text:
    W. J. Bryson, Appellant, v. Jacob H. Fischer, Appellee.
    Gen. No. 8,174.
    Heard in this court at the February term, 1930.
    Opinion filed September 2, 1930.
    Frederick F. Beckman, for appellant; Chester F. Barnett, of counsel.
    Shelton F. McGrath and A. B. Copeland, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This is an action in assumpsit, brought in the circuit court of Peoria county by W. J. Bryson, appellant, against Jacob H. Fischer, appellee, for a recovery on an indemnifying bond.

The declaration consists of one count and is supported by an affidavit of claim by the appellant and copies of both the indemnity and bail bond are included in the declaration as parts of the declaration and affidavit. To the declaration a general demurrer was filed, which was by the court sustained, and judgment rendered against appellant Bryson in bar of the action and for costs of suit.

In order to have the record reviewed, appellant prosecutes this appeal.

The declaration is as follows: — “W. J. Bryson, plaintiff, by Frederick F. Beckman, his attorney, complains of Jacob H. Fischer, of trespass on the case on promises:

“For that the defendant, Jacob H. Fischer, on the 4th day of March A. D. 1929, by a writing obligatory, bearing date of that day, did acknowledge himself to be held and firmly bound unto the plaintiff herein in the sum of twenty-five hundred ($2,500) dollars, to be paid to the plaintiff, which said writing obligatory was and is subject to a certain condition thereunder written whereby, after reciting to the effect that the said W. J. Bryson has become or is about to become surety at the request of the defendant herein on certain bonds in the sum of twenty-five hundred ($2,500) dollars, one bond being for two thousand ($2,000) dollars and the other for five hundred'($500) dollars, and both bonds being given to the United States of America in the District Court of the United States for the Southern District of Iowa, the said bonds being dated on or about the 28th day of February, A. D. 1929, wherein Fred Jones is the principal; said bond being made a part of said writing obligatory as fully to all intents and purposes as if fully set forth therein, it was provided that if he, the said Jacob H. Fischer, defendant herein, his heirs, executors or administrators shall at all times save harmless and keep indemnified the said plaintiff, his successors and assigns, against all suits, actions, debts, damages, costs, charges and expenses, including court costs and counsel fees at law or in equity and against all loss and damages whatever that shall or may at any time happen or result to the said plaintiff, his successors or assigns, for or by reason of the suretyship of the said plaintiff as aforesaid, or any continuation or renewal thereof, and if he, the said Jacob H. Fischer, his heirs, executors or administrators, pay or cause to be paid to the said W. J. Bryson the premium on said bond or any continuation or renewal thereof, then this obligation to be void and of no effect, otherwise to remain in full force and virtue, as by copy of said writing obligatory and said condition thereof attached hereto and made a part hereof will appear.

“And the plaintiff avers that the said Jacob H. Fischer, his heirs, executors or administrators, nor any of them, have paid or caused to be paid to the plaintiff the premium on said bond or any continuation or renewal thereof.

“And the plaintiff avers that pursuant to and in consideration of the writing obligatory aforesaid, so executed by the defendant herein, as aforesaid, he did on, to wit, the 5th day of March, A. D. 1929, become surety upon the bonds in said writing obligatory aforesaid mentioned; that at the time the said defendant executed said writing obligatory, each of the parties hereto were informed and understood that the bond referred to in said writing obligatory as being for two thousand ($2,000) dollars • was in fact to be' a two thousand ($2,000) dollar bond, whereas, in fact and truth, said bond was in the amount of three thousand ($3,000) dollars; that on said 5th day of March, A. D. 1929, the plaintiff did become surety upon two bonds, one in the amount of three thousand ($3,000) dollars, and the other in the amount of five hundred ($500) dollars, both bonds being given to the United States of America in the District Court of the United States for the Southern District of Iowa, said Fred Jones being principal in both of said bonds, a condition of said three thousand' ($3,000) dollar bond being that the said Fred Jones shall personally be and appear before the said District Court of the United States for the Southern District of Iowa, on the first of the next term thereof to be holden in the courthouse of the said United States in the City of Davenport, in said district, on the 2nd day of April, A. D. 1929, and from day to day thereafter during that and subsequent terms, then and there to answer to such matters and things as shall be objected against him on behalf of the United States, etc., and not to depart without leave of said Court, etc., as by a copy of said bond attached hereto and made a part hereof will appear.

“The plaintiff further avers that on the said 2nd day of April, A. D. 1929, the defendant committed a breach of his said bond so entered into as aforesaid with the United States of America by then and there failing to be and appear before the District Court of the United States for the Southern District of Iowa on the said 2nd day of April, 1929, and made default therein; whereupon it was ordered on the 3rd day of April, A. D. 1929, by said District Court, that the said bond be and the same was forfeited to the United States of America in the sum of three thousand ($3,000) dollars.

“The plaintiff further'avers that by reason of the premises he became liable to pay and indebted unto the United States of America, the sum of three thousand ($3,000) dollars, and that on the 8th day of April, A. D. 1929, he, the said plaintiff, did pay to the clerk of the said District Court of Iowa the sum. of three thousand ($3,000) dollars, by means whereof the defendant, Jacob H. Fischer, then and there became liable to pay to the plaintiff on request the sum of twenty-five hundred ($2,500) dollars, in accordance with the terms and obligations of his writing obligatory above mentioned, and, being so liable, the defendant, in consideration thereof, then and there promised the plaintiff to pay him the said sum of money on request; yet the defendant, though requested, has not paid to the plaintiff the said sum of money, or any part, thereof, but refuses so to do, to the damage of the plaintiff of thirty-five hundred ($3,500) dollars, and therefore he brings his suit, etc.”

In support of his demurrer, appellee insists that he is not liable under the indemnifying bond sued on as the declaration shows that appellant altered appellee’s obligation as surety thereon, executed a bail bond of different amount and date from the one specified in the indemnity agreement; that such a departure is fatal. In other words, it is the contention of appellee that the bonds of the character here sued on are strictly construed and that, in as much as the bail bonds in question were for $3,000 and $500 instead of $2,000 and $500, and in view of the fact that they were dated March 5, 1929, instead of February 28, 1929, there can be no recovery against him for that reason.

It will be observed that the indemnifying bond here sued on among other things provides: — that “Whereas the said W. J. Bryson has become, or is about to become, surety at my request on certain bonds in the sum of $2,500, one bond for $2,000 and the other bond being for $500, and both bonds being given to the United States of America in the District Court of the United States for the Southern District of Iowa and dated on or about the 28th day of February, 1929, wherein Fred Jones is principal, which bond is made a part hereof as fully to all intents and purposes as if fully set forth herein.”

As a condition the bonds provide that “If I, my heirs, executors or administrators shall at all times save harmless and keep indemnified, the said W. J. Bryson, his successors and assigns against all suits, actions, debts, damages, costs, charges and expenses, including court costs and counsel fees, at law or in equity, and against all loss and damages whatever, that shall or may at any time happen or result to the said W. J. Bryson, . . . then this obligation is to be void and of no effect, otherwise to remain in full force and virtue.”

It will be seen that the indemnifying bond refers to the bail bonds to be given and makes the same a part thereof. On an examination of the indemnity bond as disclosed by the record which was before the court, appellee over his own signature represented that one of the bail bonds upon which appellant was to become surety in the Federal Court at Davenport, Iowa, was in the amount of $2,000, and by express reference made said bail bond a part of the bond signed by him “as fully to all intents and purposes as if fully set forth.”

The recitals all state that said bail bonds on which appellant was to become surety were dated February 28,1928, four days before appellee signed the bond sued on. Evidently the, true amount of the bail to be furnished by Fred Jones had already been determined and fixed by the Federal Court, and at the time the indemnity bond was signed by appellee, that amount was as much within his knowledge as within the knowledge of the appellant for the reason that he made the bail bonds a part of his own bond.

When a bond by reference makes a contract a part thereof, to indicate the liability assumed, the contract becomes part of the guaranty, and both the bond and the contract must be taken and read together as one instrument in order to ascertain the liability of the obligor on the bond. Vol. 9 Corpus Juris 36; Bartlett v. Wheeler, 195 Ill. 445.

A contract which by the terms of the bond in question is made a part thereof, is as fully and completely a part of the bond itself as though copied therein at length. City of Flora v. Searles, 127 Ill. App. 465468; Bartlett v. Wheeler, supra; Jordan v. Kavanaugh, 63 Iowa 152; Baker v. Bryan, 64 Iowa 561; Brown v. Markland, 22 Ind. App. 652.

When the indemnity bond and the bail bonds are read together, all of the facts were before the appellee and he is bound to the same extent he would have been if the bail bond had been copied in his indemnifying bond and he affixed his signature thereto.

Since it is the rule that both the bond and the contract must be taken and read together as one instrument in order to ascertain the liability of the obligor on the bond, appellee is in no position to urge that his obligation has been extended by implication or construction nor increased in any manner for the reason he limited his liability in his indemnifying bond to $2,500, and no effort is being made to recover more than that from him in this proceeding. Appellee does not become liable to pay a sum greater than $2,500, no matter what the amount of the bail bond may be.

In determining the question of liability in this cause, it is proper to keep in mind that the indemnity bond sued on and the recitals therein is the bond of appellee as well as his recitals. The bond was given to induce the appellant to become surety for one Fred Jones in a criminal cause. Appellant reposing confidence in appellee and relying upon the promises made by him in his bond did become surety for Jones and afterwards did pay to the clerk of the district court of the United States for the Southern District of Iowa the sum of $3,000, because of the default made by J ones.

One who signs a bond and thereafter obtains all the benefits thereof is estopped from denying its binding obligation and the truth of the recitals therein. Moses v. Royal Indemnity Co., 276 Ill. 177, 179-180; McCarthy v. Alphons Custodis Chimney Const. Co., 219 Ill. 616-623; George v. Bischoff, 68 Ill. 236.

A written obligation to indemnify a party in a certain amount on certain specified conditions has the characteristics of a bond. Globe Indemnity Co. v. Kesner, 203 Ill. App. 405.

A contract of guaranty must be interpreted according to the evident intention of the parties as gathered from its context and the circumstances attending its execution. Haish v. Marshall Field & Co., 103 Ill. App. 90; Swisher v. Deering, 204 Ill. 203.

Where a guaranty makes special reference to a proposition between the parties to the original transaction, the two agreements will be construed together. Bogardus v. Phoenix Mfg. Co., 120 Ill. App. 46.

It is also urged that the indemnity bond sued on is void as against public policy.

By the weight of authority a bond or contract to indemnify a person on account of his becoming bail for a. prisoner charged with criminal offense, is not void as against public policy. Vol. 31 Corpus Juris 425.

In Leary v. United States, 224 U. S. 567, Judge Holmes in passing upon the public policy phase of this class of contracts among other things said: “The only matters which seem to us to need argument are the questions of public policy and laches. As to the former, the ground for declaring the contract invalid rests rather on tradition than on substantial realities of the present day. It is said that "the bail contemplated by the Revised Statute (section 1014) is a common-law bail and that nothing should be done -to diminish the interest of the bail in producing the body of his principal. But bail no longer is the mundium, although a trace of the old relation remains in the right to arrest (Rev. Stat. section 1018). The distinction between bail and suretyship is pretty nearly forgotten. The interest to produce the body of the principal in court is impersonal and wholly pecuniary. If, as in this case, the bond was for $40,000, that sum was the measure of the interest on anybody’s part, and it did not matter to the government what person ultimately felt the loss, so long as it had the obligation it was content to take. The law of New York recognizes the validity of contracts like the one alleged and, without considering whether the law of New York controls, we are content to say merely that the New York decisions strike us as founded in good sense (Maloney v. Nelson, 144 N. Y. 182, 189 s. c. 158 N. Y. 351-355.) ”

Appellee says that the holding in the Leary case is based upon the law of the State of New York. The New York law provides for bail the same as does the State of Illinois and in both New York and Illinois, defendants in criminal cases may enter into a personal recognizance by posting a cash bond.

From the opinion in the case of Essig v. Turner, 60 Wash. 175, 110 Pac. 998, it appears that in the State of Washington they have a statute by which a prisoner may in lieu of personal surety deposit money in a sum equal to the amount fixed for his appearance and in discussing the question of the policy of the State to insist upon personal liability of surety, the court said: — “It therefore cannot be said to be a part . of the public policy of this State to insist upon personal liability of sureties for there need not be such personal liability in any case if the accused make a deposit of money in lieu of bail as provided by the statute.”

A bond of indemnity given by a person under charge of felony to indemnify his bail in a recognizance for his appearance to answer the charge is not void as against public policy. Carr v. Davis, 64 W. Va. 522, vol. 16 Am. & Eng. Annotated Cases 1031.

In Stevens v. Hay, 61 Ill. 399, a bail bond was signed by the plaintiff in the State of Ohio and thereupon he became the assignee of a mortgage which was given by the mortgagor for the expressed purpose of indemnifying whoever might sign the bail bond. The accused fled and the criminal bond was forfeited.

After discussing at length the conflicting evidence in the cause, the court sanctioned the policy of enforcing indemnity at page 403 by saying: — “We regard the evidence as abundant to show that he (the plaintiff) was the assignee, and, as such, had the right, which has vested in his representative to enforce the mortgage to indemnify him for moneys paid by Mm on the forfeiture of the recognizances.” In this case the court recognized the right of one who had signed a bail bond for another and indemnified himself against loss by taking a chattel mortgage upon the property of a third person to enforce Ms lien against such third person.

We take it from the authorities that what is meant when it is said that the bond is void against public policy is this — that it tends to make the bail less watchful to prevent the escape of the accused from trial than he would be if not indemnified; that if not indemnified, the bail would keep strict watch on the accused and on suspicion of escape to save himself from loss would arrest the accused and return him to prison to stand trial, but being indemnified he does not care.

We are not unmindful of the fact that the decisions of the court are not uniform in their holdings on the question of the propriety of the giving a bond of indemnity given by a prisoner under charge of felony to indemnify his bail in a recognizance for his appearance to answer the charge. In some of the States it is held that a bond given for such purpose is void as against public policy.

We have examined a number of cases in which this question has been very fully and ably discussed, and we are clearly of the opinion that the weight of authority is to the effect that a bond or contract to indemnify a person on account of his becoming a. bail for a prisoner charged with a criminal offense, is not void against public policy.

As was said in Carr v. Davis, supra:—“The law allows bail. We may say that the law favors bail as a relief from prison in cases where bail is grantable, and it would tend to defeat this merciful provision of law if we should adopt the harsh rule that a man, perhaps innocent, cannot use his property to indemnify his friend to relieve him from prison bars. We do not see that the matter is so far against public policy as to impel us to adopt so severe a rule.”

We conclude therefore, the bond sued on is not void on the ground of public policy.

In conclusion appellee was eager enough to procure the release of Jones, to solemnly promise to indemnify appellant to the extent of $2,500, if appellant signed the bail bond. The true purpose of his promise was to have appellant become surety for Jones. Appellant did so and it cost him $3,000.

The rule announced in Dick Co. v. Sherwood Letter File Co., 157 Ill. 325, is quite appropriate to invoke here where the court, at page 338 said: — “It seems that these more important parts of the contract — the very promises that each made to the other — should be given prevailing force and effect in the interpretation of the agreement, rather than a matter that is stated by mere way of recital in a preamble. ’ ’

There is no intention to extend the indemnity agreement beyond its explicit terms. In view of the state of the record we are of the opinion that the declaration filed in this cause, states a cause of action. There may be some question as to the amount appellant is entitled to recover, if he can prove his case as laid in the declaration, but this matter does not arise upon the general demurrer.

We conclude therefore, that the circuit court of Peoria county erred in sustaining the demurrer to the declaration. The judgment of the circuit court of Peoria county is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Jett

license: Public Domain

text:
    Robert Fuller, a Minor, by Theresa Fuller, his Mother and Next Friend, Defendant in Error, v. Glenn Pool, Trading as Pool Auto Sales, Plaintiff in Error.
    Gen. No. 8,204.

      Heard in this court at the February term, 1930.
    Opinion filed September 2, 1930.
    Wilhelm & Wilhelm and Butters & Butters, for plaintiff in error.
    Richolson, Armstrong & O’Meara, for defendant in error; John H. Armstrong, of counsel.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This is a writ of error to review a judgment of the county court of LaSalle county rendered in favor of Robert Fuller, an infant, who brought suit by Theresa Fuller, his mother as his next friend, against G-lenn Pool, doing business as Pool Auto Sales, plaintiff in error, to recover the purchase price of an automobile bought by him from the plaintiff in error. The trial resulted in a verdict and judgment in favor of the defendant in error for $373.50.

The record discloses that Robert Fuller, the defendant in error, a minor, living with his mother, entered into a contract with the plaintiff in error to purchase a Chevrolet car, and the defendant in error delivered to plaintiff in error a Ford automobile taken in at $75, paid $30 cash, and he and his mother signed a note for $210, for the balance to be paid in 12 monthly instalments of $17.50 each; said deferred payment was also secured by a conditional sales contract on the Chevrolet car. The conditional sales contract was executed by Robert Fuller and Theresa Fuller, his mother.

The defendant in error claims that he has paid two payments of $17.50 each on the $210 note, making total money payments of $65. The note in question was sold when received or shortly thereafter by the plaintiff in error to the Commercial Credit Trust,' a finance company, and indorsed without recourse.

It is the contention of the plaintiff in error that the payment of the $30 and the two payments of $17.50 each were never paid to him; that all of the payments made or claimed to have been made by the defendant in error including the Ford car totaled $140.

The defendant in error returned the Chevrolet car to the plaintiff in error on February 5, 1927, and rescinded the contract on account of his minority.

The record further discloses that the credit company, owner of said note for $210, took judgment by confession against the defendant in error and Theresa Fuller his mother, on April 27,-1927, for $196.70. On December 28, 1928, this suit was brought to recover from plaintiff in error the amount claimed to be due by reason of the rescission of said contract.

The record further shows that on January 7, 1929, 10 days after this suit was instituted, the mother of the defendant in error raised $213.30 to pay said judgment and delivered the same to the defendant in error, and defendant in error satisfied the judgment. The defendant in error testified that he gave his mother a note for the amount which she advanced to satisfy the judgment.

It is insisted by the plaintiff in error that the defendant in error is not entitled to recover from him any greater sum than the value of the property which he had. turned over to the plaintiff in error and the amount of cash payments he had made on said contract ; that he was not entitled to recover from him the amount paid to satisfy the judgment taken against the defendant in error and his mother by the said credit company. In this connection it is urged that the mother was liable on the note and contract, and that a fair conclusion from the evidence is, that she in truth and in fact paid said judgment.

It is the contention also of the plaintiff in error that the defendant in error is not entitled to recover the amount paid in satisfaction of said judgment for the reason that, being an infant, he could have defended against the judgment. The judgment was . voluntarily paid as we have already seen.

It is, therefore, urged by the plaintiff in error that the court erred in admitting proof of the payment of the judgment of the Commercial Credit Trust, obtained against the defendant in error and Theresa Fuller.

It will be remembered that this cause of action is based on the disaffirmance of a contract by the defendant in error because of the fact that he was an infant. The judgment was entered and paid to the credit company after the rescission by the minor at a time when the plaintiff in error had no interest in said judgment.

The real question then involved in this suit is, what is the effect of the rescission or disaffirmance by an infant of his contract? On avoiding a contract, the question naturally arises, are the rights of the minor fixed and determined by the contract disaffirmed by him, or are they fixed by the law.

In Vol. 3, Page on Contracts, section 1622, page 2800, it is said: — “On avoiding a contract for the purchase of personalty, the infant may recover partial payments which he has made under such contract. Upon disaffirmance, the rights of the parties become fixed and neither party can alter such rights without the consent of the other.”

Myers v. Rehkopf, 30 Ill. App. 209, was a suit in which Myers was an infant and the question arose as to what were the rights of the parties if the infant repudiated his contract. In discussing the rights and obligations of the parties thereto at page 210, the court said:—“If the appellee rescinds or repudiates the contract because of infancy, the rights and obligations of the parties are governed wholly by the law and not at all by their contract.”

The avoidance of any part of the contract by the infant avoids the entire contract and having been once legally avoided cannot subsequently be revived by an effort to reverse the avoidance. 14 Ruling Case Law 245.

The rights of the parties are as if the contract never existed. 14 R. C. L. 242.

The payment of $213.30 was made to the sheriff of LaSalle county for the Commercial Credit Trust. This payment was made 10 days after the summons was served on the plaintiff in error, and 10 days after the declaration was filed. The payment was made two years after the contract was disaffirmed. It was the payment of a judgment which Theresa Fuller, the next friend in the suit of Robert Fuller, was legally bound to pay or which she could have had vacated or opened up for a defense, if any, she may have had.

The evidence admitted over the objections of the plaintiff in error shows payment of $213.30, the amount due on the judgment to the finance company after the suit was started, and without a supplementary pleading being filed and two years after disaffirmance of the contract.

In Lemon v. Beeman, 45 Ohio St. 505, 15 N. E. 476, in discussing the question of an infant disaffirming his contract, the court said:—“The disaffirmance of a contract by an infant is the exercise of a right similar to that of rescission in the case of an adult — the ground being minority, independent of questions of fraud or mistake, but, in all else the general doctrine of rescission is departed from no further than is necessary to preserve the grounds upon which the privilege is allowed ; and is governed by the maxim that infancy is a shield and not a sword. He is not in all cases, as is an adult, required to restore the opposite party to his former condition; for if he has lost or squandered the property received by him in the transaction that he rescinds and so is unable to restore it, he may still dis-affirm the contract and recover back the consideration paid by him without making restitution; for if it were otherwise, his privilege would be of little avail as a shield against the inexperience and improvidence of youth. ’ ’

The rights of the parties were fixed at the time of the rescission of the contract; to allow the defendant in error to recover the amount of the judgment obtained by confession which was void as to him, two years after his avoidance of the contract and his rescission thereof would permit his infancy not only to operate as a shield but to be used as a means of an unlawful attack upon the rights of another.

We think the defendant in error is entitled to recover the value of the Ford car together with any sum or sums of money he paid to the plaintiff in error, but is not entitled under the facts as disclosed by this record to recover the amount of the judgment paid to the finance company.

It is also insisted that the court erred in giving the defendant’s in error 2nd, 3rd, 4th and 5th instructions. We have examined these instructions; they entirely ignore the question of liability of the mother on said note and on the contract given in connection with the purchase of the automobile.

We are of the opinion that the court erred in the giving of said instructions. For the reasons above, we conclude therefore that the judgment of the county court of LaSalle county should be reversed and the cause remanded.

Reversed and remanded.


text:
    Frank Novina, Administrator of the Estate of Joseph Novina, Deceased, Appellee, v. Alexander Padley and George Jonanovich, Trading as Serbian Bakery Company, Appellants.
    Gen. No. 8,181.
    Heard in this court at the February term, 1930.
    Opinion filed August 21, 1930.
    Murphy O. Tate, for appellants.
    D. R. Anderson and C. D. Dibell, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This suit was brought by Frank Novina, administrator of the estate of Joseph Novina, deceased, appellee, to recover damages for the death of said Joseph Novina, resulting from injuries sustained by him by reason of his having been struck by a motor truck of Alexander Padley and George Jonanovich, copartners doing business under the firm name of Serbian Bakery Company, appellants.

A jury trial was had resulting in a verdict in favor of appellee in the sum of $750, upon which judgment was rendered and from which an appeal is prosecuted to this court.

The declaration consists of one count only, and charges general negligence:.

The record discloses that Joseph Novina, the deceased,, on the 2nd day of February, 1927, about five-thirty (5:30) o’clock in the morning and while it was dark, was proceeding in a northerly direction along State Highway No. 4, to the place where he was employed and was traveling near the middle line of the pavement when the truck of appellants, which was also proceeding northerly on said highway, struck the deceased, inflicting injuries from which he died. The pavement on which the deceased was walking was 20 feet wide, and the scene of the accident was flanked on each side of the highway by a shoulder and a sidewalk or pathway.

The collision and injury occurred outside the city limits of the City of Joliet and where there were no street lights. It appears that the truck was running at a rate of speed of about 30 or 35 miles per hour; the lights on the truck were lit; that the driver of the truck did not see the deceased until he was within 40 feet of him when he began to sound his horn and put on the brakes; on account of the icy condition of the highway the driver of the truck was unable to stop the same; that he put on his brakes and the same began to slide and that he ran into Novina, causing injuries that resulted in his death.

The evidence shows that Frank Novina was the only heir and next of kin of the deceased, and that he lived with his father most of the time. The deceased was of the age of 65 years at the time of his death. Frank Novina is 43 years of age and was employed at the time of the death of his father.

The evidence further shows that the deceased had had one leg amputated and was walking on a wooden leg.

The errors assigned are that the verdict is contrary to the law and the evidence; that the verdict was against the greater weight of the evidence; that the trial court erred in refusing the peremptory instructions offered to find the defendants not guilty; that the court erred in overruling motions for a new trial and in arrest of judgment and in entering judgment on the verdict of the jury.

It is the contention of the appellants that the deceased in walking upon the paved highway, as disclosed by the evidence and at the place where he was when he was struck by the truck was guilty of negligence and thereby contributed to the injury that resulted in his death. "Without regard to the alleged negligence of the driver of the truck in question, we are of the opinion no recovery can be sustained in this case because of the contributory negligence of the plaintiff’s intestate.

Cahill’s St. ch. 121, ¶ 214(2) expressly provides that pedestrians shall walk in the opposite direction from approaching cars coming toward them and that upon the approach of a motor vehicle it is the duty of the pedestrian to step off of the pavement.

In the instant case, the deceased was traveling near the middle of the highway and directly in the path of the truck approaching him from behind. It was his duty to have been where the law required him to be if he saw fit to use the pavement on which to walk. He was guilty of negligence under the circumstances as shown by the evidence; that his negligence was the efficient and contributing cause of the accident that resulted in his death. It is plain that if it had not been for his negligence he would not have been in the place of danger and therefore would not have been injured.

The judgment of the circuit court of Will county is reversed and the cause remanded.

Reversed and remanded.


text:
    Farmer’s Educational & Co-Operative Union of America, Illinois Division, Appellant, v. William Langlois, Appellee.
    Gen. No. 8,195.

      Heard in this court at the February term, 1930.
    Opinion filed September 2, 1930.
    Donovan, Bray & Gray, Walter F. Lynch and Claude M. Granger, for appellant.
    Hunter & Minor and John A. Mayhew, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This is an appeal by the Farmer’s Educational and Co-operative Union of America, Illinois Division, appellant, hereinafter referred to as complainant, from a decree of the circuit court of Kankakee county, dismissing its bill for an injunction and accounting against William Langlois, hereinafter called defendant, for want of equity, and dissolving the temporary injunction.

The complainant is a co-operative marketing association organized under the “Co-operative Marketing Act of Illinois,” Cahill’s St. ch. 32, ¶ 455 (1) et seq. The complainant is composed of 2,700 farmer members, producers of corn and other farm products and is engaged in marketing the products of its members without pecuniary profit to itself.

William Langlois, the defendant, is a farmer and became a member of the complainant association, and entered into an agreement with it on April 26, 1927, under which he was authorized to market his grain and certain other farm products for a period of 10 years from the time the contract became operative and thereafter until the contract was terminated by notice of either of the parties.

The defendant delivered grain to the complainant until some time in December, 1928, when he failed and refused to deliver his grain, whereupon the complainant filed its bill for an injunction to restrain him from delivering the grain and other products included within his contract to any one other than complainant for the period of time provided therein, and prayed for an accounting to ascertain the amount of liquidated damages due for grain sold to others in violation of the contract into which he had entered with the complainant.

A temporary injunction was issued, as provided by the Co-operative Marketing Act, upon the complainant giving bond as directed by the court. The defendant entered a motion to dissolve the injunction. On a hearing of the motion the court dismissed the bill and dissolved the injunction.

In its bill, the complainant alleged that it was incorporated on the 26th of February, 1926, by producers of agricultural products to minimize speculation and waste in the production, distribution and marketing of agricultural. products, to stabilize agricultural markets, and to handle co-operatively agricultural products of its producer members without any pecuniary profit to itself; that in order to accomplish said purposes, a large number of producers became members of it and each of said producers entered into an agreement with the complainant and with each other for co-operative marketing of the merchantable grain and other products produced by them; that the defendant became a member and entered into an agreement in writing on April 26, 1927, with the complainant; that by said agreement the defendant agreed to deliver all of the merchantable grain and products produced or acquired by him to the complainant from the date of said agreement for a period of 10 years and thereafter continuously unless canceled by written notices given by the parties between the 15th day of December and the 30th day of December inclusively, of any year after the expiration of the 10-year period; that the defendant constituted the complainant his sole and exclusive agent for the purpose of handling and marketing his grain and other products and said complainant agreed to market said grain and other produce in such a way as it would deem best for the mutual benefit of the contracting parties; that all of said agreements were to be deemed one contract between the complainant and all of said producer members.

It is further alleged that it is provided in said agreement that it should become and be in full force and effect when the signatures of producers representing 55 per cent of the farmers of defendant’s township or trade territory had been secured to similar agreements and for all matters of signatures and for all statements of fact in connection therewith, the written statement of the complainant signed by its secretary or Ms assistant should be absolutely conclusive; that the signatures of producers representing 55 per cent of the farmers in the defendant’s township or trade territory were secured and that a written statement to that effect, signed by the secretary of complainant, was given to the defendant on or about October 5, 1928; that on October 5, 1928, the defendant was notified to deliver his grain and produce to the local receiving station provided by the complainant at Manteno, Illinois, and that the defendant failed, neglected and refused to deliver the agricultural products covered by his agreement to it at Manteno, or at any other point or place; that the defendant produced 2,800 bushels of corn for market and intended by him to be marketed, and that in December 1928 he marketed said 2,800 bushels of corn to persons other than complainant.

It is also alleged that unless restrained, the defendant will continue to sell, consign and market. all his merchantable grain and produce to persons other than the complainant and that the defendant has informed the complainant that he will not deliver any of the merchantable grain produced by Mm for market; that the complainant has performed all the terms and covenants contained in the agreement on its part to be performed and sets forth that it has entered into similar agreements with 2,700 other farmer producers; that it is and has been at all times ready and able to receive, handle and market merchantable grain and other products produced by the defendant and other producer members, and since its organization it has received, handled and marketed agricultural products by its members and has marketed such products for the mutual advantage of the parties; that it is ever willing and able to perform its contract and offers to perform the contract and agrees to receive, handle and market the grain and products produced or acquired by the defendant and other producer members and offers to do full equity in the premises.

It is charged that the complainant relied upon the - agreement of the defendant and like agreements of other producer members, had made contracts establishing receiving stations and plants, borrowed money, hired employees and expended large sums in the foregoing acts and contracted to spend further sums in the foregoing activities, all with the expectation of receiving delivery of the merchantable grain and products of its said producer members, including the defendant; that because of the co-operative character of complainant it would be extremely difficult to ascertain the damages that would be suffered by it in case the defendant should refuse to deliver its products in accordance with the terms of its agreements; that a remedy at law is inadequate against any producer who might fail to deliver the commodities which he is obligated to deliver by the agreement, etc.

The bill sets forth a part of the contract as follows: “The producer agrees that in the event of a breach by him of any material provision hereof, particularly as to the delivery or marketing of any products either to or through the Union, the Union shall, upon proper action instituted by it, be entitled to an injunction to prevent further breach hereof and a decree for a specific performance hereof according to the terms of this agreement.”

The above and foregoing allegations of the bill, we think, are sufficient to be considered in determining the questions involved in this cause.

The answer filed by the defendant consists largely of a detailed denial of the allegations of the bill. It does, however, make some .certain affirmative allegations. Appellee admits signing;.an agreement similar to the copy attached as an exhibit to the bill. He alleges however, that at the time he signed it, he was ill and does not remember all of the circumstances that took place, and that there were four or five men present, who said they were going to stay until he signed it, and that after an hour he yielded and signed it.

The effect of his answer in this respect is that he signed the agreement because so much pressure had been brought to bear upon him and that by the conduct of certain members of the complainant he was coerced into signing the agreement.

A number of reasons are assigned by the complainant for a reversal of the decree.

The defendant insists that the contract is void; that there is no evidence that 55 per cent of the producers within the alleged territory signed similar agreements at any time; that the notice sent to the defendant under date of October 5, 1928, does not comply with section 25 of the contract because it does not contain a statement of facts but simply conclusions and that the complainant failed to prove the allegations of its bill.

The "Co-operative Marketing Act” of June 21, 1923, provides in section 18, that the association and its members may make and execute marketing contracts similar to the contract entered into between the complainant and the defendant. Subparagraph “b” of section 19, Cahill’s St. ch. 32, ¶ 455 (19) (b), reads as follows:—

“In the event of any such breach or threatened breach of such marketing contract by a member, the association shall be entitled to an injunction to prevent the further breach of the contract and to a decree of specific performance thereof. Pending the adjudication of such an action and upon filing a verified complaint showing the breach or threatened breach, and upon filing a sufficient bond, the association shall be entitled to a temporary restraining' order and preliminary injunction against the member.”

Milk Producers Marketing Co. v. Bell, 234 Ill. App. 222, is a case in which the appellee, a corporation, filed its bill against the appellant Bell in which it sought to restrain the appellant by injunction from selling milk to persons other than to appellee in violation of a contract between appellant and appellee and for an accounting of milk previously sold. This court held a contract quite similar to the one involved in this cause valid, and awarded the Marketing Company the injunctive relief it sought.

In our opinion at pages 231-232 among other things we said: “In several of the States the courts have been called upon to determine the right of a co-operative corporation not for pecuniary profit, to an injunction against one of its members who has entered into a contract- for the sale of products and has' later refused to comply with the contract. In many of the cases cited, as in the case now before us, the contract of membership in the corporation provided that an injunction might be issued to prevent a violation of the contract. In the following cases it was held that the corporation has the right to an injunction under those circumstances and that an injunction was the only adequate remedy of the corporation. Washington Cranberry Growers’ Ass’n v. Moore, 117 Wash. 430, 201 Pac. 773; Phez Co. v. Salem Fruit Union, 103 Ore. 514, 201 Pac. 222; Owen County Burley Tobacco Society v. Brumback, 128 Ky. 137, 107 S. W. 710; Hollingsworth v. Texas Hay Ass’n (Tex. Civ. App.), 246 S. W. 1068; Kansas Wheat Growers’ Ass’n v. Schulte, supra; Grange Growers’ Co-operative Ass’n v. Lentz, supra. It has also been held that the corporation is entitled to an injunction even though the contract provides for liquidated damages in the case of a breach thereof. Bradshaw v. Millikin, 173 N. C. 432, 92 S. E. 161, L. R. A. 1917 E 880; Pierce County Dairymen’s Ass’n v. Templin, 124 Wash. 567, 215 Pac. 352; Grcmt County Board of Control v. Allphin, 152 Ky. 280, 153 S. W. 417. We think under the facts alleged in this bill, notwithstanding the fact that the contract provided for both liquidated damages and an injunction, appellee was entitled not only to liquidated damages, but also to an injunction restraining appellant from selling his products to persons other than appellee, upon the theory that appellee had no other adequate remedy at law."

In view of the object for which' the complainant was organized, the failure of the contracting parties to comply with the agreement to deliver grain in accordance with the terms thereof will defeat and destroy the purposes for which it was intended.

If the members of the association fail to deliver their' grain, complainant will necessarily suffer injury and damages in an amount which cannot be ascertained in that it will be unable to secure the amount of grain which it was organized to handle and which it has prepared to handle and will be unable to stabilize grain markets or to prevent speculation or waste in the production, distribution and marketing of products. Complainant will also be damaged in an amount which cannot be ascertained in that the pro rata cost of its members, who deliver grain in accordance with their contract, will be raised to a degree which cannot be easily estimated.

According to the answer of the .defendant, he attempts to avoid the contract on the ground that he was intimidated and coerced into signing it by the solicitors of the Union. All of the witnesses of the complainant who were present at the time the defendant signed the marketing agreement, testified that no duress or coercion was used.

Furthermore, almost two years had elapsed from the time he’ signed the agreement before any such complaint was made. The defendant offered no testimony in support of Ms contention of duress and intimidation.

From an examination of the record, we are of the opimon that the defendant has failed to establish any fact alleged or to contradict or impeach the testimony of the complainant’s witnesses relative to the execution of the contract.

In support of the defendant’s contention that the contract is void because of its uncertainty, the point is made that the language "township or trade territory” is so uncertain that it cannot be determined what is meant by it. The defendant is in no position to raise this question because the agreement and bylaws especially provide that the decision as to the extent of the trade territory shall be determined by the organization and that the notice received by the defendant conclusively binds him as to the decision concerning the territory.

Paragraph 14 of the contract is as follows: “The second party hereby agrees that inasmuch as the boundaries of its trade territory may vary in the judgment of individuals, the determination of said boundary shall be decided exclusively by first party after receiving such suggestion as second party may care to offer thereon.”

Furthermore, it appears from the record that the territory included the township of Manteno, 36 sections, part of Rockville and Sumner, that sections 7, 18 and 19 in Sumner Township were included. Those are the sections that adjoin the town of Manteno and join each other and extend north and south.

We think from what is disclosed by the record that the territory is compact and contiguous. We observe no uncertainty in the contract in this respect. The notices sent out by the president and secretary of the complainant contained a statement of ultimate facts and fully complied with the agreement. The defendant cannot be heard to say that he did not receive sufficient notice of the organization of the trade territory.

Appellee in his answer denies that the signatures of producers representing 55 per cent of the farmers in the defendant’s township or trade territory were secured, as alleged in the bill of complaint, on October 5, 1928, or at any time thereafter or that the complainant did not have the signatures of producers representing 55 per cent of the farmers or producers in the defendant’s township or trade territory.

It will be remembered that the defendant made application for membership and entered into a written agreement with the complainant which provided that it should become in full force and effect when the signatures of producers representing 55 per cent of the farmers of defendant’s township or trade territory had been secured to similar agreements.

It is further provided that as to all matters of signatures and as- to statements of facts in connection therewith, the written statement of the union, signed by the secretary or his assistant, should be absolutely conclusive.

The record also shows that the complainant did have 55 per cent of the producers in the said trade territory. The evidence further shows that the defendant was notified as provided for in the agreement that the required signatures had been obtained for the organization of the Manteno Farmers’ Union Co-operative Association.

It is urged by the defendant that there is no proof that he was a producer within the alleged trade territory. On the oral argument of his cause in this court it was insisted that the record does not disclose the fact that the defendant lives within the trade territory. It was stated by counsel representing the complainant that this question was not raised in the court below. If it be true that the question was not raised in the circuit court, it could not be raised for the first time in this court. But whatever the fact may be in that regard, the notice to the defendant under the provisions of the agreement and by-laws binds him to the fact of membership. If he was a member, then it was his duty to abide by the by-laws of the association and the terms of the contract.

We have particularly examined the contract in view of the contention of the defendant that it was uncertain and void for the want of mutuality in its obligations.

By the terms of the agreement, complainant has agreed- to receive, handle and market the grain and other products delivered to it by the defendant for a definite period of time and to pay to the defendant the net proceeds of sales without any compensation. Defendant has agreed to deliver the grain and other products produced for him to the complainant for marketing for such period of time.

When the case of Milk Producers Marketing Co. v. Bell, supra, was before us in discussing the contract at page 233-234, we said:—“It is contended that the contract is not mutual; that the appellant in his contract agrees to do many things, but that the appellee does not agree to do anything. We do not think this is true. The contract specifically binds both parties for a period of two years. The appellant agrees to sell his milk and cream to appellee, and appellee agrees to market the milk and cream to the best advantage possible. In pursuance of that contract appellee has made preparations, at considerable expense, to handle the milk and cream of its various producers, and the bill alleges that it is now ready and willing to do so, but that the appellant has failed. A promise for a promise is a good consideration. Kissack v. Bourke, 224 Ill. 357.” In the instant case the complainant has made preparations at considerable expense to handle the products of the defendant and others and it is ready to carry out the terms of the agreement.

Mutuality of obligation means that both parties are bound or neither are bound. In other words there must be a valid consideration. Without a valid consideration, a contract cannot be enforced in law or in equity. What was said in Milk Producers Marketing Co. v. Bell, supra, quoted above, applies here.

In conclusion, since the complainant association was formed for the purpose of marketing the products of its members, it has only one way of obtaining such products, and that is by the members delivering their products in accordance with the terms of the marketing contract.

The function of the organization is limited to selling and handling the products of its members and it has provided facilities and made arrangements for this purpose. It is co-operative marketing that was provided for by the charter of complainant and adopted by its uniform contract and by-laws.

We think it is the purpose of the law to protect a member of the organization against one of its fellow members who violates his agreement. The contract in our opinion is legal and the defendant voluntarily became a party thereto, and should be held to comply with the terms and provisions thereof, and if he fails to do so, the complainant should be permitted to go into a court of equity in order that its members might be protected.

We conclude, therefore, that the chancellor erred in dismissing the bill and in dissolving the temporary injunction; that the order and decree should be reversed and case remanded with directions to the chancellor to vacate the order dismissing the bill and dissolving the injunction; and the circuit court of Kankakee county is directed to enter a decree in accordance with this opinion.

Reversed and remanded with directions.


author: Mr. Justice Boggs

text:
    The People of the State of Illinois ex rel. Drainage Commissioners of Union District No. 2 of the Towns of Momence and Ganeer, Illinois, Appellee, v. Chicago & Eastern Illinois Railway Company, Appellant.
    Gen. No. 8,219.

      Heard in this court at the May term, 1930.
    Opinion filed September 18, 1930.
    Hunter & Minor, for appellant.
    A. L. and C. M. Granger, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

A petition for a writ of mandamus was filed by appellee in the circuit court of Kankakee county, to compel appellant to remove a 36-inch pipe placed by it across its roadbed. Said petition in substance set forth that appellee was organized under the Farm Drainage Act, Cahill’s St. ch. 42, ¶ 120 et seq., to provide a system of drainage for some 2,200 acres of land, the outlet for which is a natural watercourse running from the northeast of the district in a southerly, then westerly, and then in a northwesterly direction to the-Kankakee River; that appellant operates a railway, running in practically a northerly and southerly direction, the right of way of which crosses said watercourse; that the system of drainage adopted by appellee consists of a tile, following the general direction of said watercourse, supplemented by an open ditch located substantially in said watercourse, which has been deepened, straightened and widened, but which carries no water not draining naturally in said watercourse; that appellee demanded of appellant that it remove said pipe or culvert and replace the same with a larger one at an appropriate elevation; that, while appellant insists that it alone should do said work, it failed and refused so to do, unless appellee pay the entire expense thereof. Said petition, as finally amended, prayed a writ to remove the present culvert and to replace the same with another at least 48 inches in diameter, with a flow line conforming to that of the open ditch, and avers that, as a result of the refusal of appellant to comply therewith, said system of drainage does not fulfil its purpose.

Appellant filed an answer which, in substance, denied the material allegations of said petition. A jury was waived and, on the trial before the court, the issues were found in favor of appellee and, upon amending the prayer of the petition, proffering to reimburse “the defendant the cost incident to said work of excavating, deepening and widening the said ditch through the embankment or. right of way of the defendant and below the natural surface of the ground,” the court ordered that a writ of mandamus issue, commanding appellant to grant the relief in substance set forth in the prayer of the petition as finally amended. To reverse said judgment, this appeal is prosecuted.

Prior to the hearing of this cause, a motion was made by appellee to transfer the same to the Supreme Court, on. the ground that a freehold was involved.. This motion was taken with the case. Without going into a detailed discussion thereof, we hold that, in the determination of the questions here to be decided, no freehold is involved. Road District v. Miller, 156 Ill. 221-223; Chicago, B. & Q. Ry. Co. v. People, 212 Ill. 103-109; People v. West Chicago St. R. Co., 203 Ill. 551, 553-556.

Counsel for appellant concedes in his brief and argument: “If the place where the pipe now is located is a natural watercourse ánd appellant has obstructed the same so as to retard the natural flow of the water, accelerated by improved methods, appellant would be required to remove such obstructions, and mandamus would be the proper remedy.” It is contended, however, “that appellant cannot be compelled to enlarge the alleged natural watercourse.” In this connection counsel insists that “the judgment required appellant to excavate and surrender part of its right of way, . . . and that appellant is not only entitled to damages for the land taken in enlarging the watercourse, but also damages that may be occasioned by the necessity of trussing its tracks, guarding the safety of trains, and the interruption of its business.”

In answer thereto, counsel for appellee insist that it is not seeking to enlarge the natural watercourse across appellant’s right of way, but that, by reason of the work done in said district to. carry the water from the lands of said district in its natural course, the culvert or pipe placed by appellant under its tracks is inadequate and, in effect, obstructs the flow.

In support of its contention, counsel for appellant cites Illinois Cent. R. Co. v. Commissioners of Highways, 161 Ill. 247; Cache River Drainage Dist. v. Chicago & E. I. R. Co., 264 Ill. 97, and Village of Bradley v. New York Cent. R. Co., 296 Ill. 383. Illinois Cent. R. Co. v. Commissioners of Highways, and Village of Bradley v. New York Cent. R. Co., involve questions of an entirely different character from those involved here. Neither has anything to do with the obstruction of a watercourse. In Cache River Drainage Dist. v. Chicago & E. I. R. Co., the Supreme Court at page 102 says:

“The public have an easement in the channel of Post creek, and appellant must keep the channel under said bridge of such size as to offer a passage for all waters that naturally flow, or have a tendency to flow, in and along such watercourse. This is a continuing and expanding obligation. This channel must be kept unobstructed, so as to serve as an outlet for all waters that naturally flow through said channel, even if such flow is accelerated by artificial means, in order to meet the reasonable requirements of property owners and the public as changed conditions and increased use may demand.”

There is no conflict between the position of appellee and the law as laid down in the latter case.

The testimony of some nine witnesses on the part of appellee is to the effect that, at the point within, said drainage district where appellant’s railroad crosses the same, there is a basin comprising some 460 acres, of which basin about 330 acres are on the east side of said railroad and 130 acres on the west side thereof; that when this basin is filled to overflowing, the waters therein flow in a well-defined current from east to west and pass out of said basin on the rim west of said right of way, thence in a natural watercourse which empties into the Kankakee Riven The engineer for - ¡ said district testified that the low point of the rim of said basin was to the west of the right of way of appellant.

The witnesses on the part of appellant testified with reference to the height of the rim at different points, both east and west of said railroad. While some of the points of the rim west of the railroad were higher than some points on the east, there is no proof tending to show that the waters from said basin flowed to the east, or that they flowed other than as testified to by appellee’s witnesses.

A jury having been waived, the finding of the trial court on the controverted facts is entitled to the same weight as the verdict of a jury. Moore v. Molloy Co., 222 Ill. App. 295-298. We therefore hold that, under the evidence as above set forth, we would not be warranted in disturbing the findings of the court on the facts.

It is also contended that, in order to maintain a petition for mandamus, a demand must have been served which is express and distinct in its terms, clearly designating the act required. While it is practically conceded that a demand was made that the present pipe or culvert be removed as an obstruction, and that such demand was sufficient so far as the matter of the removal is concerned, it is insisted that, as said demand was also to the effect that appellant widen and deepen its excavation under its right of way and replace the present pipe or culvert with one having a diameter of 48 inches, it was thereby rendered insufficient and unavailing.

Appellant did not question the sufficiency of the demand when made, but placed its refusal to comply on the ground that it should be reimbursed for the entire expense of replacing said 36-inch with a 48-inch pipe, and it is not now in a position to complain as to the form of the demand.

It is next insisted that the present pipe is sufficient; that the only testimony in regard thereto is that of appellee’s engineer and of an engineer on behalf of appellant, appellee’s engineer testifying that said pipe was not adequate and appellant’s engineer testifying that it was, and that therefore there was no preponderance of the evidence in favor of the finding of the court.

In order to set aside the court’s finding on questions of fact, we must hold that such finding is against the manifest weight of the evidence. In addition to the testimony of appellee’s engineer, the evidence on the part of several of the witnesses who testified for appellee tends to corroborate the testimony of appellee’s engineer to the effect that the existing pipe was not adequate. We would therefore not be warranted in disturbing the finding with reference to the adequacy of the existing pipe.

It is also contended by counsel for appellant that its property is being taken without due process, and that condemnation proceedings should have been had, to determine its damages. Counsel evidently loses sight of the fact that, according to the testimony of the witnesses, there was a natural watercourse existing where appellant afterward constructed its roadbed, and that appellant recognized the same by constructing an open waterway under said tracks, and thereafter, of its own motion, replaced the same with said 36-inch pipe. It is not for appellant to determine, as against persons owning lands in said drainage district, whether it has adequately provided a means for the flow of said waters. If not able to settle that question by agreement, it is one for the determination of the courts, when properly presented.

At common law, if a railroad or other highway crosses a natural watercourse or a public highway, such highway or railroad must be so constructed across the existing highway or waterway, and so maintained, as to subserve the demands of the public, not only as they exist at the time of crossing the .same, but for all future time. Chicago, B. & Q. Ry. Co. v. People, supra, 111.

“A railroad company, in constructing its road over watercourses, must make suitable bridges, culverts or other provision for carrying off the water effectually. (Engell on Watercourses—7 Ed.—sec. 465b.) The duty imposed by statute upon such company to restore the stream crossed to its former state, or to so restore it as not to impair its usefulness, exists also in the absence of express statutory requirement. (Pierce on Railroads, p. 203.) The same obligation in such case rests upon the corporation as rests upon a private owner who undertakes to interfere with the watercourse in the same way.” Ohio & Mississippi Ry. Co. v. Thillman, 143 Ill. 127-133; Chicago, B. & Q. Ry. Co. v. People, supra, 111.

In Kankakee & Seneca R. Co. v. Horan, 131 Ill. 288, the court, in speaking of the contention of the railroad that the court erred in refusing to give an instruction requested by it, at page 308 said:

“It, in substance, tells the jury that the appellant, when fixing the culvert for the passage of the water of the Parker slough, a natural watercourse, was only bound to so construct it that it was no obstruction to the water then flowing into it, but as to any increase of water caused by the drainage into it by people along the course of the slough the appellant would not be liable, though the culvert was not sufficient to admit of the passage of such water. We do not subscribe to this doctrine. The Parker slough was a watercourse, and it was the legal right of anyone along its line, for miles above the railroad, where the water naturally shed toward the slough, to drain into it, . . . It would seem legitimately to follow that the railroad company, in providing a passageway for the slough, was bound to anticipate and provide for any such legal increase of the water flow.”

“In Cleveland v. City Council of Augusta, 43 L. R. A. 638 (Ga.), this language is used: ‘At common law the rule is, that where a highway is made across another one already in use, the crossing must not only be made with as little injury as possible to the old way, but whatever structures may be necessary to the convenience and safety of the crossing must be erected and maintained by the person or corporation constructing and using the new way.’

“In the case of Lake Erie and Western R. Co. v. Cluggish, 143 Ind. 347 (42 N. E. Rep. 743), it is said: ‘The duty of a railroad company to restore a stream or highway which is crossed by the line of its road is a continuing duty; and if, by the increase of population or other causes, the crossing becomes inadequate to meet the new and altered conditions of the country, it is the duty of the railroad to make such alterations as will meet the present needs of the public.’ . . .

“In State of Indiana v. Lake Erie and Western R. Co., 83 Fed. Rep. 287, it is said: ‘If, by the growth of population or otherwise, the crossing has become inadequate to meet the present needs of the public, it is the duty of the railroad company to remedy the defect by restoring the crossing so that it will not unnecessarily impair the usefulness of the highway.’” Chicago, B. & Q. Ry. Co. v. People, supra, 112.

Under the foregoing authorities, appellant is clearly under obligation to remove the obstruction which the court has found to exist in said watercourse, and that at its own expense. When the trial court provided that appellee should reimburse appellant for the expense it may be put to in the matter of the deepening and widening of said channel under its road, it did all that appellant was entitled to under the law. Chicago, B, & Q. Ry. Co. v. People, 200 U. S. 561.

Some contention is made by appellant that the evidence discloses that the natural watercourse under its track is some 70 to 100 feet north of said 36-inch pipe, and that for that reason the court was not authorized to grant said writ. Appellant is in no position to raise this question, in view of the fact that it has itself maintained, either by an open trestle or the present 36-inch pipe, a passageway for the water in question at this point. Even if that were not true, there is nothing in the evidence which makes the particular point where said water crosses under said right of way so important as to make a few feet one way or the other a determining matter.

It is also contended that the court erred in requiring appellant to deepen and broaden the watercourse under its tracks before it had been paid for. Inasmuch as the amount of such expense is unliquidated, and inasmuch as the drainage district is a quasi-municipal body, having’ the power to raise the necessary funds for carrying on the ■ work of its district, appellant would seem to have ample security that .it will be reimbursed therefor. The court retained jurisdiction of the cause, among other things, for that very purpose.

Some question seems also to have been made by appellant as to the court requiring it to do said work, instead of appellee district. Taking the whole record into consideration, it clearly appears that, if this work is to be done, appellant would prefer to do the same, and that it is not really objecting on that account. This question is not entitled to any serious consideration.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed.


author: Mb. Pbesiding Justice Boggs

text:
    Eugene Bolle, Appellee, v. Chicago & Northwestern Railway Company, Appellant.
    Gen. No. 8,145.

      Heard in this court at the October term, 1929.
    Modified opinon filed September 23, 1930.
    Rehearing denied September 23, 1930.

      Nelson J. Wilcox and I. C. Belden, for appellant.
    Ryan & Rosenthal and Paul MacGuffin, for appellee; Joseph D. Ryan, of counsel.
   Mb. Pbesiding Justice Boggs

delivered the opinion of the court.

Appellee instituted an action on the case in the circuit court of Lake county against appellant, to recover damages under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, ¶ 321 et seq., for an injury alleged to have been sustained by him.

The declaration consisted of three original and one additional count. The third original count seems to have been withdrawn. The first count, among other things, charges that appellant and appellee were both engaged in interstate commerce; that appellee had been hired to work as a fireman of a stationary boiler used to heat the passenger depot and certain other buildings; that on December 4,1925, the boiler was out of repair and a locomotive was substituted, which appellee fired, and was ordered to accompany such locomotive to Beach where it would be supplied with coal and water; that it was coupled to three other engines, in which were experienced employees; that appellee accompanied said engine to Beach and fired the same en route; that after the arrival at Beach, appellee got on the tender of the heater engine and adjusted the coal slide for the purpose of filling the tender with coal; that while coal was being emptied into the tender “he was in an obviously dangerous and exposed position in the event that the engines should be moved, to the knowledge of the other employees, who, disregarding their duty, negligently and without notice or warning to plaintiff, moved the engines with a sudden and violent jerk, and plaintiff was caught and crushed between the coal slide and the cab of the engine.”

The second count charges among other things that, while standing on the tender of said engine and in an obviously dangerous position, which was known or could have been known to the other employees of appellant, said engine was moved without ringing any bell, contrary to the rules of appellant. The additional count charges that appellee, in the due course of his employment, got on the tender and took coal and water, and, while doing so, appellant negligently and without notice or warning moved the engine with a sudden jerk and appellee was caught and crushed, etc.

To said declaration appellant filed a plea of the general issue, with notice of the special defenses of contributory negligence and assumed risk on the part of appellee.

A judgment for $20,000 was recovered and, on appeal to this court, said judgment was reversed and the cause was ordered remanded. Thereupon appellee filed an affidavit to the effect that, upon another trial, he could offer no additional evidence to support his contention that he was engaged in interstate employment, and on his motion the remanding order was stricken. (Bolle v. Chicago & N. W. Ry. Co., 235 Ill. App. 380.)

The Supreme Court reversed and remanded the cause with directions that this court either affirm the judgment or reverse it and remand the cause. (Bolle v. Chicago & N. W. Ry. Co., 324 Ill. 479.) Thereupon an order was entered remanding the cause. (Bolle v. Chicago & N. W. Ry. Co., 246 Ill. App. 31.) On the second trial, the evidence was excluded and a verdict was directed in favor of appellant. On appeal to this court, we held that the court erred in directing a verdict, and reversed and remanded the cause. (Bolle v. Chicago & N. W. Ry. Co., 251 Ill. App. 623.) Said cause was again tried, resulting in a verdict and judgment in favor of appellee for $37,500. To reverse said judgment, appellant prosecutes this appeal.

It is first contended that the court erred in refusing to direct a verdict in favor of appellant, on motions made at the close of appellee’s evidence and again at the close of all the evidence, for the reason: First, that there is no evidence in' the record fairly tending to prove that at the time of appellee’s injury he was engaged in interstate commerce; second, that the evidence in the record does not fairly tend to support the allegation of negligence on the part of appellant.

' Counsel for appellant while conceding in effect that the Supreme Court and this court have heretofore passed on the first proposition adversely to it, contend that such holding is not supported by the authorities and insist that the question of whether an employee is engaged in interstate commerce, is one of law for the court. It has frequently been held that such question may become one of fact, for the determination of a jury. Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146-153; North Carolina R. Co. v. Zachary, 232 U. S. 248; Southern Ry. Co. v. Lloyd, 239 U. S. 496-501; Pennsylvania Co. v. Donat, 239 U. S. 50-52. As to the first proposition; the court did not err in its ruling.

On the question of negligence, appellant’s motion to direct a verdict at the close of all the evidence raised the legal question as to whether there is any evidence in the record which, with its reasonable intendments and inferences, fairly tends to prove the averments of the declaration. Chicago City Ry. Co. v. Martensen, 198 Ill. 511-513; Chicago City R. Co. v. Loomis, 201 Ill. 118-119; Mahlstedt v. Ideal Lighting Co., 271 Ill. 154-163; Peters v. Chicago Rys. Co., 307 Ill. 202-205. So tested, we hold that the court did not err in its ruling.

It is also insisted that, even though it be held that the question as to whether appellee was engaged in interstate commerce was one of fact, the finding of the jury that he was so engaged is against the manifest weight of the evidence. The employment and duties of appellee prior to and at the time of his injury are so fully and clearly set forth in the opinion of the Supreme Court that we here adopt the same:

“On November 15, 1925, plaintiff was employed by defendant in Waukegan.. His duties consisted of watching engines in the roundhouse, sanding them, turning turntables, and other duties in the roundhouse with reference to engines engaged in both interstate and intrastate commerce. He also fired the stationary boiler, or the locomotive engine which was substituted when the boiler was out of service, which supplied heat to the defendant’s passenger depot, baggage room in depot, coach yard pipes, roundhouse foreman’s office, engineers’ and firemen’s register and locker room, engineers’ and firemen’s bunkhouse, bridge and building maintenance bunk-car, bridge and building carpenter foreman’s office and shop, and signalmen’s maintenance-of-way car. The bridge and building car was used as living quarters by employees of defendant who were engaged in the service of repairing bridges and buildings. The heating plant in. question which heated this bridge and building car also conveyed heat or steam through the yard pipes which were used to heat passenger coaches. These yard pipes could be used to heat the cars in any train if necessity required it. The signal maintenance-of-way car was used by the signalmen for keeping their supplies used in the maintenance-of-way department. These latter employees were engaged in taking care of all signaling devices in their territory. Whenever it got cold at night heat was supplied to these men where they were kept and housed. On December 4, 1922, this stationary boiler was temporarily out of repair and plaintiff was firing the locomotive engine which supplied heat to the various buildings. He went to work about four o’clock in the afternoon and about nine o’clock in the evening he was directed to accompany his engine to Beach, in defendant’s yards, about four miles north of Waukegan station, for coal and water. The engine and tender were thereupon attached to three other engines which had been engaged in interstate commerce and were then being prepared for interstate trips, and the four engines, being so coupled together, were propelled northward by the most northerly engine, which was immediately north of the engine upon which plaintiff was riding. The four engines so coupled together arrived at Beach and the engine of plaintiff took water, but before the tank was completely filled the engines were moved north to a sidetrack in order to permit an interstate train to pass. The engines remained on the sidetrack only a few minutes, and then started back to the water tank and coal chutes, the motive power at that time being furnished by the most southerly engine. The engines stopped and the engine farthest south was supplied with coal. Again the four engines moved southward, the most southerly engine furnishing the power, and the second engine toward the south, and also the third one, upon which was plaintiff, were placed opposite the coal chutes. While engaged in taking coal the engine immediately north of plaintiff without notice or warning moved northward suddenly and plaintiff’s leg was crushed between the cab of his engine and the coal chute, and as a result it became necessary to amputate his right leg above the knee.” Bolle v. Chicago & N. W. Ry. Co., supra, 480.

It is not contended by counsel for appellant that the facts are not as above stated, but that, on the facts the finding that appellee was engaged in interstate commerce is not warranted by the evidence.

Where reasonable minds would draw different inferences from circumstances shown without contradiction, a question for the jury is raised. Bolle v. Chicago & N. W. Ry. Co., 324 Ill. supra, 482; Brown v. Illinois Terminal Co., 319 Ill. 326; Frank v. Hoskins Co., 323 Ill. 46-47. In Bolle v. Chicago & N. W. Ry. Co., supra, the court at page 482 says:

“Whenever an issue is made in a case, and evidence must be introduced to maintain the issue, controverted questions of fact are involved, which include not only evidentiary facts but ultimate facts, even though there be no conflict in the testimony, or the evidence may be agreed upon or embodied in a stipulation of fact.” Citing Chicago Title & Trust Co. v. Ward, 319 Ill. 201; Frank v. Hoskins Co., 323 Ill. 46.

The question then for our determination is as to whether the finding of the jury on the facts stated is against the manifest weight of the evidence. The Supreme Court held that this was a question of fact, to be determined by the jury, and said (p. 482): “The evidence in the case was not such that all reasonable minds must necessarily agree that at the time of the accident plaintiff’s employment was not such as to bring him within the provisions of the Federal Employers’ Liability Act.” It will be observed that appellee’s general duties consisted of “watching engines in the roundhouse with reference to engines engaged in both interstate and intrastate commerce. He also fired the stationary boiler or the locomotive engine which was substituted when the boiler was out of service, which supplied heat to defendant’s passenger depot, baggage room in the depot, coach yard pipes, roundhouse foreman’s office, engineers’ and firemen’s register and locker rooms, etq. ’ ’

While ordinarily the stationary engine was used in such heating operations, it frequently happened that a locomotive engine was used instead thereof. Such engine was being used on the day appellee was injured, and he had been ordered by Terasky, whom the evidence shows he was directed to take orders from, to accompany said engine to Beach for the purpose of supplying the same with coal and water. It was on this trip that he received his injuries. Appellee was then engaged in a work so closely connected with his duties in operating said heating plant as to be a part of the same. In Chicago & Alton R. Co. v. Industrial Commission, 288 Ill. 603, the court at page 611 says:

“A railroad servant killed by a passing train while shoveling snow on a railroad company’s premises between a platform and the tracks, used indiscriminately for interstate and intrastate commerce, was then employed in interstate commerce. (New York Central Railroad Co. v. Porter, 39 Sup. Ct. 188.) ”

In Dickinson v. Illinois Industrial Board, 280 Ill. 342, the court at page 344 says:

“If his (the employee’s) work constitutes a real and substantial part of the interstate commerce which the carrier is engaged in, the employee is engaged in interstate commerce; otherwise not. (Illinois Cent. R. Co. v. Behrens, 233 U. S. 473; Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146; Chicago, R. I. & P. Ry. Co. v. Industrial Board, 273 Ill. 528.) His employment need not be directly in the transportation of goods from one State into another or in the operation or movement of trains. If he is engaged in the operation, maintenance or repair of any of the instrumentalities used by the carrier in the transportation of goods from one State into another he is engaged in interstate commerce. Section men repairing a track, carpenters repairing a bridge, machinists and car repairers working on engines and cars, and hostlers caring for engines, are engaged in interstate commerce if the track, bridge, engines and cars' are used in interstate commerce. Their work has a direct and substantial connection with interstate transportation and is an essential part of it. ’ ’

In Pedersen v. Delaware, L. & W. R. R. Co., supra, the court at page 152 says:

“The point is made that the plaintiff was not at the time of his injury, engaged in removing the old girder and inserting the new one, but was merely carrying to the place where that work was to be done some of the materials to be used therein. We think there is no merit in this. It was necessary to the repair of the bridge that the materials be at hand, and the act of taking them there was a part of that work. In other words, it was a minor task which was essentially a part of the larger one, as is the case when an engineer takes his engine from the roundhouse to the track on which are the cars he is to haul in interstate commerce.”

In view of the foregoing authorities, we hold that the verdict of the jury finding that appellee was engaged in interstate commerce at the time of his injury, was supported by the evidence.

It is also insisted that the verdict finding appellant guilty of negligence is against the. manifest weight of the evidence.

Appellee testified that on the day in question he was ordered by Terasky to accompany the engine used in the heating operations to Beach for the purpose of supplying the same with coal and water; that he did so, and on arriving at the water tank, “Terasky hollered at me to get up and take water. ... In response to that direction I got up and took water”; that while so engaged he was directed by McManaman, who is shown to have been in charge of the trip, to throw the spout aside, as the engines had to be moved to a siding to let a train through; that the engines were then moved to the coal chute; that he was watching the engine to the south of him and saw a man on that engine let down the chute; that thereupon he lowered the chute for the purpose of coaling his engine and, without the ringing of a bell or other warning to him, said engines were moved and he was caught and crushed between said chute and the cab of his engine.

While the men in charge of the other engines all testified that they did not see appellee at the time in question, McManaman testified: “Just before the accident happened, the coal chute man left some coal down to the second engine from the south; then he released the slide and it went up. Then I discovered that there was a man up on top of the third engine from the south. After the coal chute man put up his slide, I heard him tell the operator of the engine Kucera was on, the second engine from the south, to back up. I knew he (the man on the third engine) was up there because he had the coal chute down. ... I had time, after I discovered him there and after his order was given, to do something. I did not do anything. I didn’t think they would do anything while that man was there.”

Appellee, according to his testimony, had been ordered on his engine for the purpose of watering the same. McManaman knew that appellee had been on said engine, as he had ordered him to throw aside the spout when the engines were being moved to the siding. The foregoing facts, in connection with the known inexperience of appellee, warranted the jury in finding that appellant was negligence in the operation of said engines, and that such negligence was the proximate cause of appellee’s injury.

It may also be observed that it has frequently been held that, where on practically the same facts two juries have returned similar verdicts, which have been approved by the trial judge, courts of review will be extremely reluctant to interfere with the same. Wood v. Hildreth, 73 Ill. 525-526; Nevius v. Gourley, 97 Ill. 365-370; Upthegrove v. Chicago G. W. R. Co., 168 Ill. App. 89-91; Gill v. Gill, 197 Ill. App. 211-213.

It is the contention of appellant that because the work of coaling said engines was controlled by the men at the chute, appellant was not liable for their negligence. What we have already said sufficiently disposes of this contention.

It is also insisted by appellant that appellee assumed the risk of his employment, and that by reason thereof he cannot recover. The defense of assumed risk is an affirmative defense, and the burden of proving such defense was on appellant. Seaboard Air Line Railway v. Moore, 228 U. S. 433; Central Vermont Ry. Co. v. White, 238 U. S. 507; Fisher v. Chicago, R. I. & P. R. Co., 290 Ill. 49-56. The testimony on the part of appellee is to the effect that no warning, by the ringing of a bell or otherwise, was given prior to the movement of the engine which resulted in his injury. The evidence on the part of appellant was to the effect that the bell was rung. It was therefore a question for the jury as to whether said bell was rung or other warning given. If no warning was given, the jury were warranted in finding that appellant was negligent as charged.

Appellee was inexperienced, and that fact was known to his foreman, who had given him orders to accompany his engine for the taking of coal and water. The evidence also warranted the jury in finding that appellee’s position on said engine, just prior to its being moved, was known, or by the exercise of ordinary care, would have been known to those in charge.

In Waiswila v. Illinois Cent. R. Co., 220 Ill. App. 113, the court at page 118 said:

“The important questions of fact as to the existence of a custom to ring the bell of an engine before starting, and the violation of this custom upon the particular instance in question, were properly submitted to the jury. . . . Failure of the master to give the customary warning to his servant when in a position of danger is negligence. Sturm v. Consolidated Coal Co., 248 III. 20; Doering v. Peoria & P. Union Ry. Co., 196 Ill. App. 129; Chicago, R. I. & P. Ry. Co. v. Rathneau, 225 Ill. 278; Pennsylvania Co. v. Stoelke, 104 Ill. 201. Failure to give warning under somewhat similar circumstances has been held to be negligence under the Federal Employers’ Liability Act. Central R. Co. of New Jersey v. Colasurdo, 192 Fed. 901; Evans v. Detroit, G. H. & M. R. Co., 181 Mich. 413; Bombolis v. Minneapolis & St. L. R. Co., 128 Minn. 112. . . .

“We cannot assent to the contention that Waiswila assumed the risk. It is undoubtedly true that work of this kind is dangerous and that he assumed the risks of the extraordinary dangers incident to this kind of work (Boldt v. Pennsylvania R. Co., 245 U. S. 441, 19 N. C. C. A. 461), but he did not assume the risk of an unexpected negligent departure from the customary method of doing this dangerous work. The correct distinction is stated in Chesapeake & O. Ry. Co. v. Proffitt, 241 U. S. 462, as follows:

“ ‘Even if plaintiff knew and assumed the risks of an inherently dangerous method of doing the work, he did not assume the increased risk attributable not to the method but to negligence in pursuing it.’

“To the same effect are Devine v. Chicago, R. I. & P. Ry. Co., 266 Ill. 248, affirmed in 239 U. S. 52; Lancette v. Great Northern Ry. Co., 140 Minn. 488; Kenney v. Seaboard Air Line Ry. Co., 165 N. C. 99, affirmed in 240 U. S. 489; Chesapeake & O. Ry. Co. v. De Atley, 241 U. S. 310; Bassham v. Chicago, I. & L. Ry. Co., 214 Ill. App. 74. These were cases under the Federal Employers’ Liability Act.”

Appellant’s Buie 30 provided: “The engine bell must be rung when the engine is about to move, and while approaching and passing public crossings at grade. ’ ’

Under the foregoing authorities, the jury were warranted in finding against appellant under its plea of assumed risk.

It is also insisted that appellee was negligent, and that his negligence was the sole cause of his injury. Even if it be conceded that appellee was negligent, he would not be barred of a right of recovery thereby unless it can be said that his negligence was the sole cause of Ms injury. We hold that the verdict of the jury on that question was not against the manifest weight of the evidence.

It is next insisted that the court erred in admitting in evidence rules 7 and 30 of appellant company, wMch are as follows:

“7. Definitions. Train. An engine or motor or more than one engine or motor coupled with or without cars displaying markers.

“30. The engine bell must be rung when the engine is about to move and while approaching and passing public crossings at grade.” It is urged that these rules were not applicable to the situation here involved. This point is not well taken, and the court did not err in admitting said rules.

Other objections were urged to the rulings of the court on the evidence. We have searched the record in connection with the grounds urged against such rulings. While some of them were subject to criticism, no substantial error was committed, and we would not be warranted in reversing the judgment for the rulings on the evidence.

It is next insisted that the court erred in giving the fourteenth, fifteenth and twenty-fourth instructions given on behalf of appellee. The complaint as to instruction 14 is in reference to the language therein: “or in work so closely related to such commerce as to be practically a part of it,” and in instruction 15 to the words: “ or in work so closely related to it as to be substantially a part of such commerce.” The complaint as to instruction 24 is as to the words: “engaged in performing a service for the defendant which was reasonably necessary in aid and furtherance of interstate commerce and so closely related thereto as to be substantially or practically a part of such commerce.”

The court did not err in giving these instructions. Chicago & Alton R. Co. v. Industrial Commission, 288 Ill. 603, 608-610; New York C. & H. R. R. Co. v. Carr, 238 U. S. 260-264; Industrial Accident Comm. v. Davis, 259 U. S. 182-187; Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556. It might also be observed that given instructions 15 and 71 on behalf of appellant contain language of the same character.

Appellant also complains.of the court’s refusal to give 18 instructions tendered by it. Appellant submitted 46 instructions, 19 of which were given. Many of said refused instructions were abstract in form, many were argumentative, and many of them did not state correct principles of law. So far as correct principles were stated in the refused instructions, they were contained in appellant’s given instructions. The instructions given on behalf of appellant submitted to the jury its case in as favorable a light as the record warranted.

Where a party offers two or more instructions, embodying the same proposition in varying language, he will not be heard to complain because the court refused the one the party considers the most important, where the others are given. City of Evanston v. Richards, 224 Ill. 44A-448; Clifford v. Pioneer Fire-Proofing Co., 232 Ill. 150-157; Swalm v. City of Joliet, 219 Ill. App. 123-128; Paden v. Rockford Palace Furniture Co., 220 Ill. App. 534-545.

It is next insisted that counsel for appellee in his opening argument misstated the testimony of the witness McManaman. This he concedes, but states that it was innocently done. The statement complained of was that McManaman testified that “the engines were moved suddenly toward the north, without bell or warning.” This was objected to by Mr. Wilcox, representing appellant, who stated: “The foreman, MeManaman, did not testify that the movement was made without the ringing of the bell.” The court stated: “I don’t remember that he did.” Thereupon, counsel for appellee stated: “Well, I remember he did. I positively remember that he did. He was asked if the bell was rung or any warning given, and he said no. ’ ’ The court: “If that is your recollection — ” Mr. Ryan: “It is not only my recollection, but it is the evidence in the case. I am not responsible for counsel’s lack of memory. I will trust to the recollection of you men of the jury, and I reiterate that McManaman positively testified that he heard no bell rung.” This statement was objected to, and the objection was overruled by the court.

While counsel for appellee should have been more careful in the statement of his recollection of the testimony, we would not be warranted in reversing the judgment on account of such remarks, for the reason as stated, counsel for appellee was merely stating his recollection of the testimony, and it is finally for the jury to say what has been testified to, as well as the weight to be given the same. The court therefore did not err in refusing to grant a new trial on account of the remarks of counsel.

Lastly it is insisted that the verdict of the jury is excessive.

The injuries to appelleé are concededly serious. At the time of the accident appellee was 22 years of age. He left school while in the seventh grade, and had never held a clerical position of any kind. While in the employ of appellant he received $130 per month. Following his injury he was taken to a hospital and an attempt was made to set his leg. About two weeks thereafter the leg was amputated about 10 inches below the hip bone. Subsequently some 25 to 30 lancing operations were performed, and for several months appellee suffered severe pain. Some five months after the accident the leg become swollen and the stub was again lanced. Thereafter a second operation was performed, which left a stump of about five or five and one-half inches. The testimony tends to show that appellee has never been able to wear an artificial limb. Since the injury he has been able to earn from $12 to $17.50 per week. He was in good health before the injury, weighing about 185 pounds. Since the accident he has lost weight and his general health has not been good.

“In this character of case the damages are for the determination of the jury, and unless we are able to say that the verdict is so excessive as to indicate that the jury were moved by prejudice or passion, we would not be warranted in reversing the judgment on the ground that the verdict is excessive. Posch v. Chicago Rys. Co., 221 Ill. App. 241-255; Kavale v. Morton Salt Co., 242 Ill. App. 205-215; Dunn v. Chicago, R. I. & P. Ry. Co., 248 Ill. App. 26-33; Maskaliunas v. Chicago & W. I. R. Co., 235 Ill. App. 198-221.” This we are unable to do.

In connection with the argument that the verdict of the jury was excessive, counsel for appellant insist that the court erred in giving appellee’s instruction No'. 35. This instruction, among other things, states:

“The court instructs the jury that ... in assessing the plaintiff’s damages, if any, the jury should take into consideration . . . any loss of health or strength, if any, which the jury may believe from the evidence the plaintiff has sustained or will sustain as a direct result and consequence of such injury, if any; also the value of the plaintiff’s time lost, if any, by reason of such injury, and his ability, if any, to work and earn money in the future, so far as any of the above-mentioned elements of damages, if any, have been charged in the plaintiff’s declaration and shown by a preponderance of the evidence.”

It is first insisted that the court erred in telling the jury that they might assess damages to plaintiff for any “loss of health or strength,, so far as shown by the evidence.” While it is conceded that appellee testified that the condition of his health had not been good since the accident, it is insisted that he was not corroborated by the other evidence. The weight of the evidence was for the jury, and this point is not well taken.

It is also contended that said instruction was erroneous in failing to limit the loss of future earnings to their present value. Instruction No. 32, given on behalf of appellant, is as follows:

“If you should come to the assessment of damages in this case, you can only allow plaintiff on account of loss of earning power, the present cash value of such loss of earning power.”

The instructions are to he taken as a series. Appellee’s instruction No. 35 did not direct a verdict, and, taken in connection with appellant’s instruction 32, correctly informed the jury that the future earnings of appellee must be determined on their present cash value. This holding is supported by the decision in Louisville & N. R. Co. v. Holloway, 246 U. S. 525. We would not he warranted in reversing the judgment for the giving of said instruction.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed.