; that the application was a part of the contract of insurance; that there was a failure to aver and prove the truth of such warranties and representations, and therefore plaintiff was not entitled to a recovery. The provisions of the application, thus argued, are not shown in the abstract; consequently such questions are not before this court for review, since every matter upon which error is assigned must appear in the abstract of the record. City Electric Ry. Co. v. Jones, 161 Ill. 47.

Defendant, secondly, contends that the court erred in overruling its motion for a continuance of the cause. It appears that such motion was made and overruled at the September, 1930, term of court. Defendant did not move for, or take, a bill of exceptions at that term of court, challenging the correctness of the ruling, nor ask for an extension of time for such purpose. As a result, the question whether the court’s ruling on the motion was erroneous, is not saved for review. Bromwell v. Estate of Bromwell, 139 Ill. 424; Armstrong v. Wilkinson, 346 Ill. 322.

Lastly, defendant insists that error was committed by granting leave to amend the declaration, at the January, 1931, term of court.

Section 39 of the Practice Act, Cahill’s St. ch. 110, U 39, provides that the court, in civil cases, may grant leave to amend pleadings, etc., in any matter of form or substance at any time before, final judgment. It is obvious that the- decision of the question turns upon the character of the judgment rendered November 18, 1930. If it was final, the court had no power to permit the amendment; if not final, the amendment might be allowed in the court’s discretion.

In section 77 of the Practice Act, Cahill’s St. ch. 110, If 77, it is provided, among other things, that a motion for a new trial may be made before final judgment, or during the term at which judgment is entered, and that upon such motion being filed, final judgment shall be stayed until the motion is heard.

In the instant case, defendant, the day following the rendition of judgment, and at the same term, moved the court for a new trial. The effect of such motion has been several times before the reviewing courts of this State, and the settled rule now is that when such motion is so filed, it stays a final judgment in the cause until the motion is overruled. Village of Hinsdale v. Shannon, 182 Ill. 312; Hearson v. Graudine, 87 Ill. 115.

The judgment remained under judicial consideration during the pendency of such motion, and only took on .the character of finality when it was overruled.. People v. Gary, 105 Ill. 264.

The motion for a new trial was pending until the January, 1931, term, when it was overruled. The final judgment in the cause was therefore entered at said January term. Vogelsang v. Fredkyn, 133 Ill. App. 356.

The leave to amend was granted before the motion for a new trial was overruled, hence was previous to final judgment, and within the discretionary power of the court.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Fulton

text:
    L. F. Travers, Appellee, v. County of Richland, Appellant.
    Heard in this court at the October term, 1931.
    Opinion filed February 29, 1932.
    H. G. Morris, for appellant.
    Donovan D. McCarty and S. C. Lewis, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

L. F. Travers filed two claims against the county of Richland, as assistant janitor at the cqurthouse in Olney in the spring and summer of 1930 at the request of the sheriff. At the September meeting of the county board the claims were rejected and appellee appealed both claims to the circuit court. At the November term of that court, appellant moved to dismiss the appeal, which motion was overruled. At the April, 1931, term of said court, the case was tried on a stipulation of facts and no propositions of law were submitted. The circuit court allowed both claims of appellee and on April 22, 1931, entered judgment against appellant for $141, from which judgment appeal is brought to this court.

The appellant assigns as error the overruling of its motion to dismiss the appeal made at the November term and the allowance of the claims by the circuit court.

The stipulation of facts shows that the appellee had been employed as assistant janitor by the sheriff at various intervals during 1928 and 1929, and that his claims were alwáys paid by the county board. During the months of April and May, the sheriff employed appellee to assist the janitor in keeping the courthouse clean, during which time there was the regular term of the probate court and a term of the circuit court. Appellee worked 31 days during those months. During the months of June, July and August, appellee worked 39% days as assistant janitor at the request of the sheriff, during which time the regular janitor, who was also a deputy sheriff, spent a good deal of time helping the sheriff in extra duties outside, such as chasing bank robbers and recapturing them after their escape from the county jail. The price charged for services was $2 per day and the total amount claimed was $141. The claims bore the O. K. of the sheriff.

The stipulation further shows that appellee was never employed by the county of Richland and that one William Armsey 'was the regular janitor employed by resolution of the county board at a salary of $1,000 per year, and that he received his pay in full during the time for which appellee claims pay; also that no other provisions were made by the county board after April 1, 1930, for payment of janitor except to the regular janitor as above stated.

Appellant urges as grounds for reversal that because the county board did not fix any compensation for appellee, did not authorize his employment, and did not make any provision or appropriation covering his pay, no liability accrues against the county.

While it is conceded that the custody of the county courthouse and jail fall within the common-law powers and duties of the sheriff, no liability can accrue against the county for the payment of an additional janitor, until provision or appropriation has been made for the expense of same by the county.

Section 208 of Division One of the Criminal Code,' Cahill’s St. ch. 38, 436; Smith-Hurd Statutes ch. 38, par. 449, provides as follows: ‘ Every person holding any public office (whether State, county or municipal), trust or employment, who shall be guilty of any palpable omission of duty, or who shall be guilty of diverting any public money from the use or purpose for which it may have been appropriated or set apart by or under authority of law, or who shall be guilty of contracting, directly or indirectly, for the expenditure of a greater sum or amount of money than may have been, at the time of making the contracts, appropriated or set apart by law or authorized by law to be contracted for or expended upon the subject matter of the contracts, or who shall be guilty of wilful and corrupt oppression, malfeasance or partiality, where no special provision shall have been made for the punishment thereof, shall be fined not exceeding $10,000, and may be removed from his office, trust or employment. ’ ’

In the case of De Kam v. City of Streator, 316 Ill. 123, the court said: “In Coles County v. Messer, 195 Ill. 540 (a suit by a sheriff to recover from, the county expenses incurred by him in the performance of the duties of his office), it is said: ‘The county cannot be made liable for any expenditure unless the county board has fixed a sum for expenses and the-aggregate expenses are necessary and within the amount. The fact that nothing has ever been fixed expressly for expenses does not authorize a recovery for expenses any more than the. failure to fix compensation would authorize a recovery for reasonable compensation. If a county officer can recover from the county for expenses where no sum has been fixed or allowed for such expenses, he can. recover any amount, within the fees collected, which he necessarily expends, and the provision of the constitution under which the board has the absolute power to fix and limit expenses would be nugatory and of no avail. ’ The same principle applies here. In the absence of an appropriation there was no liability, and if it should be held that' there was a liability, the provision which the statute intended for the protection of tax-payers would be nugatory and of no avail.”

As the stipulation clearly shows that the appropriation for janitor made by the county board was for $1,000 only, and that amount was entirely exhausted by payment to the regular janitor, there was no liability against the county for the payment of these claims.

We therefore hold that the court erred in entering judgment on the claims for the appellee.

Judgment reversed with, finding of facts.

We find, as ultimate facts to be incorporated as part of the judgment in -this case, that no appropriation or- allowance for payment of the services of an additional janitor was ever made by the county board of Biehland county after April 1, 1930, and no liability was created against the said county on the claims filed by appellee.


author: Mr. Justice Eldredge

text:
    Ada Smoot, Appellee, v. A. G. Hollingsworth, Appellant.
    Gen. No. 8,559.

      Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    Murphy O. Tate, Leo M. Tarpey and Wilbur R. Wicks, for appellant; Wilbur R. Wicks, of counsel.
    H. M. Steely and H. M. Steely, Jr., for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

Ada Smoot, appellee, recovered a judgment against A. Gr. Hollingsworth, appellant, in the circuit court of Vermilion county to the amount of $7,500 for personal injuries sustained by her in an automobile accident. The case was originally brought against appellant and Oakley Hollingsworth, his son. During the trial the suit was dismissed as to the defendant Oakley Hollingsworth. In the first count of the declaration it is charged that on the 11th day of February, 1930, at about 7:15 o’clock p. m. while the plaintiff was standing on the south side of West Raymond avenue where the same intersects Vermilion street in the City of Danville and at a point two feet west of the west street car track and so standing and waiting at said point with two other persons for the purpose of becoming a passenger on a southbound electric street car and while exercising all due care for her own safety and as the street can was about to stop for the purpose of allowing the plaintiff to enter the same, the defendant A. Gr. Hollingsworth, who then and there owned an automobile, by. and through his agent, Oakley Hollingsworth, then and there so carelessly, negligently and recklessly drove said automobile on the west side of Vermilion street in a southerly direction and in front of said street car that he thereby caused said automobile to be brought into violent collision with the plaintiff and she was thrown with great force and violence in a southeasterly direction and in front of said street car and onto the pavement and was greatly bruised and permanently injured, her clothing torn and damaged, was hindered and prevented from attending to her business as a housewife and from attending to and transacting her business as a supply teacher in the city schools -in the City of Danville and was compelled to spend large sums of money in endeavoring to be cured. The second count includes a charge of negligence in that the automobile was driven at a high and dangerous rate of speed, to wit: 35 miles per hour, and greater than was reasonable and proper, having regard to the traffic and the use of the way, and so as to endanger the life or limb and injure the plaintiff. In the third count it is charged that the defendant by and through his agent Oakley Hollingsworth then and 'there so wilfully and wantonly drove, managed and operated said automobile on the west side of Vermilion street at a high and dangerous rate of speed of, to wit: 35 miles an hour and greater than was reasonable and proper -having regard to the traffic and the use of the way, etc.

The defendant, A. Gr. Hollingsworth, filed the plea of the general issue and two special pleas. The first special plea in substance alleges that said defendant at the time of the said supposed grievance above laid to his charge, in each count of the amended declaration, was not in possession of and did not drive, operate or control said automobile. The second special plea alleges in substance that said Oakley Hollingsworth in driving and operating the automobile was not the agent or servant of the defendant.

It is first strenuously insisted by counsel for appellant that the evidence in the record does not tend to establish the relation of master and servant or principal and agent between the defendant and his son Oakley Hollingsworth at the time of the accident. The defendant testified on direct examination as follows:

“Q. And on the day of this accident, February 11, 1930, did you have any visitors or guests at your house in Bismarck!
A. Two boys from southern Illinois were guests of the family and they had been at my house about two nights. They were on this trip with my son when the accident occurred.
Q. Now, that afternoon or that day what, if anything was said by you to your son about taking the automobile and taking them anywhere or entertaining them!
A. Well, I told him that morning to entertain the boys during the day and take the car that night and bring the boys to the show.
Q. And was it in pursuance of that he took the car and was bringing them down to the show!
A. Well, I suppose it was.”

And on cross-examination he testified as follows:

“My son was nineteen years of age at the time the accident happened. I kept the car for business and pleasure. I was not with my son on the night in question and was not driving the car. He called me a short time after the accident. Taylor Barger and Harley Frayser were the boys visiting at our home. They are not related to me or my son. They had been at my home about two nights. They were visiting the family. There were other people in the car besides these two boys from out of town. There were five or six others from Bismarck and they were not visiting at our house.”

Oakley Hollingsworth was the only witness produced by the defendant and his entire testimony in substance is as follows: “Iwas driving the car at the time of the accident in question. My father sent me to the show with these boys. He told me to go that morning. My father said nothing about taking the girls to the show. ’ ’

The doctrine has been definitely established in this State that the mere ownership of an automobile purchased by the father for the use and pleasure of himself and family does not render him liable in damages to third persons for injuries sustained through the negligence of his minor son while operating the same on a public highway in pursuit of the latter’s own business or pleasure whether with or without his father’s permission, but the liability, if any, rests upon the principle of agency. White v. Seitz, 342 Ill. 266. The contention in the case at bar is that Oakley Hollingsworth was not engaged on any business of his father in taking the family guests to the theater in the automobile. To this we cannot agree. The son was acting under specific directions of his father and was as much an agent of his father in driving the automobile at the time in question as a hired chauffeur would have been. Gates v. Mader, 316 Ill. 313.

It is urged that the court erred in refusing to direct a verdict under the third amended count charging wilfulness. The motion made at the close of the plaintiff’s evidence and repeated at the close of all the evidence is as follows: “Defendant, A. G-. Hollingsworth,, in writing, moves the court to exclude the evidence, and to direct the jury to return a verdict for the defendant, and in support of said motion alleged particularly the following reasons:” This motion goes to all the counts in the declaration and as the evidence fully sustains the first and second counts the trial court had no authority to direct a verdict-for the defendant. No such motion was made specifically as to the third count so the court had no opportunity of eliminating that count from the declaration if it had appeared proper to do so. Scott v. Parlin & Orendorff Co., 245 Ill. 460; Heidenreich v. Bremner, 260 Ill. 439.

It is claimed by defendant that there is a variance between the second count of the amended declaration and the proof adduced to sustain it in that the proof fails to show that the automobile in question was driven or caused to be driven by said defendant. The allegation in the second count charges, “said defendants then and there so carelessly, negligently and recklessly drove or caused to be driven an automobile, etc. ’ ’ The plaintiff did not dismiss her suit as to the defendant Oakley Hollingsworth until after she rested her case. This objection to the second count of the declaration was one of the causes alleged in support of the motion-for a directed verdict and as no separate motion was made specifically as to this count the question is controlled by the same rule as above announced as to the third count.

It is also urged that the plaintiff was guilty of contributory negligence in that she should have seen the automobile approaching and have gotten out of the way. She was where she had a right to be, standing on the crossing waiting to board the street car which was about to stop to permit her and her companions to enter. It is the duty of a driver of an automobile not to pass a street car which is discharging or taking on passengers, within a distance of 10 feet from the lowest step of the car, Cahill’s St. ch. 95a, fí 41; ch. 121, sec. 241, Smith-Hurd Rev. Stat. She had no reason to anticipate that the automobile would be driven against her while she was standing there in plain sight. There was ample room for the automobile to have avoided hitting the plaintiff. In any event, the question of contributory negligence was for the jury to determine.

Where a verdict is manifestly just and proper and a liability clearly shown, this court will not reverse the judgment on technical errors or those which do not violate some substantial rights guaranteed by the law and prejudicial to the rights of the party.

Instruction No. 5 given on behalf of the plaintiff is criticized because it directs a verdict and omits the question as to whether or not the driver of the automobile was the agent of appellant and in furtherance of some business or duty owing to the appellant at the time and place in question. The proofs show without contradiction that the driver of the automobile was the agent of appellant. Instruction No. 1 sets out the third count of the amended declaration substantially in full. Instruction No. 2 sets out the allegations in the second count and instruction No. 6 sets out those of the first count. It is not good practice to set out at length all the allegations in the declaration and such instructions have been criticized and in some cases where the evidence is close and conflicting it may be held reversible error to give such instructions on the ground that the reiteration of all the allegations in the declaration might unduly influence the jury, but where, as in the case at bar, there is no conflict in the evidence and the liability of the defendant is clearly shown, the giving of such instructions will not constitute reversible error. Sollars v. Review Publishing Co., 264 Ill. App. 207. Moreover, in this case the court gave an instruction on behalf of defendant to the effect that the declaration is merely the unsworn statement of plaintiff’s case and neither proves, nor tends to prove, any allegation therein contained. The criticism directed to instruction No. 4 given on behalf of appellee is without merit. Defendant assigns as error the refusal of the court to give eight instructions offered by him. The first refused instruction informed the jury that the burden was upon the plaintiff to prove that at the time of the accident Oakley Hollingsworth was acting as the agent or servant of his father and in pursuance of some business or duty of his father and that it was not sufficient under the law that said Oakley was engaged in some act merely to further his father’s interests. This instruction was clearly misleading and liable to confuse the jury. The proofs showed that Oakley Hollingsworth was acting as the agent of his father and in pursuance of some business of his father and that was all that was required. The second refused instruction was fully covered by the eighth given instruction as was also the third refused instruction. The fourth refused instruction tells the jury that a father who provides an automobile for the pleasure of his family is not liable for the negligence of a member of his family while driving his automobile unless he was engaged in some business or duty of the father at the time or place of the accident in question. This is an abstract proposition of law and under the facts in this case as above explained was not applicable. Refused instructions 5, 6, 7 and 8 were practically repetitions of the other refused instructions.

It is also urged that the damages are excessive. At the time of the injury plaintiff was employed by the City of Danville as a supply teacher, that is, a teacher whose duty it is to take the place of any other teacher in any grade or high school who should be absent for any cause and teach in her place during such absence, and had been earning $50 per month for 13 months prior thereto. She sustained a compound comminuted fracture of the left anide consisting of two large fractures and a number of small ones besides a number of bruises and contusions on other parts of the body. She was confined in the hospital for three months and two weeks and after she left the hospital went to her mother’s home where she remained for a further length of time and had to use crutches until about September 1, 1930, and used a cane for about four months thereafter. Up to the time of her trial she had not been able to do all her housework. Her leg was swollen and it has to-be bandaged with an elastic bandage all the time. She cannot stand on it for any length of time. The leg is half an inch shorter than the other one which makes her lame. She had to give up her position as teacher because that required constant standing and walking up and down steps which she is unable to do. Thirteen months of school work had elapsed at the-time of the trial since the accident. Her expenses at the hospital were $401.75, her doctor’s bill was $500, and for extra medicine and bandages she had paid $10. The damages to her clothing were $60. In addition to the above loss of earning power and expenses, she suffered pain and still suffers pain. She is deprived of earning anything from her vocation as teacher for which she was educated and fitted, at least in the near future. The shortening of her leg of course is permanent. Her injuries are not disputed by any evidence and were not controverted on the trial. The jury heard the evidence and the trial court approved its verdict. The jury were not instructed that they could allow any vindictive or punitive damages. Under the above circumstances we would not be justified in holding the amount of damages to be excessive.

Counsel for appellant claim that they were unduly restricted in their cross-examination. The plaintiff put the defendant A. Gr. Hollingsworth on the stand as her own witness and on cross-examination the following took place:

“Q. Now, on the night in question, the night of February 11,1930, at the time of this accident, was Oakley Hollingsworth transacting any business for you?
A. No, sir.
Mr. Steely: Objection and motion that the question and answer be stricken out.
Mr. Wicks: That’s the material question as far as this defendant is concerned. I would like to be heard on that point if there is any question about it.
Mr. Steely: Move to exclude that question and answer.
Mr. Wicks: That’s the whole meat in the case as to whether or not this man was on any business for his father . . .
The Court: Objection sustained to that question, purely a conclusion.”

The court was clearly right in its ruling. There was an evident intent to confuse the witness as to the word “business.” If the defendant directed his son to take his guests in the automobile to the theater then the son was transacting business for his father in the sense that he was acting as the agent for his father in doing the thing he was commanded to do and he could not avoid the effects of such direction and command by stating that his son was not transacting any business for him. This would be a pure conclusion and at variance with the facts. The following questions were also asked the witness on his cross-examination:

“Q. Then your son didn’t come down here purposely to bring Taylor Barger and Harley Frayser?
Mr. Steely: Object to that.
The Court: Objection sustained.
Q. I will ask you further — this is cross-examination — if it isn’t a fact that he was attending to his own business exclusively?
Mr. Steely: Object.
The Court: Objection sustained.
Q. And I will ask you further if on the night in question the automobile was used solely for the pleasure of your son, Oakley Hollingsworth?
Mr. Steely: Object to that.
The Court: Objection sustained.
Q. And further, if the machine wasn’t kept at that time for pleasure purposes at 7:15 on the night of February 11, 1930!
Mr. Steely: That’s objected to.
The Court: Yes, objection sustained.”

It needs no discussion to show that the above questions were wholly incompetent. The defendant placed but one witness on the stand and that, Oakley Hollingsworth. We have already quoted a part of his testimony in the fore part of this opinion. After stating that his father directed him to take the boys to the show, the following questions were asked of him on direct examination:

“Q. Were you on any business transaction that night for your father, Oakley!
Mr. Steely: Object to that, calling for a conclusion.
The Court: Yes, tell what his father said, if anything.
(Defendant excepts.)
Q. Were you on any transaction that night involving the buying of stock, hogs or cattle !
Mr. Steely: Object to that.
The Court: Objection sustained.
(Defendant excepts.)-
Q. Were you working at any matter that evening for your father, Oakley!
Mr. Steely: Object to that.
The Court: Objection sustained.
(Defendant excepts.)
Q: Were you on any transaction involving any duty for your father on the night of February 11,1930!
Mr. Steely: Object to that. 0 •
The Court: Objection sustained.”

There was no error in the ruling of the court ón the objections to these questions.

The cause of action was clearly proven under the' first count of the declaration and even if the second and third counts were defective the defendant did not take proper steps to have them withdrawn from the declaration but on the contrary joined issue thereon and offered instructions which the court gave defining the rights of the defendant under each count. In our opinion there is no reversible error in the record and the judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Justice Shurtleff

text:
    William David Moore, Administrator of the Estate of Maggie Moore, Appellee, v. Jansen & Schaefer, Appellant.
    Gen. No. 8,517.

      Heard in this court at the April term, 1931.
    Opinion filed February 1, 1932.

      O’Harra, O’Harra & O’Harra and Jesse Black, Jr., for appellant.
    Hartzell, Cavanagh & Martin, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action for damages growing out of injuries causing death to appellee’s intestate.

The declaration, after amendment, consisted of three counts. The first count charged in substance that on September 27, 1930, on hard road route number 95, about one and one-fourth miles southeast of Dallas City, in Hancock county, the defendant was driving and operating a certain truck and trailer attached thereto in a reckless, careless, negligent manner, in that said truck and trailer, with the hopper thereon, were not properly lighted, marked and guarded; that while plaintiff’s intestate, exercising all due care and caution for her own safety, was riding in an automobile upon said hard road number 95, about one and one-quarter miles south and east of Dallas City, by reason of said carelessness, recklessness and negligence, the automobile in which plaintiff’s intestate was riding was struck by said truck and trailer, turned over and knocked off the hard surfaced road and plaintiff’s intestate was then and there injured and died as the result of said injuries.

The second count of the declaration charges in substance that defendant was operating or driving a truck with trailer attached thereto and was moving certain hard road construction equipment and machinery along said highway at one o’clock a. m. in an easterly or southeasterly direction, and that the same was not properly lighted, marked or guarded; that defendant was so carelessly, negligently and recklessly moving said truck, trailer and machinery along said public highway in that they failed to fix proper lights upon said truck, trailer and machinery to warn persons then and there upon said public highway; that said truck, trailer and machinery were large, cumbersome and extended over a large portion of said hard surfaced road and that defendant negligently and carelessly failed to give warning to protect persons then and there driving along said public highway from danger from running into and hitting the same.

The third count of the declaration, after making the same general charges about the hard road, etc., alleges that plaintiff’s intestate was riding as invitee in an automobile operated by one Gibson Strausbaugh, which was being driven in a northerly direction near the residence of the said Leon Vass; that said defendant and the said Gibson Strausbaugh, and each of them, so negligently operated and drove and managed the said motor truck, trailer and road construction machinery and equipment of defendant and automobile of the said Gibson Strausbaugh that by and through said negligence the said motor truck, trailer and road construction machinery and the said automobile collided, and by reason whereof plaintiff’s intestate, while at all times exercising due care and caution, was struck and injured, and as a result thereof died. The declaration also avers the next of kin and the damage in the sum of $10,000.

The particular equipment which appellants were moving on the night of the accident was a large steel hopper used in mixing cement in road construction. When the hopper was in operation it was supported by four steel legs of angle iron six inches by six inches by three-eighths inch thick, and from the ground to the top of the hopper was 24 feet. The hopper at the upper part was 15 feet square. Boiler plates on each side came straight down a distance of four and one-half feet. Below these plates, on the sides, was a steel plate construction which came to a common center or hopper, into which the cement and gravel were gathered for the purpose of mixing. From steel corner post to steel corner post were angle iron braces three inches by three inches by three-eighths inch thick, and also from each corner post were two other braces of angle irons three inches by three inches by three-eighths inch, which went up to the body of the hopper. The hopper was steel construction throughout, was aluminum color and weighed six tons.

What was called in the evidence a “trailer” was devised for transporting the hopper. This trailer consisted of a single axle with two wheels with dual tires. The axle was first made for the semitrailer. Timbers were placed on the semitrailer and fastened to the axle. A part of the legs was taken off the hopper. A red elm tongue eight inches wide and six inches thick was put on the trailer and fastened to an auto truck in front. The hopper was put on these timbers and bolted fast to them. Wheels with dual tires were put on the axle. The hopper was bolted to the tongue and the timbers on the axle. A U-shaped strap iron was put around the rear axle of an autotruck in front, used to pull the semitrailer and fastened to the six-inch by six-inch red elm tongue of the trailer.

The hopper from outside to outside, after it was installed on the semitrailer, was 15 feet wide. From the pavement to the top it was 14 feet high. The axle was as near the center of the hopper as it could be placed so as to keep it balanced. The upper part of the hopper was square. Each face of the upper square was boiler plate, four and one-half feet vertical distance and 15 feet from right to left. The face of the hopper was 15 feet wide in the direction in which it was traveling. From the bottom of the boiler plate the construction ran down into a hopper bottom about six feet long and two feet wide, where the material went through when mixing. There was an angle iron six inches wide on the top edges of the hopper.

When the machine was about to be transported, a running board was devised for men to stand on while in transit. The running board was placed across the front end of the hopper 15 feet in length and about four and one-half feet below the top of the hopper. The body of the autotruck which pulled the semitrailer was nine feet long and the body of the truck was two feet deep. There was no cab on the towing truck. The driver’s seat on the towing truck was on the outside and the body of the towing truck ran the same height from front to back. The height of the towing truck from the top of the body was six feet. The width of the towing truck from the outside wheel to the outside wheel was six feet two inches. From the outside to the outside of the wheels of the semitrailer was 12 feet.

The deceased was riding in a Model “A” Ford sedan at the time the accident occurred, and was returning from LaHarpe and going to. her home, which was near Niota. Two boys, named respectively Strausbaugh and Grigsby, were in the front seat with the deceased and a girl named Wilcox. Strausbaugh was seated on the left side of the front seat, driving •the car. Maggie Moore, the intestate, sat next to him and at her right side sat Grigsby with the Wilcox girl on his lap.

In the back seat there were two other boys and two girls, one boy sitting on the left side of the seat, a girl at his right, a boy at her right and a girl on his lap. Just prior to the time of the accident the truck pulling the hopper was traveling at the rate of 12 miles an hour. The testimony of the witnesses on both sides shows that the car in which the deceased was riding was traveling at a speed of between 35 and 40 miles an hour just prior to the time of the accident:

The facts as recited by appellant are that the Ford truck which preceded the outfit 150 to 200 feet was equipped with ordinary electric lights. The truck was a left-hand drive, and the driver carried a red lantern in his left hand, held outside the car, for the purpose of flagging traffic. The auto truck pulling the trailer was equipped with Presto lights, a gas illumination. The lenses on the autotruck were thickened at the top so the lights shot downward and across the roadway. They were not glaring lights. At each of the four front corners of the hopper was hung a red lantern. At the center in front of the hopper at the top was fastened a two-mantle Coleman gasoline lantern with a reflector at the top. This lantern was powerful; it furnished illumination like city gas and the light was reflected downward and over the hopper in all directions, so that the entire 80 feet of roadway and the hopper were illuminated. Eed lanterns were also placed on the rear lower left-hand and lower right-hand corners of the hopper. The truck following the hopper was equipped with a red lantern at the lower left-hand corner in the rear. The rear autotruck traveled from four to six feet behind the hopper and the headlights were turned off because, following the hopper on a long trip, the constant looking at the bin and the constant reflection of the lights would be blinding to the driver of the rear autotruck.

Four of the occupants of the car in which the deceased was riding testified. Emilene Moore, who was a sister of the deceased, testified that she did not see the hopper until after their car had passed the lights of the truck which was pulling the hopper, and that she did not see the hopper until they were three or four feet from it. She further testified that the.car which she was in did not meet any other truck just shortly before the collision. Clara Siegfreid testified that she did not see anything but the headlights on the truck which was pulling the hopper, and that they met no other vehicle shortly before the collision. Lawrence Butterfield testified that he saw nothing but the headlights of the truck which was pulling the hopper. He further testified that they met no other truck shortly before the accident and that Strausbaugh, the driver, was looking in a northerly direction just prior to the time of the accident, which would be in the direction in which the car was traveling. John Quisenbery testified that he first saw the headlights of the truck which was pulling the hopper when they were about 60 rods distant from it, and that he never saw anything but the headlights of the truck. He further testified that they met no other car after leaving LaHarpe until the time of the collision. All of these witnesses testified that Strausbaugh was doing nothing except driving the car; that he was looking in the direction in which the car was going, and that there was nothing to impair his vision from seeing directly down the road in front of him.

Appellee offered in evidence the testimony of different witnesses who were the occupants of four different cars that met the hopper at different distances between Niota and the point of the accident. One of these witnesses, Alton Luder, testified that he met the outfit between Dallas City and Niota; that he was going in a westerly direction and it was going in an easterly direction, and that he could see and did see until he was within 10 or 12 feet of the hopper as it extended out over the road, only the headlights of the truck which was pulling it. He also testified that there was a light Ford truck a short distance in front of the truck pulling the hopper, and that the man in the Ford truck waved a lantern and shouted at him. G-race Bertsch'i, who was riding in the car with him, testified that after passing the lights of the truck pulling the hopper she saw nothing but one red light; that they had to pull off the pavement to get by the outfit; that she could not see what it was that they met and that they pulled clear oil the pavement to pass it. Guy Oldham testified that he met the outfit between Pontoosuc and Dallas City; that he saw the lights on the truck ahead and the lights on the truck pulling the hopper and that was all he could see; that he was blinded and could not tell what it was that he met. Clarke Lee testified that he met the hopper and outfit between Niota and Pontoosuc; that he first saw the car ahead; that somebody.stuck out his hand with a red light in it; that he then met a car with bright lights and after he got by these lights just a little he saw two red lights; that he did not see the red lights until after he passed the lights of the truck pulling the hopper and that he had to swerve out of the road to keep from hitting it. Ed Dellinger, who was in the front seat with Lee, who was driving the car, testified that they first met a truck with a driver holding a red lantern out of the left window; 50 yards further they met another truck; that the second truck had bright headlights and that when they were even with the lights on this truck he saw two red lanterns between four and six feet high off the road.

Noble Jones testified that he and Franklin Moore, a brother of the deceased, were driving in a small Ford without a top on it; that they met the outfit just outside of Dallas City and toward LaHarpe. This was the last car which the evidence shows met the outfit prior to the time of the accident, and was the last car that met it prior to the time that the driver, Weaver, drove away in the truck which had been driving a short distance in front of the outfit, and from which he had been giving warning to people approaching by waving a red lantern and calling out. Jones met the truck a little over a quarter of a mile north of where the accident happened. All he could see was. the headlights on the truck. After he passed the truck he saw the hopper. Moore testified as to meeting the outfit that just before they met it they met a light truck about 50 feet in advance of the outfit and that the occupant of that truck swung a lantern and called: “Look out, boys”; that the lights from the big truck, which was pulling the hopper, blinded him and that after he passed those lights he saw the hopper; that he didn’t believe they missed the hopper over six inches; that he was about 12 or 14 feet from the hopper when he first saw it.

It is undisputed that some little time before the accident the advance car with a red lantern for warning had left the vicinity of the machine and gone to LaHarpe to get some sandwiches for appellant’s men. The accident occurred at about 1:30 o ’clock in the morning. The car in which appellee’s intestate was riding was on the right of the black line in the center of the road, turned to the right of the truck and plunged head on into that part of the steel hopper which extended over the black line in the center of the highway into the pathway of the approaching car. The center of the Ford radiator struck the corner post and was split. The entire hood of the Ford went under the hopper so that the corner post of the hopper was against the gas tank. The driver of the Ford and two others were knocked senseless and Maggie Moore was killed. The party with whom deceased was riding had been at a dance, had done some talking and a little singing on the way home. The deceased was in between the others and almost behind the wheel where she had less chance than the others to view the road and there are no proofs in the record tending to show that she was other than in the exercise of due care for her own safety and at and before the injury did anything which contributed to her injury or omitted to exercise due care in her own behalf, if the testimony of appellee’s witnesses is to be. taken as true.

There was a verdict and judgment for appellee in the sum of $7,500 and appellants have brought the record, by appeal, to this court for review.

At the close of appellee’s testimony and again at the close of all the testimony, appellant moved for a directed verdict on the ground that no negligence was shown on the part of appellant, and that the proofs did not show that appellee was in the exercise of due care for her own safety. The acts of negligence charged are: First, that appellant was • driving the

truck and trailer negligently in that said truck and trailer, with a hopper thereon, were not properly lighted, marked and guarded; second, that the same was not properly lighted, marked and guarded and that there was no warning given; and the third is a count of general negligence against both appellant and the driver of the Ford. There was no demurrer to the declaration and only the plea of the general issue. The question whether the truck and trailer were properly lighted is a question of fact arising out of the testimony in this case and is not a question of law, as contended by appellants. The facts in this case are not conceded or agreed upon but are widely variant, all of which have been submitted to the jury. An equal number of appellee’s witnesses, who approached the truck and trailer from the southeast, testified that they saw no red lights and did not see the hopper until they had passed the truck, and that the lights on the truck blinded them. They looked, and if they were unable to see the red lights on the hopper it may have been because the red lights were not there, or it may have been because the bright lights on the truck between the hopper and the approaching machines shut out all view of red lights at the rear, a portion of which were higher in the air. Either the failure to properly light the hopper or to so light the propelling truck as to shut out the lights to the rear, whether they were red lights or otherwise, would constitute proof of negligence under the first and second counts of the declaration.

In the second count is the charge, “there was no warning.” The evidence shows that the appellants thought it necessary, in order to properly give warning to approaching vehicles, that the witness Weaver should ride in a truck a short distance in front of the truck pulling the hopper, and wave a red lantern and call out to persons whom the machine was meeting, warning them of the danger. This was done all the way from Niota down to a distance of about a quarter of a mile from where the accident happened, and while this was being done, although each car which met the hopper avoided striking it with difficulty, nevertheless the warning given by Weaver was sufficient to put them upon their guard, so that they avoided any accident. However, as soon as Weaver and the truck in which he was riding departed and left for La Harpe for the purpose of getting sandwiches, no one then was ahead to give any warning, and the first car which the machine met, which was the car in which the deceased was riding, struck and ran into the hopper and the deceased was killed.

The court did not err in refusing a directed verdict for appellant on the ground that no negligence was shown sustaining the counts, or one of them, in the declaration. If there is one good count in the declaration which is supported by the evidence, the verdict and judgment should be sustained. (Grannon v. Donk Bros. Coal & Coke Co., 259 Ill. 350; Vail v. Graham, 259 Ill. App. 172.) In this case the proofs are ample.

Appellant further contends that the deceased was guilty of contributory negligence in not warning the driver that he was driving into a place of danger, and it- is assigned as error that it was negligence for plaintiff’s intestate to ride in a two-seated, five-passenger Ford sedan with four adult passengers in the driver’s seat and four in the rear seat. As to the first assignment, there was no duty upon the deceased in this regard until she herself became aware of the danger or had an opportunity to become aware. The evidence shows conclusively that neither she nor any of the other passengers- in the car in which she was riding ever became aware of this danger, and further shows that none of them ever had an opportunity to become aware of it, for the reason that the hopper and the warning lights could not be seen by anyone driving a car and meeting the outfit until they were within about nine feet of it.

As to the second ground of the assignment, it is only necessary to suggest that in order for any act or failure to act upon the part of the deceased to amount to contributory negligence, it must have appeared from the evidence that the act or failure to -act in part, at least, contributed to cause the collision. Ford v. Hine Bros. Co., 237 Ill. 463.

The evidence shows the position of each person in the car at the time of and just prior to the time of the accident, and shows that the number of persons in the car in no way interfered with the vision of the driver of the car or his opportunity to see, and did not interfere with or hinder him in the management, control or operation of the car. Therefore, under the evidence in this record, there is nothing to show that the number of persons in the car in any way contributed to the cause of the collision.

We cannot agree with appellant’s contention that the record shows that appellee’s intestate was guilty of contributory negligence and not in the exercise of due care for her own safety, as a matter of law.

Appellant assigns error that the court refused to admit a hand drawing of the truck and trailer, with the hopper on the trailer. It is not a photograph but a drawing by lines to indicate the objects being propelled by appellant. The drawing undertakes to show where two men were on the platform in front of the hopper, one of them waving a lantern painted red and four other lanterns painted red are shown in the drawing, and one white lantern at the top of the hopper. The drawing was merely supplementary to the oral proof and in undertaking to show two men on the running board and five painted lanterns on the hopper, the court did not abuse its discretion in refusing to admit the exhibit. (Henke v. Deere & Mansur Co., 175 Ill, App. 240.) From the reading of the evidence as to the situation just prior to the time of the accident, it is evident that the drawing is incomplete and inaccurate and not based upon all the evidence. The drawing fails to show the man in the truck who was driving the truck. There is no evidence to show that the man who was claimed to be standing upon the footboard holding a lantern was holding it in the position as shown by the drawing, nor is there any evidence to show the size of the lanterns, which the drawing attempts to set out; nor does the drawing show the distance from the front truck to. the hopper. It is apparent from looking at this drawing that the main purpose of it was to impress on the jury the red lights.

Appellant complained of the giving of appellee’s eighth instruction, as follows: “The Court instructs you that, even though you believe from the evidence that the driver of the car in which plaintiff’s 'intestate was riding was negligent in the operation of the car in question at or immediately prior to the time of the accident in question, then, under the law, such negligence, if you find from the evidence there was such negligence, could not be imputed to the plaintiff’s intestate. ’ ’

It is contended that the giving of this instruction omits the element of due care on the part of the deceased and was error, citing Grifenhan v. Chicago Rys. Co., 299 Ill. 590, 594. Grifenhan v. Chicago Rys. Co., supra, does not seem to be exactly in point. It was held in Arndt v. Riverview Park Co., 259 Ill. App. 210, 218:

“It is urged that the court erred in giving the first instruction requested by plaintiff, which told the jurors that even though they believed from the evidence that the mother of plaintiff was guilty of negligence on the occasion in question, yet under the law, such negligence, if any, could not be attributed to plaintiff. It is argued that this instruction presented an abstract proposition of law which was not applicable and therefore should not have been given to the jury. Garvey v. Chicago Rys. Co., 339 Ill. 276, is cited to that point. We think the criticism is without merit. A similar instruction was approved by the Supreme Court in Perryman v. Chicago City R. Co., 242 Ill. 269, 271, and the Appellate Courts have often approved similar instructions. Vanek v. Chicago City Ry. Co., 210 Ill. App. 148; Deheave v. Hines, 217 Ill. App. 427.”

The principle of the instruction seems to be approved in Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38, 51, and we cannot hold that the giving of this instruction constituted error.

Appellant further complains of the giving of appellee’s instructions nine and ten as follows:

“9. If, from the evidence in the case and under the instructions of the Court, the jury shall find the issues for the plaintiff and that the plaintiff has sustained damages as charged in the declaration, then, to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury may themselves make such estimate from the facts and circumstances in proof relating to the subject of the extent of plaintiff’s damages.”
“10. The Court instructs you that if you find the issues for the plaintiff, then, in assessing the damages to the next of kin, you may consider the pecuniary benefits which the next of kin may have derived from said deceased, had she not been killed, at any age of her life.”

Appellee meets this contention with the statement, borne out by the record, that appellant’s motion for a new trial was in writing and that none of the grounds stated questioned the amount of the damages found by the verdict of the jury. (Yarber v. Chicago and Alton Ry. Co., 235 Ill. 589; Illinois Cent. R. Co. v. Johnson, 191 Ill. 594; Wolfstein v. Illinois Power & Light Corp., 254 Ill. App. 362, 371.) The court said in the last case: “It is a familiar and elementary rule that where a party files a written motion for a new trial and specifies therein the grounds or points upon which he relies, all questions not embraced in the points so filed, are waived. Chicago City Ry. Co. v. Smith, 226 Ill. 178; Yarber v. Chicago & A. Ry. Co., 235 Ill. 589; Erikson v. Ward, 266 Ill. 259. It has been expressly held that the point that the verdict is excessive must be stated as one of the grounds so filed or it is waived. Jones v. Jones, 71 Ill. 562; Ottawa, O. & F. R. Val. R. R. Co. v. McMath, 91 Ill. 104; McClaren v. City of Gillespie, 250 Ill. App. 53.” And the court also said in that case: “So also the propriety of an instruction pertaining solely to the question of damages will not be considered on appeal if the party complaining did not urge as a ground for a new trial that the damages awarded were excessive. Linck v. Scheffel, 32 Ill. App. 17; City of Paxton v. Frew, 52 Ill. App. 393; Wettrick v. Martin, 164 Ill. App. 273.”

The same rule applies to instruction number eleven on the question of damages objected to by appellant.

Appellant complains of the giving of appellee’s thirteenth instruction as follows:

“The Court instructs you that, under the law, the maximum width of any vehicle and its load, excepting loads of loose hay, straw, corn fodder and other similar farm products, agricultural implements and threshing machines, shall not exceed eight feet, and in this case, if you find from the evidence that the width of defendant’s truck, trailer and hopper in question was of a maximum width in excess of eight feet, and that said vehicle and load of said defendant was not such a vehicle or load as is excepted by law as above stated, and if you further find from the evidence that the fact that said vehicle and load of defendant was in excess of eight feet in width, if you find from the evidence that in fact there was such excess, caused or contributed to the cause of the accident in question, then you have the right to take into consideration that fact, if you find it to be a fact, together with all other evidence in this case, in determining whether or not defendant was guilty of negligence on the occasion in question. ’ ’

It is objected that this instruction draws attention to particular facts in the case. The instruction is based upon Cahill’s St. ch. 95a, IT 3; section 203 of chapter 121 of Hurd’s 1929 Revised Statutes, and states the law of the case. The purpose of the instruction was not to call the jury’s attention to any particular facts, but was to call the jury’s attention to the law upon the question of the width of a load which it was lawful to have upon a highway where this accident happened. The evidence pointed out was not controverted, as there was no question as to the width of the hopper, appellant having proved its width by its own witnesses. The law was clearly stated in the instruction and it is contended that where facts are not disputed or controverted, and the instruction clearly states the law in regard thereto, that the singling out of the same is not reversible' error.

Portions of appellant’s instructions are subject to the same criticism if appellee’s instruction was in error. Appellant objected to other instructions. Objection was made to appellee’s first instruction on the ground that it ignores the fact “that plaintiff’s intestate, when invited to ride, knew she was being asked to ride with seven other people in a Ford two seated five-passenger car,” and that for her to accept such an invitation was negligence. We cannot hold that such conduct is negligence as a matter of law. Appellant’s second instruction laid down the same rule of law..

Appellant objects to appellee’s second instruction, based upon general negligence in the operation of appellant’s truck and as applied to appellant’s truck only. The third count charged general negligence against appellant and the driver of. the Ford car, Strausbaugh, and it is objected that the instruction is not directed against the operation of both cars. Appellant’s instruction number eight is subject to the same criticism. Where the charge is joint against two parties and the proofs are sufficient to show the negligence of one, it is not error to submit the cause to the jury as to the ■ one against whom negligence is proven. Pierson v. Lyon & Healy, 243 Ill. 370.

Some other errors are pointed out, none of which we deem of sufficient importance to extend this opinion further.

While proofs were submitted by appellant tending to show that persons approaching or in front of the truck and hopper could see the red lights, the jury heard the testimony and saw the witnesses, and we cannot say as a matter of law that the verdict is against the manifest weight of the testimony.

Finding no error in the record warranting a reversal of the verdict and judgment, the judgment of the circuit court of Hancock county is affirmed.

Affirmed.