text:
    Irene Johnson, Appellee, v. Hans Sandberg, Appellant. Bernice McKibben, Appellee, v. Hans Sandberg, Appellant.
    Gen. No. 9,018.

      Opinion filed February 10, 1936.
    J. E. Malone, Jr., and Barrett, Barrett, Costello & Barrett, of Chicago, for appellant; Chester D. Kern, of Chicago, of counsel.
    Hamilton, Black & Klatt, of Peoria, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

This case comes to us on an appeal by Hans Sand-berg from two judgments. One for $1,750, entered in favor of Irene Johnson; and one for $2,000 in favor of Mrs. Bernice McKibben. These • judgments were rendered on verdicts of the jury; on the trial of the cases in the circuit court of Marshall county, Illinois. The records and proceedings in the trial involved two suits, both growing out of a collision between an automobile driven by Bernice McKibben, in which Irene .Johnson was riding as a guest, and a truck operated by the defendant. The two cases were consolidated and tried on the same evidence.

The complaint of Irene Johnson consists of two counts filed March 14, 1935. The first is a general negligence count alleging that the defendant by his servants and agents was carelessly, negligently and improperly operating and managing his automobile truck and that by the means of the carelessness, negligence and improper conduct of the defendant, the automobile in which the plaintiff was riding ran into and against and collided with the defendant’s automobile truck, and thereby the plaintiff was thrown with great force and violence against said automobile in which she was riding and badly hurt, bruised and wounded. This count charges that the plaintiff was in the exercise of due and ordinary care for her own safety at the time of the collision in question.

The second count is practically the same as the first, with the exception that instead of charging the defendant with negligence, it alleges that the defendant by his servants and agents intentionally, wilfully, wantonly and in a reckless disregard for the safety for others operated and managed his said automobile truck so that because of said intentional, wilful, wanton and careless disregard for the safety of others, the automobile in which the plaintiff was riding collided with the defendant’s automobile truck and thereby the plaintiff was then and there injured, etc. The answer of the defendant to count 1 of this petition was a general denial of the allegations of the same. The answer to count 2 is a general denial of any wanton and wilful conduct on the part of the defendant in the operation and management of his automobile truck.

The petition of Bernice McKibben is similar to that filed by Irene Johnson, and the answer of the defendant is practically the same. In the case filed by Bernice McKibben, the defendant, after having obtained leave of' court, filed an additional paragraph to his answer. He charges “that at the time and place in question the plaintiff wilfully, wantonly and in. a reckless disregard for the safety of others, operated and managed the automobile she was driving so that by means of the intentional, wilful, wanton, and reckless disregard for the safety of others and such improper conduct of the plaintiff, and management of said automobile which the plaintiff was operating was thereby then and there -caused to collide with the motor truck of the defendant.” The consolidated cases were tried before a jury who found the issues in favor of the plaintiffs, and who assessed damages as before stated.

The evidence is, that the plaintiff, Mrs. McKibben was on December 10,1934, driving in an easterly direction on a State Highway commonly known as Route 17, which is a concrete slab 18 feet wide; that the defendant’s agent while attempting to back the truck into a loading chute for cattle, killed the engine, as the truck was standing at right angles across the hard road. The truck and trailer were approximately 34 feet long. The front wheels were on the south side of the slab and the back wheels were just on or partially off of the concrete on the north side of the slab. While the truck was in this position the plaintiff, Bernice McKibben, who was driving her car with Irene Johnson as a guest riding with her, drove her car into the side of the truck and both of the plaintiffs were injured. The plaintiffs testified that neither of them saw the truck until they were a short distance from it; that there were no lights, no flare, nor other warning given them; that the truck was obstructing the highway. They testified as to passing other cars parked on the side of the road and the rate of speed at which they were traveling. Other witnesses testified that they examined the truck and that there were no reflectors on either side of it.

The defendant’s witnesses gave their version of how the truck was stalled on the hard road. They all agreed to the fact that the whole road was blocked, so completely that cars had to go down in the ditch to get around the stalled truck after the accident. Some of witnesses testified they saw the car approaching, and gave their estimate of the speed at which it was being driven; that they attempted to warn the approaching car, but they could not do so and the collision occurred.

The defendant made a motion for a directed verdict at the close of the plaintiff's’ case, which was over-' ruled. This motion was renewed at the conclusion of all the evidence and the court took the same under advisement until after the verdict of the jury.

At the request of the defendant the court submitted to the jury five special interrogatories, which are as follows:

“First: Was Bernice McKibben guilty of negligence in driving her automobile at the time and place in question at such a rate of speed that she was unable to bring it to a stop after discovering the defendant’s truck on the road before running into the truck?

“Second: Was Bernice McKibben guilty of negligence in failing to observe the truck of defendant on the road in time to avoid a collision with it?

“Third: Was Bernice McKibben guilty of wilful and wanton misconduct in failing to stop the car she was driving before it collided with the truck?

“Fourth: Was Irene Johnson guilty of negligence in failing to discover the truck of defendant on the road in time to warn Bernice McKibben so that the car in which they were riding might be stopped before it collided with the truck?

“Fifth: Was Irene Johnson guilty of negligence in failing to object to the manner in, and speed at which Bernice McKibben was driving the car in which they were riding, at and immediately prior to the collision in question?

“Answer each of these Special Interrogatories either ‘yes’ or ‘no’; sign these Special Interrogatories by your foreman and return same into open Court with your verdicts.” The jury answered “no” to each of these interrogatories.

The appellant seriously insists that the verdict of the jury in each case, is manifestly against the weight of the evidence, and therefore, the judgments cannot be sustained. After reading the evidence as abstracted we are convinced that the verdicts are not manifestly against the weight of the evidence. The jury had the benefit of seeing, hearing and observing the witnesses as they gave their testimony. It was their province to pass upon the credibility of the various witnesses. They have seen fit to give more credence to the witnesses of the .plaintiff than the witness of the defendant.

Whether either of the plaintiffs were guilty of negligence or contributing negligence which was the proximate cause of the collision or whether the plaintiff McKibben was guilty of wilful and wanton conduct in the operation of the automobile just before and at the time of the collision, have been answered specifically by the jury who found that they were not guilty of such negligence, or wilful and wanton conduct. We think the evidence fully sustains the finding of the jury of these questions of fact.

The defendant does not complain that there was any error of the court in the admission of evidence, or that the jury was not properly instructed, but insists it is wholly a question of fact and that the verdict is not sustained by the evidence.

The defendant’s last assignment of error is that the plaintiffs rely upon both counts of their complaints and the case went to the jury on both of them, and that there is no evidence to sustain the wilful and wanton counts and the general verdicts cannot stand. This court and other courts of the State have held that where the declaration charges both negligence and wilful and wanton conduct and there is a general verdict of guilty, the verdict cannot stand, if there is no evidence to sustain the wilful and wanton count. This court has not held, nor has our attention been called to any case where there is evidence to sustain the wilful and wanton count, that a general verdict of guilty cannot stand.

In the case of Brown v. Illinois Terminal Co., 319 Ill. 326, on page 331, our Supreme Court gives a clear definition of what is commonly meant by wilful and wanton conduct and they there use this language: “Courts have recognized the difficulty of accurately stating under what circumstances a defendant may be held guilty of wilful and wanton misconduct in causing an injury. Such conduct imports consciousness that an injury may probably result from the act done and a reckless disregard of the consequences. Ill-will is not a necessary element to establish the charge. Plaintiff and defendant had a legal right to pass over the highway crossing, and each was required, in doing so, to observe due regard for the legal right of the other. A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of the impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.”

Section 104 of chapter 121 of the Illinois State Bar Stats. 1935, jf 379, provides in part as follows: “All motor vehicles of the second division more than 20 feet long, and all trailers and semi-trailers, while being operated on the highways of this State outside the limits of cities, villages and incorporated towns, during the period from sunset to sunrise, shall display on each side of the vehicle at approximately the one-third points of the length of the same, at a height not exceeding five feet above the surface of the road, and reflecting on five feet above the surface of the road, and reflecting on a line approximately at right angles to the center line of the vehicle, two amber tinted reflectors of a type approved by the Secretary of State. ’ ’

The evidence in this case conclusively shows that this truck was being operated in violation of this statute, as there were no reflectors on either side of it at the ■ time of the collision in question. The truck was completely blocking a hard surfaced public road. The defendant was charged with knowledge that cars were likely to be coming in either direction at any time; that at that time of the year it was dark and this truck, in attempting to back across this hard road, should have been guarded in some manner so that the traveling public could be safely protected against such accidents. Whether the defendant was guilty of such conduct, as shows a reckless disregard for the safety of others, was a question for the jury to decide. In our opinion the evidence was sufficient to show that the driver of this truck did operate it with a reckless disregard for the safety of others.

We find no reversible error in this case and the judgment of the circuit court of Marshall county is hereby affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Scanlan

license: Public Domain

text:
    The First National Bank of Chicago, Appellant, v. Raymond Donnersberger et al., Defendants. Belle H. Brigham, Appellee.
    Gen. No. 38,200.
    Opinion filed February 11, 1936.
    Tatge & Tatge and Sonnenschein, Berkson, Lautmann, Levinson & Morse, all of Chicago, for appellant; Luther Tatge and Henry L. Kohn, of Chicago, of counsel.
    Harry A. Biossat, of Chicago, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

Plaintiff filed its bill to foreclose a mortgage, making Belle H. Brigham and others defendants. Plaintiff appeals from an order that sustained defendant Brigham’s motion to quash an alias summons, denied plaintiff’s motion for leave to amend the summons, and refused plaintiff’s motion for a rule on said defendant to plead, answer or demur to the bill. No decree has been entered in the cause and it is still pending in the lower court.

Plaintiff contends “that the alias summons served upon the defendant was issued pursuant to a prior order of court, that the summons was valid and in due form; that if the form of the summons could be questioned, it was subject to the amendment which complainant offered to make. Complainant further contends that since the defendant appeared by counsel, rather than in her own proper person, to question the jurisdiction of the court, this constituted a general appearance. ’ ’

A summons was issued on January 20, 1933, which directed the sheriff to summon Raymond Donnersberger, Belle H. Brigham, George M. Dearlo ve and Unknown Owners. The return of the sheriff shows that defendants Dearlove and Donnersberger were served and that defendant Brigham was not found in the county. On January 19, 1934, an alias summons was issued against defendant Brigham, which was returned by the sheriff on February 19, 1934, “not found in my county. ’ ’ On January 27,1934, the following order was entered on motion of solicitors for plaintiff:

“It Is Hereby Ordered that J. Bruce Drever be and he hereby is hereby authorized to serve process of this court on Belle Brigham, and that summons issue forthwith. ’ ’

Upon the same day a “summons” was issued, which was returned on February 2, 1934, bearing the following indorsement:

“I hereby certify that I served the within writ on the within named defendant Belle Brigham by leaving a copy thereof with the said defendant personally this 2nd day of February, 1934.

“ JBD J. Bruce Drever”

On December 28, 1933, the following “Special Appearance” was filed:

“I Hereby Enter the special appearance of Belle H. Brigham, defendant herein, for the sole purpose of moving to quash the return of service on said Belle H. Brigham shown under date of May 6,1933, by summons filed herein on May 15, 1933, and for no other purpose whatsoever.

“Harry A. Biossat

Attorney appearing specially to move to quash service of summons and for no other purpose. ’ ’

On February 19, 1934, the following motion was filed:

“And Now Comes The defendant, Belle H. Brigham, appearing specially for this purpose only and shows unto the Court that this Court has no jurisdiction of the person of this defendant because of the pretended or attempted service of a certain summons upon this defendant on or about February 2, 1934; a copy of which writ was served on this defendant by one J. B. Drever, and shows unto the Court as follows:

“ (1) That an alias summons issued against this defendant herein on January 19,1934, and that said summons was placed in the hands of the Sheriff of Cook County, Illinois, on January 19, 1934, for service upon this defendant and that said summons remained in the hands of said Sheriff of the Circuit Court of Cook County until the 19th day of February, 1934, when said summons was returned by the Sheriff showing that the said summons was not served on this defendant.

“(2) That a pretended summons was issued out of the Clerk’s Office of this Court on January 27th, 1934, and that a copy of said summons dated January 27th, 1934 was served upon this defendant.

“(3) That said summons issued January 27, 1934 was issued while the other summons dated January 19th, 1934 was in the hands of the Sheriff of Cook County for service and had not been returned at the time of the attempted service of the second summons upon this defendant.

“(4) That said summons dated January 27, 1934 is not correctly entitled in this cause and was improperly issued and the issuance of said summons was illegal and void.

“(5) There has been no service of the summons dated January 19, 1934 on this defendant.

“Wherefore, this defendant moves the Court that an order be entered herein to quash said summons issued January 27th, 1934, and holding- the attempted service on this defendant on or about February 2, 1934 void and of no effect.

“Belle H. Brigham

Defendant appearing specially ’ for the purpose of this motion.”

On the same day there was filed the following affidavit signed by defendant Belle H. Brigham:

“Belle H. Brigham, being first duly sworn on oath, deposes and says that on February 2, 1934, there was ■ handed to her a summons, a photo static copy of which is hereto attached.

“Affiant further says that she has received no other summons other than the one which was handed to her on February 2, 1934, a photo static copy of which is hereto attached as above mentioned, and that she did not receive, and there was not handed to her, or served upon her in any way, a copy of the summons issued in this cause on January 19, 1934; that the summons issued on January 19, 1934 and placed in the Sheriff’s hands for service, a photo static copy of which is hereto attached, was never served upon her and she never received a copy of same from anyone. The only information she has concerning the issuance of said summons dated January 19, 1934 and the placing of same in the hands of the Sheriff of Cook County for service has been through her attorney, Harry A. Biossat. ’ ’

On November 16,1934, plaintiff filed the following verified petition:

“Your petitioner, The First National Bank of Chicago, a national banking association, as successor trustee to First Union Trust and Savings Bank, a corporation, formerly First Trust and Savings Bank, successor in trust by consolidation to First Trust and Savings Bank, organized and doing business under the laws of the State of Illinois, as trustee under the trust deed from Henry H. Brigham and Belle H. Brigham, his wife, dated September 1st, 1925, and filed for record in the office of the Recorder of Deeds of Cook County, Illinois, on September 11th, 1925, as Document No. 9031244, respectfully represents unto your Honors that it is the complainant in the above entitled cause.

“Your petitioner further represents that heretofore, in the Bill of Complaint filed in the above entitled cause, it has named as defendant herein, one Belle H. Brigham, and that summons has duly issued in the above entitled cause to the said defendant, Belle H. Brigham.

“Your petitioner further represents that thereafter, and on, to-wit, December 28th, 1933, the said defendant, Belle H. Brigham, by Harry A. Biossat, her solicitor, entered her general appearance in the above entitled cause, but has failed to answer the Bill of Complaint as amended and supplemented herein.

“Your petitioner further represents that on December 28th, 1933, the said Belle H. Brigham, by Harry A. Biossat, her solicitor, appeared in open court before the Honorable Harry M. Fisher, one of the judges of said court, and moved to quash the service of the summons theretofore issued in said proceedings on May 6th, 1933, upon Belle H. Brigham, and exhibited to the court numerous affidavits in support of said motion, and that the said Harry A. Biossat, as such solicitor, served notice upon the solicitors for your petitioner, ' as complainant herein, all of which will more fully appear from the said Notice and the affidavits which your petitioner is ready to produce upon the hearing of this cause.

“Your petitioner further represents that the said Harry A. Biossat has appeared generally for said defendant, Belle H. Brigham, on other occasions .herein, and more particularly on January 10th, 1934, February 19th, 1934 and September 27th, 1934, and that all of said appearances under the laws of the State of Illinois are general appearances.

“Your petitioner further represents that the said Belle H. Brigham filed a plea of abatement herein on January 10th, 1934, to quash the summons which purported to show her served,with process in the above entitled cause, and that on January 19th, 1934, the summons theretofore served upon the said Belle H. Brigham was quashed and a new summons issued by order of court entered on said date, to-wit, January 19th, 1934, directed to the Sheriff of Cook County, Illinois, to serve the said defendant, Belle H. Brigham.

“Your petitioner further represents that while the said summons of January 19th, 1934, was outstanding and an effort was being made to serve the same upon the said Belle H. Brigham, your petitioner was apprised of the fact that the said Belle H. Brigham was about to leave this State, and a request was thereupon made in the Sheriff’s office to deputize one J. Bruce Drever to make service of said summons; that the said summons was then in the possession of the deputy sheriff, Casper Shodroff, who, on January 27, 1934, could not be located in or about the sheriff’s office; that the sheriff thereupon, on January 27th, 1934 advised this petitioner that he was under orders of the Honorable Harry Fisher, one of the judges of this court to discontinue deputizing individuals to serve summonses, and to request in each such instance, an order of court deputizing an individual to serve a new summons; and that the sheriff of Cook County, Illinois, would therefore request of this petitioner that an order of court be entered deputizing the said J. Bruce Drever to serve a new summons upon the said defendant; that thereupon your petitioner, by its solicitors appeared before the Honorable Hugo M. Friend, one of the judges of the Circuit Court of Cook County, Illinois, and represented to the court that the defendant, Belle H. Brigham, was in Highland Park, Illinois, and was about to leave this jurisdiction, and that immediate service of summons upon her was necessary; that the sheriff who had the summons of January 19th, 1934, could not then be located, and that the sheriff’s office had requested that an order should be entered by the court deputizing the said J. Bruce Drever to serve the court’s summons, and this petitioner thereupon requested that an Order be entered deputizing the said J. Bruce Drever to serve the summons to be ordered by the court to issue herein; that thereupon such an order was entered in the above entitled cause and a new summons issued directed to the defendant, Belle H. Brigham.

“Your petitioner further represents that the said defendant, Harry A. Biossat, her solicitor, were well acquainted with the names of the defendants in this suit prior to the service of the summons of January 27th, 1934 upon her, and are now well acquainted with the names of said defendants, and that it is, therefore, no comfort to her to now say that the said summons issued by order of court on January 27th, 1934, did not apprise her of the names of all the defendants named in the previous pleadings in these proceedings.

“Wherefore your petitioner prays that an Order be entered herein upon the defendant, Belle H. Brigham, to answer or demur to said Bill of Complaint as amended and supplemented, and for such other relief as to this court may seem proper. ’ ’

On November 20, 1934, the following order was entered :

“This cause coming on to be heard upon motion of Belle H. Brigham to quash the summons heretofore issued herein dated January 27, 1934 and served upon her herein by J. Bruce Drever, and upon the petition of First National Bank of Chicago, as Successor Trustee, complainant herein, filed November 16,1934, and upon the motion of complainant to amend said summons aforesaid upon its face by inserting the names of all the defendants herein, due notice having been served upon all solicitors of record, the court having heard the evidence produced by the parties herein, and the arguments of counsel for complainant and counsel for Belle H. Brigham, appearing specially and solely on the question of the motion to quash said service of summons, and being fully advised in the premises;

“It Is Hereby Ordered:

“1. That the summons issued heretofore herein on ' January 27,1934 and served upon the defendant, Belle H. Brigham, by J. Bruce Drever, be and the same hereby is quashed.

“2. That the prayer of said petition, of the First National Bank of Chicago, as successor trustee, complainant herein, and said motion to amend as aforesaid, be and the same hereby are denied.”

Section 4 of the Practice Act of 1907, in force prior to the enactment of the present Civil Practice Act, reads as follows:

“Whenever it shall appear, by the return of the sheriff or coroner, that the defendant is not found, the clerk shall, at the request of the plaintiff, issue another summons or capias, as the case may be, and so on until service is had.”

It was stated in Hekla Ins. Co. v. Schroeder, 9 Ill. App. 472, 477, that that practice was declaratory of the practice that prevailed at common law. In any event, under that statute and the practice that prevailed in this State, it was necessary that the writ should be returned and filed before an alias writ could be issued. (See Daly v. City of Chicago, 295 Ill. 276, 280, 281.) Section 5 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, If 133, provides:

“Every civil action, unless otherwise expressly provided by statute shall be commenced by the issuance of a summons. The clerk shall issue summons upon request of the plaintiff. The form and substance of such summons, and of all other process, and the issuance of alias and pluries writs, shall be according to rules of court. ’ ’

Rule 5 (1) of the Supreme Court provides:

“Whenever it shall appear from the return or affidavit of service that a writ has not been served, the clerk shall issue successive alias writs, on the request of the plaintiff. The court may order the issuance of alias ivrits.” (Italics ours.)

Plaintiff contends that the old practice has been changed by Rule 5. The first sentence of Rule 5 (1) is the same, in substance, as section 4 of the Practice Act of 1907. Plaintiff contends that the last sentence of Rule 5(1) changes the old practice and authorizes the trial court to order the issuance of an alias summons or summonses whenever the ends of justice require such action even where the original summons had not been returned by the sheriff, and that in the instant case, because of the fact that defendant Brigham was a nonresident, it was proper to order the issuance of an alias summons. Plaintiff argues that if it takes 20 officials, each armed with process, to obtain service upon a defendant who seeks to evade service, Rule 5 (1) would permit the trial court to enter an order that 20 alias summonses issue forthwith. Defendant contends that the last sentence merely declares by rule the practice that had always prevailed prior to the present Civil Practice Act whereby the court could order the issuance of alias summonses under certain circumstances, ‘ ‘such as:

“1. Where a summons has been lost or mislaid, so that no return can be made thereon by the sheriff.

“2. Where service of summons is quashed, and another summons is ordered issued.

“3. Where there is a defect in the summons issued, and said summons is cancelled and the Court orders the issuance of another.

“4. Where there has been a considerable lapse of time between the date of the return of summons and the application for the issuance of an alias. And there is a question of reasonable diligence to obtain service through the issuance of alias writs as is provided in Buie 2 of the Supreme Court Buies, Paragraph 2.” Defendant further contends that the old practice has not been changed by Buie 5 and that therefore the trial court was not authorized to enter that part of the order of January 27 ordering the issuance of a summons without a finding that would warrant the issuance of a summons. Plaintiff argues that in any event it must be assumed that facts were presented to the trial judge that justified the entry of the order. It is a sufficient answer to this last contention to say that the record affirmatively shows that on January 27 the summons of January 19 was still in the hands of the sheriff. After a careful consideration of the question before us we have reached the conclusion that the last sentence in Buie 5 (1) did not change the old practice in this State relating to the issuance of alias summonses by order of court and that therefore the trial court was justified in quashing the summons dated January 27, 1934. That part of the order that authorized Drever to serve process on defendant Brigham is not questioned by defendant. We are further of the opinion that the trial court did not err in denying the petition of plaintiff to declare defendant’s appearance upon the motion a general appearance, and in denying leave to amend the summons dated January 27, 1934.

Defendant contends that the summons issued January 27, 1934, was illegal in form and substance and therefore void. We do not deem it necessary to pass upon this contention.

The motion of defendant, heretofore filed, to dismiss the appeal is denied.

The judgment order of November 20, 1934, of the circuit court of Cook county is affirmed.

Judgment order of November 20, 1934, affirmed.

Sullivan and Friend, JJ., concur.


text:
    Aetna Insurance Company, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 38,211.

      Opinion filed February 11, 1936.
    Rehearing denied and opinion slightly ' modified February 24, 1936.
    John W. Freels and Herbert J. Deany, both of Chicago, for appellant; Edward C. Craig and Vernon W. Foster, both of Chicago, of counsel.
    Stevens, Carrier & Griffith, of Chicago, for appellee; Melvin L. Griffith and George M. Stevens, Jr., of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

An action in case, in which plaintiff sued as the assignee of a claim the Continental Illinois Bank & Trust Company, of Chicago, Illinois (hereinafter called Continental Bank), had against defendant, growing out of the loss it sustained through a shipment by registered mail, via defendant’s railroad, of $21,974 in currency, which was lost or stolen while in the care, custody and control of defendant. Plaintiff had issued a policy to the bank insuring it against loss on shipments by registered mail of certain specified valuables, including paper money, and it paid to the bank the amount it had suffered through the loss, and in consideration of the payment the bank assigned to plaintiff all its right, title and interest in and to the lost property. The case was tried by the court and there was a finding in favor of plaintiff in the sum of $21,974. Defendant has appealed from a judgment entered upon the finding.

Defendant makes no point as to the declaration save that the affidavit in support of it was not signed by a proper party.

The material facts in the case are practically undisputed. Continental Bank held a policy issued by plaintiff insuring it “For account of whom it may concern, in case of loss to be.paid to assured or order,” on shipments by registered mail, including paper money. On August 28, 1929, City National Bank, of Herrin, Hlinois, sent the following telegram to Continental Bank:

“Send to Franklin County Coal Company Royalton Illinois to reach them Friday noon $5600 fifties $10760 twenties $3030 tens $1465 fives $1119 ones total $21974. ’ ’ The same day a package containing $21,974 in the denominations specified in the telegram was made up by employees of Continental Bank and it was then registered by said bank at the post office in Chicago, under Registry No. 761968, and plaintiff was immediately notified of the character and amount of the shipment, by what is called a declaration. Henry C. Holland, a post office employee, inserted the package in rotary pouch No. R-7935-141, which is a special type of mail pouch. On August 30,1929, the package came into the hands of John W. Neville, a United States railway postal clerk, who had taken the oath prescribed by law for all persons employed in the United States post office' department, and who worked on defendant’s train No. 625, between Pinckneyville and Eldorado, Illinois. He received the package from the railway postal clerk on defendant’s train No. 225, running from St. Louis to Carbondale and Memphis. At the time Neville received the package it was in good condition and the number of the rotary was the same as when it left Holland’s custody. Neville placed the package, together with four other registered packages, in what is known as a lock pouch that was going to Royalton, Illinois. Before locking the lock pouch Neville was careful to see that all of the packages for Royalton were contained therein. He testified that the rotary pouch was then inside the lock pouch and in good condition. He made up what is known as a registry dispatch receipt card, on one side of which he made entries of all of the registered packages going to Royalton, including the rotary lock pouch from Chicago. On the same side of the card there was a blank for the signature of the postmaster at Royalton, which blank when signed constituted a receipt from the postmaster to Neville, the railway mail clerk, for the registered packages entered on the card. On the opposite side of the card Neville entered his own name and address, and inclosed the card in the lock pouch and then locked it. When train No. 625 stopped at Christopher its mail car stood opposite the baggage car on defendant’s train No. 925 that ran between Christopher and Royalton and which was then standing at the station. Neville threw the lock pouch to John L. O’Neal, the baggageman on train No. 925, and the latter “threw it into the Royalton pile” in his baggage car. O’Neal testified that they stacked the mail, express and baggage in the baggage car in “any place we could get them”; that he stacked the two lock pouches “over with . . . the rest of the Royalton mail.” He further testified that as baggageman on train No. 925 he had charge of the mail, that he had never taken an oath as a carrier of the mail for the United States government, that he received his entire pay from defendant, and that he received all directions as to his work from the officials of defendant company. There were two lock pouches, in the baggage car, for Royalton, the one received from Neville and one that had been made up at Christopher; also eight or twelve mail sacks for the same place. O’Neal testified that he did not notice whether the lock pouch for Royalton was locked or not; “it was nothing to me whether it was locked or not. I just stacked it over. That was Neville’s business, the locking of it. . . . No key to the lock pouches was ever issued to me. ’ ’ A pouch contains letters and other very valuable mail, and a sack contains parcel post and second class mail. O’Neal further testified that he was furnished no information as to the contents of lock pouches and did not know what they contained; that he did not know that registered mail was carried in lock pouches. The train between Christopher and Royalton ran over a branch line. There was but one train daily. There was no railway mail car attached to it and no railway mail clerk nor government agent aboard it to take charge of the mail which was carried in what is called “closed pouch service.” There was no mail car service between Christopher and Royalton. The one “run” daily between the two places was called, by the employees, the “jitney.” Between Christopher and Zeigler the only persons who were in the baggage car at any time were O’Neal; Richardson, the expressman; Norton, the brakeman, and the station agent at Zeigler, who rode in the car from some place in the Zeigler yards to his station. The train left Christopher about 11:55 a. m. and reached Zeigler about 12:15 p. m. O’Neal was in the baggage car at all times on the run from Christopher to Zeigler. The baggage car had a door on each side and also an end door. That car, a passenger coach and one or two freight cars made up the train. The end door of the baggage car was next to the passenger coach. The side doors were open. When the train reached Zeigler Richardson unloaded the express and immediately went home for luncheon, O’Neal unloaded the mail for that place, and the brakeman, Norton, attended to the passengers who got off there. The crew, acting under orders, then picked up some freight cars and set out the freight cars that had been attached to the train at Christopher. The entire train crew, save the conductor, Harris, assisted in the work, which required 10 or 15 minutes’ time, during which the conductor was at the rear end of the train flagging a highway crossing. During the work none of the crew paid any attention to the baggage car or the mail, and none looked into the baggage car after they again boarded the train. The procedure followed by the crew that day was the usual one that had been followed at Zeigier for seven years prior to that time. When the train left Zeigier, O’Neal, Norton and Harris got on at the rear. Richardson stayed in Zeigier. The train backed out from Zeigier to Mitchell Junction at a speed of from six to fifteen miles an hour. It stopped at a crossing about a quarter of a mile from the Zeigier station and then proceeded to Mitchell Junction, and from Mitchell Junction to Royalton. Mitchell Junction is about two miles from the Zeigier station and Royal-ton is about five miles from Mitchell Junction. 0 ’Neal, Norton and Harris rode on the rear of the passenger coach until the train reached a point just outside of Royalton, where a carload of props for a mine were ‘ set out. ’ ’ At that point O ’Neal went back to the baggage car. Until then none of the crew had been in that car since the train reached Zeigier, and none had been assigned to watch the mail during that period of time. When the train pulled into Royalton, O’Neal threw off the mail for that place. The postmaster, Livingston, received it at the train and took it to the post office. The train then proceeded back to Zeigier and Herrin, and when it reached the Zeigier yard office O’Neal was called into that office to answer a telephone call from the station agent at Royalton. The latter informed O’Neal that there had been a robbery of the mails; that the postmaster at Royalton had told him that about $22,000, which should have been in the mail, had been stolen. Upon the card which Neville had inclosed in the lock pouch, Livingston receipted for all of the packages listed by Neville on the card except rotary lock pouch No. R-7935-141, which he noted as not received. Ernest Bowman, an employee of defendant for a numher of years and who had worked as baggageman in charge of the mail on the run between Christopher and Royalton, was arrested a few days after the robbery. He was indicted on two counts, one for conspiring to rob the mail and another for robbing the mail of the package in question, and was convicted on the conspiracy count and found not guilty on the other count. At the trial of Bowman, O’Neal testified that a few months prior to the robbery Bowman rode from Christopher to Zeigler in the baggage car and sat on the mail sacks. It further appeared that Bowman was acquainted with the manner in which the train that carried the payroll of the Franklin County Coal Co. was handled at Zeigler. He was “laying off duty” on the day of the robbery, and was seen in Zeigler on August 29,1929. The rotary lock pouch in which the registered package had been placed at the Chicago post office was found, in October, 1929, about a half mile from the Zeigler station, in a concrete culvert in the Zeigler yards of defendant. The pouch had been cut in two and the registered package abstracted. All of the witnesses ' testified that no one tampered with the mail between Christopher and Zeigler, and from the facts in proof it is evident that the robbery occurred after "the train arrived at Zeigler and while the entire crew was absent from the baggage car. It appears that Bowman was able to execute the robbery without detection because he had worked as a baggageman in charge of the mail on the run between Christopher and Royalton and was familiar with the long-standing, careless custom of handling the baggage car at Zeigler. The Herrin bank ■ and the Coal Company notified Continental Bank that the money had not been received, and the latter bank made “a duplicate shipment” of the same amount of money to the Coal Company. After the robbery plaintiff paid Continental Bank $21,974 for the loss the latter had sustained through the robbery, and at the same time plaintiff and Continental Bank entered into an agreement whereby it was stipulated that in case the money was not found Continental Bank would execute a proper assignment to plaintiff of its right, title and interest in and to the currency. Thereafter Continental Bank executed such an instrument. No part of the currency in question was ever recovered, and plaintiff has never been reimbursed for the money it paid to said bank except the sum of $50 received from the United States government under the provisions of a certain statute. All of the train crew, including O’Neal, who was in charge of the mail at the time of the loss, were employees of defendant and paid by it. None had ever taken the oath prescribed by law for persons employed in the post office department. Defendant was carrying the mail on the Christopher-Royalton route under an authorization from that department, dated February 1, 1929, and its compensation for the service was fixed by the authorization. Defendant proved that in March, 1930, the United States government post office department levied a fine of $50 against it, the reason assigned by the department for the fine being: “Train 925: theft of pouch of mail while in custody of the Company - for delivery at Boyalton, Ill., account lack of protection, Aug. 30,1929.”

Defendant offered evidence to support its claim that it used care in the selection of the employees who composed the train crew at the time the loss occurred. Plaintiff earnestly contends that this evidence fails to show that sufficient care was taken in the selection of the employees in the first instance, and that defendant’s records show that each of the said employees, on occasions, had been careless and negligent in the perform-. anee of duties and had received demerit marks from defendant for such negligence. Plaintiff further contends that defendant offered no evidence to rebut the allegation in the declaration and plaintiff’s proof that defendant failed to properly supervise and superintend the employees in question,

Plaintiff’s claim is not based upon the theory of privity or of interest in the contract between defendant and the United States government, but upon the ground of tort liability, and the declaration is predicated upon that theory. Plaintiff concedes that the established rule in this country is that an officer of the post office department is only liable to the owner of mail matter for injury due to his own personal default in the discharge of his duties, and that he is not liable for the default of a subordinate officer or servant in the public employment, but contends that “the persons in charge of the registered mail package ... at the time of its loss at Zeigler, Illinois, were the private employees of the defendant and were not in any sense the employees, agents or officers of the United States G-overnment or the post office department, ’ ’ and that ‘ defendant owed to plaintiff a duty to exercise reasonable care and caution in safeguarding and protecting the registered mail package to prevent its loss and to insure its safe delivery,” and that plaintiff is entitled (under the facts and circumstances in evidence) “to judgment against the defendant . . . for the value of the lost currency.” Defendant concedes that the members of the train crew “had not taken any oath given by the Postal Department,” and that that department “had nothing to do with their appointment or employment.” In its reply brief defendant states that “no claim has ever been made that any member of the train crew was an ‘ officer ’ of either the Government or the Post Office Department, but only that in handling the mail they were Gent servants’ of the Post Office Department,” and that “while engaged in any way in handling the mail they were temporarily the servants of the Post Office Department and not the private employes of the defendant ”; also that ‘ ‘ a mail contractor is a public agent and is not responsible for the omission, negligence or misfeasance of those employed under it when it has employed trustworthy persons of suitable skill and ability,” and has not co-operated in the wrong. In our opinion the major question for us to determine is: Is there, as plaintiff contends, a distinction in the law between the case of an officer of the post office department sought to be charged with the default of a subordinate in the public service, and the case of a carrier of mail under contract ivith the United States government ' sought to be charged for the result of the negligence of its servants who were not in the service of the post office department and were not under the direction or control of a government agent at the time ?

In support of its position defendant cites the following cases: Denton v. Yazoo & M. V. R. Co., 284 U. S. 305; Conwell v. Voorhees, 13 Ohio 523, 543; Hutchins v. Brackett, 22 N. H. 252; Boston Ins. Co. v. Chicago, R. I. & P. Ry. Co., 118 Iowa 423, 435; Bankers’ Mutual Casualty Co. v. Milwaukee, St. P. & S. S. M. Ry. Co., 117 Fed. 434, 442; Foster v. Metts & Co., 55 Miss. 77, and Lane v. Cotton, 1 Ld. Raym. 646.

Defendant contends that the train crew had charge of the mail at Zeigler and were, therefore, agents of the government, because they were furnished to the government, as required by the regulations of the postmaster general, and that the case falls within the rule laid down in Denton v. Yazoo & M. V. R. Co., supra. In that case the mail was being transported by the railroad company under a regulation of the postmaster general, adopted by authority of the statute, which regulation provides:

“Section 1293. ... 2. Railroad companies shall furnish the men necessary to handle the mails, to load them into and receive them from the doors of railway post office cars, and to load and pile the mails in and unload them from storage and baggage cars, under the direction of the transfer clerk, or clerk in charge of the car, if one is on duty, except as provided in Section 1290. Mails intended for delivery to postal clerk shall never be placed in a postal car unless there is a clerk on duty to receive and care for them. ’ ’

There the employees of the railroad, at the time of the injury in question, were assisting in handling the mail under the direction of a railway mail clerk. Section 1293 requires the presence of a government agent whenever railroad employees aid in the work contemplated by the section. As stated in the opinion (309-10):

“They (railroad carriers) are not required to handle, load or receive mail matter, but only to furnish the men necessary for those purposes. The men so furnished handle the mails and load them into, and receive them from, the railway post office cars, as the regulation prescribes, ‘under the direction of the transfer clerk, or clerk in charge of the car.’ . . . Obviously, as the evidence shows, a direction by the transfer clerk carries with it the duty, on the part of the men directed, to obey, and has, and was intended to have, the force of a command.” (Italics ours.)

The court held that under the particular facts of that case the defendant railroad was not liable for the injuries to the plaintiff resulting from the negligence of one of its employees while the latter was engaged in so loading mail, because his work at the time was work of . the government that was being done under the direction and control of a government agent. The regulation of the postmaster general applicable to the facts in that case does not apply to the facts of the instant case. Here there was no mail car nor postal clerk on the train in question, and no government agent in charge of the mail which was being carried by defendant under “closed pouch mail service,” and the post office regulalations covering such service contemplate the “transportation and handling by railroad employees of the mail.” It seems obvious to us that the Denton case is not an authority in support of defendant’s position and, inferentially, at least, the opinion, is against it, for if defendant’s “lent servant” doctrine is sound, it was entirely unnecessary for the court to base its decision upon the theory that the railroad employees, at the time of the accident, were doing government work under the direction and control of a government agent.

All of the other cases cited by defendant are urged in support of its contention that “a mail contractor is a public agent and is not responsible for the omission, negligence or misfeasance of those employed under it when it has employed trustworthy persons of suitable skill and ability. ’ ’

Conweell v. Voorhees, supra, decided in 1844, held that the owners and proprietors of a stage coach, who had contracted for the carriage of United States mail, were not liable to plaintiff for loss of a letter containing money, upon the ground that such contractors were public agents and not responsible for the omissions, negligence or misfeasance of those employed under them, where they had employed trustworthy persons of suitable skill and ability and had not co-operated in the wrong. Hutchins v. Brackett, supra, decided in 1850, is based upon the Conwell case.

In Sawyer v. Corse, 17 Gratt. 230, decided in 1867, the Virginia court had before it a case that involved the liability of a contractor carrying the mail for the loss of a letter containing bank notes, due to the negligence of his private agent or servant, it appearing that the servant was selected, employed and paid by the contractor, was under his direction and control, worked for his benefit and profit, and could be discharged by him at pleasure. In an able and exhaustive opinion, the court, after reviewing the cases bearing upon the question be- . fore it, held that though the contractor “may be said to be, in a certain sense, an agent of the government, because he is engaged in working for the government, yet the laborers and others whom he employs under him, in the execution of his contract, cannot be said to be agents of the government, which does not know them, does not appoint them, does not control them, does not pay them, and has nothing to do with them.” To quote from the opinion:

“Two cases have been cited as expressly sustaining the proposition that a mail contractor is not responsible for the loss of a mail through the misfeasance or negligence of a carrier. The first of them is Conwell v. Voorhees, 13 Ohio E. 523. The court stated the question to be whether the contractor was a common carrier or a public agent, although the declaration, in all the counts, set forth misfeasance and negligence, and not the liability of a common carrier, as the ground of action. The court held that he was a public agent, on the ground that he was engaged in the performance of a public service, under a contract with the government, and was therefore not responsible for the misfeasance or negligence of those employed by and under him. For the reasons already given, I do not think that this decision can be supported. The editor of American Leading Cases, vol. 1, p. 621, intimates the opinion that the case cannot be sustained on the ground upon which it was placed by the court, and that if it can be sustained at all, which he evidently doubts, it must be on the ground that the carrier holds an official situation, and is really in the employment of the post, office department.

‘ ‘ The other case relied upon is Hutchins v. Brackett, 2 Foster’s E. 252. That case, though put upon the authority of Conwell v. Voorhees, was really decided upon a ground not relied upon, or even mentioned by the court in that case, to wit: that the carrier was a public agent, engaged in the performance of a public duty, and not the mere servant of the contractor. It will be observed that in Conwell v. Voorhees the judge uses ‘mail carrier’ in the sense of ‘mail contractor’ (p. 542, line 15), and that the judge in Hutchins v. Brackett misquotes the opinion in Conwell v. Voorhees by substituting ‘mail carrier’ for ‘mail contractor,’ where it occurs in the 24th line of p. 542. Thus the court in Conwell v. Voorhees is represented as holding that a mail carrier is a public agent, when, in point of fact, they held only that a mail contractor is such.

“It thus appears that Hutchins v. Brackett affords no support to Conwell v. Voorhees, and I think it clear that Hutchins v. Brackett cannot be sustained on the ground upon which it was put. But however that may be, that ground, as I have shown, is not applicable to this case, in consequence of the fact that the carrier had not been duly sworn, and in consequence of the special stipulations of the contract between the contractor and the department.”

The court held that the mail contractor was liable to third persons for losses sustained through the negligence or default of his agent in the performance of his duties.

In Central Railroad & Banking Co. v. Lampley, 76 Ala. 357, to which case we will again refer, the court discusses the Conwell and Hutchins cases and disapproves conclusions reached in them.

In Barker v. Chicago, P. & St. L. Ry. Co., 243 Ill. 482, our Supreme Court had before it the question as to whether a postal clerk, injured through the negligence of a railroad company in operating the train on which the clerk was engaged in the discharge of his duties, could recover damages from the railroad company for such injuries. In answer to the contention that the company was a public agency performing a government function and therefore not liable for the negligence of its employees, the court expressed the view that the company was not a public officer or agent, but a contractor for the government for the performance of a special service, and that the same reason did not exist for holding it exempt from liability for the defaults of those who acted under it in the public service as agents of the government, and the court, after citing with approval Sawyer v. Corse, supra, and Central Railroad & Banking Co. v. Lampley, supra, states:

‘ Several cases have been cited which have held that a mail contractor is not liable for the loss of property transmitted by mail and lost through the carelessness of the contractor’s servants. They are Conwell v. Voorhees, 13 Ohio, 526, Hutchins v. Brackett, 22 N. H. 252, Boston Ins. Co. v. Chicago, Burlington and Quincy Railroad Co., 118 Iowa, 423, and Banker’s Mutual Casualty Co. v. Minneapolis, St. Paul & Sault Ste. Marie & Railway Co., 117 Fed. Rep. 434. These cases proceed upon the theory that mail contractors are public agents and not responsible for the omissions, negligence or misfeasance of those employed by them. We think the cases which hold the contrary are supported by the sounder reason.”

It must be noted that our Supreme Court, in the above quotation, expressly disapproves of the reasoning in four of the cases upon which defendant relies.

Conwell v. Voorhees, supra, is reported in 42 Am. Dec. 206 (published in 1886), and following the opinion, in an annotation reviewing the cases bearing upon the responsibilities of mail contractors and mail carriers, the annotator states (209):

“Mail Contractors and Mail Carriers. — The case of mail contractors and their liability for the acts of their subalterns presents a more difficult question, and one upon which the authorities do not agree. The principal case (Conwell v. Voorhees) was followed by that of Hutchins v. Brackett, 2 Foster, 252; but the correctness of these cases has been doubted by able writers: Sherman & Redf. on Neg., sec. 182; Whart. on Neg., sec. 296; 1 Am. L. Cas. 785, 5th ed.”

On page 210 the annotator further states that upon reason and principle the doctrine announced in Sawyer v. Corse appears to be the better one and meets with the approval of some able writers.

It is a sufficient answer to Bankers’ Mutual Casualty Co. v. Milwaukee, St. P. & S. S. M. Ry. Co., supra, and Boston Ins. Co. v. Chicago, R. I. & P. Ry. Co., supra, that our Supreme Court disapproves of the reasoning and holding’ in those cases. We may add, however, that in the Bankers’ Mutual case the decision is based upon the old rule that applies to postal officers, the court finding that the station agent through whose negligence the package was lost was engaged in the discharge of a * public function, although the evidence showed that he had not been sworn in as an official or employee of the post office department, was not appointed or recognized by it, and was in no way under its direction or control. The Iowa court cites with approval the Con-well and Hutchins cases, apparently not knowing that these cases had been criticized and disapproved by other courts and by able writers. Neither the Bankers’ Mutual nor the Boston Ins. Co. case considered the question as to possible tort liability distinct from the liability assumed by contract with the government.

While Foster v. Mettys & Co., supra, favors the views expressed in Conwell v. Voorhees and Hutchins v. Brackett, and disapproves Sawyer v. Corse, it is well to note that the facts in the Foster case differ materially from the facts in the instant case. In the Foster case the money of the plaintiff was stolen from the mail by Woodfin, a mail carrier, employed by the defendants to carry the mail. To quote from the opinion:

“A carrier of the mail is required by law to be of a certain age, to take a prescribed oath, is exempted from militia and jury service, and is liable to certain penalties for violations of duty, as well as subject to be discharged from service by any postmaster, in a certain contingency. He is a subordinate agent of the government, whose employment is contemplated and provided for by the government in contracting to have the mail carried. Ib. (U. S. v. Belew, 2 Brocken. 280.) ” While the defendants in that case employed and paid the mail carrier, the latter was clearly a subordinate agent of the government, viz., a mail carrier sworn into the government service. The opinion assumes that the mail carrier was an assistant of the postmaster, and, as we read the facts, it was entirely unnecessary for the court to base its ruling upon the Conwell and Hutchins cases.

Lane v. Cotton, supra, cited by defendant, was decided in 1701, and is reviewed in Sawyer v. Corse, supra. It was the earliest case to state the rule that the postmaster general of England is a public officer, not accountable for the misconduct of subordinates who, though they may be appointed by him, are officers of the postal department. Dunlop v. Munroe, 11 U. S. 242, is the earliest American case upon the subject. (See also Raisler v. Oliver, 97 Ala. 710.)

Central Railroad & Banking Co. v. Lampley, supra, seems to be the first case that involved the liability of a railroad company, as a carrier of mail, to the owner of mail matter for its loss or destruction due to the negligence of the servants of the company. Lampley sued to recover damages for the alleged conversion of $225 in money, which he had sent by mail inclosed in a registered letter which never reached its destination. The pouch containing the letter was strapped and locked by the postmaster and delivered to an employee of the defendant, a train-hand or porter. It seems to have been the custom of the post office at that time to deliver mail pouches to and receive them from employees of the defendant. While the mail was being carried on the defendant’s train it was not in charge of any route agent or official of the post office department, the pouches being placed in the baggage car. The conductor, the only person on the train who appears to have been charged with any duty regarding the mail pouches, was not a postal official. The court held that the action for conversion would not lie, as there was no evidence tending to show that the defendant was guilty of any wrongful disposition or appropriation or withholding of the letter other than the failure to deliver it; but on the question as to whether the defendant would be liable for loss of the letter by the negligence or want of care of defendant’s servants, the court approved the doctrine announced in Sawyer v. Corse, supra, and disapproved Conwell v. Voorhees and Hutchins v. Brackett. In its opinion the court states (366):

“The mail-pouches were carried on the baggage in the baggage-car, to which persons employed on the train had access, and neither the conductor, nor any one else, had been sworn as a mail-carrier. It was held in Bishop v. Williamson, 2 Fairf. 295, that the postmaster was liable for the acts of one whom he permitted, without having been sworn, to have the care and custody of the mail in his office. Such person was said to be acting as the agent or servant of the postmaster.

“The regular and usual business of the defendant was a carrier of passengers and goods. Its railroad was, by law, an established post-road; and by direction of the post-office department, was carrying the mails between Eufaula and Clayton. The agents and servants on the train were not employed for the special business of transporting the mails. They were employed in the general business of transportation, and, under such employment, were used in the incidental service of carrying the mail matter. Being thus generally engaged, the rendering such general service, as the private agents and servants of the defendant, the incidental service in carrying the mails does not impart to them the character of public agents and servants.”

Pryor Brown Transfer Co. v. Gibson, 154 Tenn. 260, 290 S. W. 33, follows the reasoning and ruling of our Supreme Court in Barker v. Chicago, P. & St. L. Ry. Co., supra. After a review of the cases bearing upon the question before it the Tennessee Supreme Court held that a transfer company, having a contract with the government for transportation of mail, was liable for negligence of its driver of a mail truck, and rejected the contention that both transfer company and driver were agents of the government, and that, therefore, the company was exempt from liability for negligence of its subordinate. In 51 A. L. R 193, where the Pryor case is reported, there is an extended annotation in which many cases bearing on the question before the Tennessee court are reviewed. The annotator states (200):

“However, the cases holding- the contractor liable for the negligent acts of his employees, in carrying the mails, under the doctrine of respondeat superior, are supported by the better reasoning.”

A recent case bearing directly upon the instant question is Skaggs v. Missouri-Kansas-Texas R. Co., 228 Mo. App. 808, 73 S. W. (2d) 302, decided July 2, 1934. Defendant concedes that it sustains plaintiff’s position, but it argues that because the decision of the Kansas City Court of Appeals was not reviewed by the Missouri Supreme Court it should have little weight, especially in view of the cases cited by defendant. In the Skaggs case the plaintiff shipped by United States mail 4,700 chickens to Kansas City and St. Louis markets. They were accepted by the postmaster at Nevada, Missouri, and stamped to be handled by the carrier as first class mail. The shipment was delivered to the station agent of the railroad company-for transportation on a particular train to the addressees, but the station agent neglected to get them on that train. The chickens were placed in the baggage room and practically the entire lot died from heat and lack of water. The railroad company advanced the same defense that defendant does here. It was contended that the chickens were in transportation by United States mail, and while engaged in such transportation the company was neither a private nor a common carrier, but an agent of the government, and no privity of contract existed between the plaintiff and the defendant. It is evident, from the able opinion, that the case was well argued on both sides. In affirming a judgment for plaintiff the court said (306-7):

“It is no doubt true that Skaggs, the owner of the chicks and the one who suffered the loss occasioned by the death of the chicks arising out of their being improperly handled by the baggageman and other station agents of the railway company in charge of its depot at Nevada, had no contract with the railway company for the transportation of the chicks. But this case is not founded upon the violation of an express contractual obligation, but for a breach of a public duty whereby Skaggs suffered the direct personal loss sued for. Sawyer v. Corse, 17 Grat. (Va.) 230, 94 Am. Dec. 445, 447. This case holds that a contractor with the Post Office Department for the carrying of the mail is liable to a third person for a loss occasioned by negligence in the performance of his, or its, duties, or for a loss caused by the negligence of a mere private agent and servant employed by the contractor-carrier to assist in performing the details of such contracted carriage. See, also, Pryor Brown Transfer Co. v. Gibson, 154 Tenn. 260, 290 S. W. 33, 51 A. L. R. 193; Central Railroad, etc., Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334; Raisler v. Oliver & Co., 97 Ala. 710, 12 So. 238, 38 Am. St. Rep. 213; Barker v. Chicago, Peoria, etc., R. Co., 243 Ill. 482, 90 N. E. 1057, 26 L. R. A. (N. S.) 1058, 134 Am. St. Rep. 382; Mellor v. Missouri Pac. Ry. Co., 105 Mo. 455, 16 S. W. 849, 10 L. R. A. 36.

“We are not herein attempting to subvert the rule, well established by the decisions of many courts, that a public officer or other governmental agency is not responsible for the acts or omissions of a subordinate, who also serves the government. But this rule cannot be invoked by a person or corporation undertaking by contract to render a service for the government for a compensation to be paid to it, and the negligence complained of is committed by its subordinates who are employed and paid by it and liable to be discharged at its pleasure. In the case at bar, the railway company is not a public officer nor an officer of the government, though in a certain sense an agent of the government engaged in the work of carrying the mails for a compensation due it, but the baggageman who negligently caused the loss was not an agent of the government. Whose work was the baggageman doing when he carelessly failed to load the chicks on the train and then still more negligently put the chicks in a close and suffocating place where it could reasonably be apprehended that they would die or be so injured as to cause the remainder not yet dead to die thereafter? Who was the master at the very time of the negligent act? The answer to both of these questions is, the M. K. & T. Railway Company. The petition alleges these facts, and although it states that the railway company was a common carrier, yet the negligence charged is that the servants of the railway negligently failed to promptly place the subjects to be transported on the train and then negligently placed them in the baggageroom under such conditions as to cause their death.”

After a very careful consideration of the important question before us we have reached the conclusion that under the particular facts and circumstances in this record and the principles of law applicable to the same, the position of defendant cannot be sustained. In our judgment the old rule that a postmaster is a public officer and not accountable for the misconduct of subordinates, who, though they may be appointed by him, are officers of the postal department, was never intended to cover a case like the present one. In Barker v. Chicago, P. & St. L. Ry. Co., supra, our Supreme Court stated that the reason for the exemption of postmasters from responsibility for the negligence or positive wrongs of their subordinates in the discharge of their public duties, arises from considerations of public policy, but that (486-7):

“The appellant (railroad company), however, is not a public officer or a public agent. It is a contractor with the government for the performance of a special service, viz., the carrying of the mail, and the same reason does not exist for holding it exempt from liability for the negligence of its servants as for holding the post-master general or a post-master exempt from liability for the defaults of those who act under them in the public service, as agents of the government.” The court further states that the considerations that exempted the postal officials from liability “do not apply to a corporation undertaking, by contract, to perform work or render service for the government for a compensation to be paid to it and with a view to its own profit, and where its subordinates are employed and paid by it and' liable to be dismissed at its pleasure,” and the court quotes with approval the following from Sawyer v. Corse, supra:

“Such a contractor is in no just and proper sense an officer of the government, and though he may be said to be in a certain sense an agent of the government because he is engaged in working for the government, yet the laborers and others whom he employs under him in the execution of his contract cannot be said to be agents of the government,-which does not know them, does not appoint them, does not control them, does not pay them and has nothing to do with them. He is not a public agent, because he is working for his own profit by fulfilling a contract which he has bound himself to perform and for which he is to receive compensation.”

The regular and usual business of defendant was that of a carrier of passengers and goods, and the train crew was employed in its general service. Defendant paid them and had the sole right to employ them and to discharge them. It. is conceded that there was no mail car service between Christopher and Royalton, that there was no mail clerk or government agent in charge of the mail in question, and that none of the train crew had ever taken any oath prescribed by law for persons employed by the post office department. The mail was being carried under a post office regulation that contemplated the “transportation and handling by railroad employees of the mail. ’ ’ The following facts show that the post office department did not recognize O’Neal as its officer or agent. He received the mail in question at Christopher from Neville, the regular mail clerk on train No. 625, the latter not requiring a receipt from O’Neal. When O’Neal’s train reached Royalton he handed the mail to the postmaster at that place, but the latter receipted for it to Neville. O’Neal did not even handle the postmaster’s receipt. O’Neal testified that, as baggageman, he had charge of the mail and that all of the directions he ever received as to his work came from the officials of defendant company. Whatever care he gave to the mail was but incidental to his general work as baggageman. .He testified that he was given no information as to the contents of lock pouches and that he had no knowledge as to what was in' them; that he did not even know that registered mail was carried in lock pouches. He excused his failure to notice if the lock pouches that he received from Neville were locked, upon the ground, to use his own words, “That was Neville’s (the regular mail clerk on train No. 625) business, the locking of it”; “it was nothing to me whether it was locked or not. ’ ’ He further testified that he was never given a key to the lock pouches. Indeed, it appears from O’Neal’s testimony that he handled the mail as he did ordinary baggage. It is not without some significance that the train crew at the time of the robbery was engaged in ordinary railroad work that had no connection with the mail. As it clearly appears that the post office department neither controlled nor directed any work of the train crew in connection with the mail, defendant is forced to contend that the members of the train crew must be regarded as “lent servants,” although there is no evidence to support such a theory. In our opinion the mere fact that mail was carried in the baggage car did not impart to the train crew the character of servants or agents of the post office department. The money in question was lost through the gross negligence of defendant’s servants, and we feel impelled to say that its bold contention that plaintiff has no redress for the great loss it has sustained does not, in view of the facts, appeal to our sense of justice. Plaintiff’s contention that O’Neal and the other members of the train crew were, at the time of the loss of the registered mail pouch, the private employees of defendant, and were not the employees, agents or officers of the United States government or the post office department and that therefore the doctrine of respondeat superior applies to the case, is, in our judgment, sound.

In our determination of this case we have not deemed it necessary to consider plaintiff’s contention that defendant did not exercise sufficient care in the selection of the members of the train crew in the first instance and that it retained them after the records of the company -.showed they had been careless and negligent in the performance of their duties; nor have we deemed it necessary to consider plaintiff’s further contention that the evidence shows that defendant failed to properly supervise and superintend the manner in which the train crew performed their duties, and that its failure in that regard proximately contributed to bring about the robbery.

Defendant has raised and argued, in its brief, several other points, but upon the oral argument its counsel conceded that it relied principally upon its major contention and that it did not place great reliance upon the other points raised. However, we will consider the additional points.

Defendant contends that “where the Post Office Department imposes a fine upon a railroad mail contractor for alleged delinquencies, its action in so doing constitutes an election of remedies and exhausts the only remedy available,” and “the government, having levied a ($50) fine against the railroad, has elected the remedy it desired to pursue. This remedy was an exclusive remedy and exhausted the rights of the Government or any one else against the railroad.” The trial court sustained a demurrer to the third special plea of defendant, which alleged the same defense asserted in the instant contention, and defendant argues that this action of the court constituted reversible error. In support of its position defendant cites United States v. Atlantic, Coast Line R. Co., 215 Fed. 56, which involved an appeal from a judgment entered by a District judge. (See United States v. Atlantic Coast Line R. Co., 206 Fed. 190.) The Circuit Court of Appeals sustained the holding of the District judge that because of the contract between the parties and the facts, the postmaster general intended the fine as an exclusive remedy. But the government is not a party to this proceeding, and plaintiff’s right of action, if it has one, is not based upon the theory of any privity of contract, or because of any interest that it may have in any contract between the carrier and the government, but upon the ground of tort liability, and we hold that the contention of defendant is not a meritorious one.

Defendant contends that “the Court was without jurisdiction to hear this cause, since plaintiff in bringing its suit as assignee in its own name had failed to file the affidavit required by Section 18 of the Practice Act,” and that this court should enter judgment in favor of defendant. The affidavit attached to the declaration is signed by “Melvin L. Griffith,” and alleges that he “is one of the attorneys” for plaintiff, “a corporation.” The declaration, with an affidavit attached, was filed on April 23, 1931. No demurrer was interposed, but on July 21,1931, a plea of the general issue was filed. The case was called for trial on April 19, 1934, and the new Practice Act applies. On July 5,1934, after the evidence for both sides had been closed, defendant, by leave of court, filed four special pleas, none of which alleged any defect in the declaration or questioned the jurisdiction of the court to hear the cause. At the close of plaintiff’s case defendant moved for a finding in its favor, and as one of the grounds for such motion alleged that the affidavit was not in conformity with section 18 of the Practice Act because made by one of plaintiff’s attorneys. Defendant cites section 18 of the old Practice Act. Section 22, par. 150, of the New Practice Act reads as follows:

“The assignee and owner of anon-negotiable chose in action may sue thereon in his own name, and he shall in his pleading on oath, allege that he is the actual bona fide owner thereof, and set forth how and when he acquired title. ...” The above section is the same, in substance, as section 18 of the old act. Defendant argues that section 18 is in derogation of the common law and must be strictly construed. Section 4, par. 132, of the new Practice Act provides:

“This Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, and the rule that statutes in derogation of the common law must be strictly construed shall not apply to this Act or to the rules made pursuant thereto. ... ”

Even under the old Practice Act the principle stated by defendant did not apply. (See Chicago, B. & Q. R. R. Co. v. Dunn, 52 Ill. 260, 263.) Fingado v. Wilson Braiding & Embroidering Co., 205 Ill. App. 267; Allis-Chalmers Mfg. Co. v. City of Chicago, 297 Ill. 444, and Gallagher v. Schmidt, 313 Ill. 40, cited by defendant, do not apply to the instant case. Here the plaintiff is a corporation and acts through its officers and agents. If defendant desired to raise the point it now raises it should have made a motion to strike the declaration. The argument that the declaration is fatally defective merely because the affidavit was signed by one of plaintiff’s attorneys does not appeal to us.

Defendant contends that “there being a variance in the evidence between the pleadings and the proof, and no evidence whatever in the record on one of the essential elements of plaintiff’s case, the trial court should have found for the defendant.” As defendant failed to raise, in the trial court, the question- of alleged variance it is precluded from raising it here. As to the point that there is no evidence on one of the essential elements of plaintiff’s case, it appears that George H. Hansen, who was “in charge of the shipping cage” of Continental Bank, was the man who shipped the money to the Franklin Coal Company at Royalton. Defendant, by inadvertence, calls Hansen “a bank teller.” Upon cross-examination the following occurred: “Mr. Freels (attorney for defendant): Q. Now, who was charged with this money shipment, the City National Bank? A. Of Herrin, Illinois, yes, sir. Q. And when you made up the parcel, you charged their account $21,974.00? A. Yes, sir. Q. And from the time that you made up the parcel and charged their account, that amount of money, that money belonged to them, didn’t it? A. It did.” Defendant now contends that because of this testimony we should hold “that the money was not the property of the Continental Illinois Bank & Trust Company, as alleged, but of the City National Bank of Herrin.” In view of the entire evidence it is somewhat difficult to take this contention seriously. The skilful question propounded to the witness called for a purely legal conclusion, and the answer amounted to no more than that. Moreover, it was, as plaintiff argues, an erroneous conclusion. In defendant’s brief it argues that because of Hansen’s testimony the money belonged to City National Bank of Herrin. In its reply brief it argues that the money belonged to Franklin County Coal Company, the consignee. That Continental Bank was the owner of the money that was shipped cannot be reasonably disputed. Its dealings were with the City National Bank of Herrin. The latter bank directed it to send the money to the Coal Company at Royalton. Through the gross negligence of defendant the money was not delivered, and after the Herrin Bank and the Coal Company had notified Continental Bank that the money had not been received the latter bank made “a duplicate shipment” of the same amount of money to the Coal Company, and plaintiff, under its policy issued to Continental Bank, paid to the latter the amount of the loss it had sustained. Could Continental Bank have held the Herrin bank for the money that was never delivered? Could the Herrin bank have held the Coal Company for the money that it never received? We are satisfied from a careful examination of the facts and circumstances that plaintiff made out a prima facie case that the money belonged to it, and if defendant seriously questioned the bank’s ownership it had full opportunity to offer evidence hearing upon the ownership. It did not do so.

After a careful consideration of the facts and circumstances bearing upon defendant’s further contention that except for certain incompetent evidence, admitted over objection of defendant, there would have been no connection shown between the currency shipment made up in Chicago on August 29, 1929, and any shipment which was ever handled between Christopher and Eoyalton, we find no merit in it.

Nor do we find any merit in defendant’s contention that the court erred in sustaining the demurrer to each of its four special pleas. The first alleged that the mail was being transported by the United States government through its post office department; the second alleged that the men handling the mail were on the occasion in question not employees of the railroad company but of the post office department; the third alleged that the $50 fine levied by authority of the postmaster general for the acts and omissions set up in the declaration constituted an exclusive remedy and exhausted the only legal remedy available to the government or anyone else; the fourth alleged that the carriage and handling of mail, including the registered parcel referred to in plaintiff’s declaration, was solely and exclusively the privilege, duty or function of the United States government. The trial court admitted all of the evidence offered by defendant in support of its ' special pleas, which, as we have heretofore stated, were filed after all of the evidence had been heard, but before judgment, and the trial court did not pass upon the demurrers until just before the entry of the judgment. Defendant, in the lower court and here, has had a full consideration of the defenses set up in the special pleas, and if we are right in our conclusion upon the main question in the case, it follows that the trial court did not err in sustaining the demurrers to the special pleas.

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

Judgment affirmed. ■

Sullivan and Friend, JJ., concur.