author: Pillsbuby, J.

text:
    The Niagara Fire Insurance Company v. Elias J. Brown.

      Fire Insurance—Stipulation—Waiver by Local Agent—Estoppel.

    In an action on a policy of insurance issued upon a stock of goods, it is held: That the stipulation signed by the agent of the defendant and attached to the policy by him, regarding the proper and safe keeping of books of purchases and sales and inventories, might be waived by him; that the evidence sustains the finding of the court below that it was so waived; and that the defendant is estopped to claim a forfeiture for the failure of the plaintiff to comply with its conditions.
    [Opinion filed October 5, 1887.]
    Appeal from the Circuit Court of Franklin County; the Hon. David J. Baker, Judge, presiding.
    In August, 1886, the appellant, by its agent at Benton, Illinois, issued to the appellee its policy of insurance upon his stock of goods in the sum of §1,450, and upon the store fixtures and furniture the sum of §50. On the night of November 8, 1886, the store was burned, together with its contents, and the appellant refusing to pay the loss, this action was brought to recover upon the policy. The defense interposed is that the insured did not comply with the stipulation attached to the policy by the agent of the company and signed by him regarding the proper and safe keeping of books of purchases, sales, inventories, etc., but allowed them to be consumed in the fire that burned the building. The stipulation so far as relied upon is as follows:
    “ It is a part of the consideration of this insurance, and it is expressly warranted, that the assured above named.shall take an inventory of the stock above described at least once a year, and shall also keep books of account, in detail, showing all the purchases and sales of the same, and shall keep all inventories and books in a fire-proof safe, or other place secure from fire in said store, during the hours said store is closed for business, or this policy shall he void.”
    The appellee did not keep his books in such safe but the same were’ burned in the store.
    In answer to this defense it is asserted that it was never the intention of the parties that this stipulation should be regarded or complied with and was therefore waived. Upon a trial before the court, a jury being waived, judgment went for the plaintiff below and the company appealed.
    Messrs. William S. Cantrall and Thomas Bates, for appellant.
    Mr. F. M. Youngblood, for appellee.
   Pillsbuby, J.

There was an intimation, rather than a direct charge, made upon the argument that appellee was responsible for the fire that destroyed his property, but upon examining the evidence we do not discover any foundation for it. While it is true that he was absent at the time of the fire, such absence is fully accounted for, as he was called to Benton to answer an attachment against him for contempt of court. The only point relied upon in the argument for a reversal of the judgment, is that the failure to keep his books in a fireproof safe or other secure place according to the condition of the policy avoids it. To this point the appellee replies that it was not expected or intended that such condition should be complied with, and that its fulfillment was waived by the agent of the appellant. It appears from the evidence that one J. F. Mason, the agent of appellant at Benton, called at the store of the appellee and solicited him to renew his insurance upon his goods, his policy in the same company for 82,500 for the preceding year having expired.

In the preceding policy there was no stipulation of the character here involved.' Appellee informed Mason that he would carry his own risk in the future, but upon further persuasion he consented to take a policy for 81,500, and the one in question was written in pursuance of such arrangement.

When this policy was delivered to appellee there was attached to the margin by a common brass pin, a printed slip, containing what was called a three-fourths value clause and also the stipulation in question referring to the safe keeping of invoices, books, etc., which slip was signed by Mason alone as the agent of the company." Detaching this slip by withdrawing the pin would still leave the policy complete upon its face, and of the same character used in the preceding year in insuring the stock of goods in the same store. This slip being alone signed and attached by Mason in the manner stated, we have no doubt of his authority to detach it or withdraw it entirely, if he should so desire.

Whatever may have been liis private instructions from the company regarding the attaching slips containing such stipulations to policies upon goods in country stores, it will not be disputed, that if ho had delivered the policy to appellee without such, the underwriter could not have successfully defended the action because it was not attached as ordered.

If the agent had the power to bind the company by detaching it entirely, we think he could waive the performance of it and still leave it physically pinned to the policy, at least as he alone signed and attached it, and the policy made out and delivered by him without it would be valid. The apparent authority was such, that if he waived the performance of its conditions or gave the assured to understand that it would not be insisted upon and then took the premium and delivered the policy, the appellant would be estopped to claim a forfeiture upon the ground that the stipulation had not been complied with.

We have then only to inquire whether there is sufficient evidence in the record to uphold the finding of the court below; that a literal compliance with the stipulation did not forfeit the policy, as no questions of law arise upon the record for our consideration.

The only witnesses testifying upon this branch of the case are the plaintiff below and the agent, Mason.

He, the plaintiff, states that he told Mason he could not comply with the terms contained upon the slip; that he had no fire-proof safe, and that there were none in Mulkey Town, where the store was located, and that he was informed by Mason that it was not required in country stores. He says he is not sure that this talk took place at the time or before the policy was taken out. Mason admits that this conversation about the safe occurred, but thinks it was when the first policy was taken out about a year before, when Brown told him he had no safe and he then told him that would not make any difference. lie further says at the time he issued this policy he did not see any fire-proof safe, and thinks there was nothing said about it as they had talked about it before and he supposed Brown understood it. He thinks, however, that in the talk he had with Brown he told him how unsafe it was to leave books, etc., in the house to be consumed by the same fire that destroyed the building:—that when a man had no safe he had better take those things home with his bills.

He is evidently mistaken as to the time when this conversation took place, as at the time the first policy was issued the appellant had not adopted any such clauses to be attached to or put in its policies as those contained on this attached slip; neither did the policy then issued contain any such.

It is more reasonable to suppose that it occurred as stated by Brown, as the first knowledge he had of such requirements was when he first saw-the policy and the attached conditions.

They would scarcely be talking about the necessity of keeping a fire-proof safe in which to keep the boobs or of taking them to the residence of the assured, when the insurer had not required any such action by the insured.

It further appears that Mason, the agent, went to Mulkey Town on the Saturday preceding the fire to insure another party, and in consequence of some things that had been said to him about this risk, he made it an object to go and look at the goods, examine the risk and and see if there was anything wrong about it, or, as he expresses it, “ it was my particular object to see if all.was right.” He says that at this time the stock of goods was estimated by him to be worth as much as when the policy was issued, about §2,500.

At this time he knew that Brown had no safe in which to beep his books, invoices, etc., but although he went to Brown’s store for the express purpose of seeing if everything was all right about the risk, he seems to be fully satisfied that it was, from the fact that the stock insured had not depreciated in value, but far exceeded the amount of the insurance. If he had not waived the stipulation now insisted upon and he had considered the literal performance of it by the assured as material to the risk, it seems strange, indeed, that he had not inquired of Brown, who was then there, what care he took of the books, etc. It seems from such action that in this regard he only considered this stipulation material as furnishing the means of determining the amount of goods on hand at any given time, and having ascertained from personal inspection that the value of the goods so far exceeded the amount of the policy that no temptation could arise for Brown to destroy them, neither he nor his company had any further interest in such condition or stipulation. At this time, so far as appears from the record, he could easily have ascertained whether any of the material representations, conditions, warranties or stipulations contained in the policy were being violated by the assured, and when it is considered that he went to Brown’s store for the purpose of ascertaining the present condition of the risk, and the action of the appellant through its agent in determining for itself the value of the goods in the store, we are not prepared to say that the court erred in holding that the ground of forfeiture of the policy now insisted upon was waived and the insurer liable.

The proof is amply sufficient to show that the goods destroyed so far exceeded the amount named in the policy that the plaintiff can not avail ’tself of the clause requiring it to pay only three-foürths of the value, and indeed, it is not contended that the testimony does so show, but because the value is not ascertained in the manner provided for, the insurer resists the claim.

So far as we can see the loss was an honest one and far exceeding the amount necessary to require the company to pay the face of the policy, and the court below having settled the facts in favor of the appellee upon evidence sufficient to sustain the finding, we affirm the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Green, P. J.

license: Public Domain

text:
    Victoria Stewart v. School Directors.

      Public Schools—Special Contract to Teach—Evidence—Practice.

    In an action by a teacher upon an alleged special contract to teach for one month after the expiration of her regular term, it is held: That the evidence sustains the verdict of the jury for defendant; and that there was no error in permitting the jury to pass upon the evidence and return a verdict without leaving the court room, after a refusal of the court to pass upon a demurrer to the plaintiff’s evidence.
    [Opinion filed October 5, 1887.]
    If error to the Circuit Court of Jasper County; the Hon. William C. Jobes, Judge, presiding.
    Messrs. Honey & Halley, for plaintiff in error.
    Mr. George W. Fithian, for defendants in error.
   Green, P. J.

Plaintiff in error brought suit before a Justice of the Peace, to recover for services as teacher in said school district. A judgment for her was rendered in that court from which the Board of Directors appealed to the Circuit Court, where a trial was had, resulting in a verdict and judgment for defendant, to reverse which this writ of error was sued out. Plaintiff taught school in said district four months and two days, commencing in October, 1885. She was paid in full for four months’ services, but claims the right to recover salary for one more month, upon the ground said Board of Directors, by special contract, employed her to teach for five months and wrongfully discharged her before that term, expired.

The only contract between the parties was made at a special meeting of said Board, held August 4, 1885, the proceedings of w'hich special meeting were read on behalf of plaintiff as follows:

“ August 4, 1885.
“ At a special meeting of the Directors, Victoria Stewart was hired to teach four months’ school at §25 per month, to commence on the last Monday in September, or the first Monday in October, 1885, as the Directors shall hereafter decide.
“ IN". S. Claek, clerk.”

In addition to this, plaintiff testified that at said special meeting the Directors employed her to teach a four months’ school, and promised to give • her a fifth month if she gave satisfaction. Two other witnesses also present at said special meeting, testified substantially as she did. Towland, one of the Directors, testified, “ at that meeting we employed her for four months at §25 per month. After the business of the meeting was transacted and the Board had adjourned, Miss Stewart said something about a fifth month, and I said, if she gave general satisfaction, we would give her a fifth month, but the other two Directors did not say anything.” “We only hired her to teach a four months’ school.” Moah Clark, another Director, testified he made the minutes of that meeting, and that the record read in evidence was a correct record of the proceedings. The whole of this evidence was introduced on behalf of plaintiff and comprises the substance of all that transpired at that special meeting touching her employment to teach. Even taking her own version, corroborated by the two witnesses whose recollection agreed with hers, and the fact is not thereby established that a specific contract was made with her by the Board to teach a term of five months, and taking all the evidence together, the jury could properly find that plaintiff was employed to teach for a term of four months only. It also appears by the evidence, that on the night of the last day of the four months’ term, Towland, one of the Directors, told her that the two other Directors were opposed to her having a fifth month’s school, and as he was alone he could not do anything. With this notification she could have no excuse for misunderstanding when her term to teach expired, and if she chose to teach for two days thereafter without the consent, and, so far as tjie record discloses, without the knowledge of the Directors, she did so without authority and can not legally demand pay therefor; nor was she wrongfully discharged by the Board; her term of employment having expired, the Board had the. right to employ another teacher, and demand and take from her the keys and register, to be given to her successor.

The defendant offered no evidence on its behalf, and it is assigned for error that the court failed and refused to pass upon a demurrer to the evidence interposed by counsel for defendant when plaintiff had rested, but permitted the jury to consider the evidence introduced and permitted the jury to find and return a verdict without leaving the court room. We perceive no error in this, or in giving the instruction to the jury given on behalf of defendant. School Directors v. Jennings, 10 Ill. App. 643.

The loose talk between plaintiff and Director Tow!and and between her and Director Clark, had a week or two before the expiration of the four months’ term concerning her continuing to teach a fifth month did not change her contract with the Board, and she having failed to prove such contract of employment to have been for a longer term than four months, and having been paid in full for teaching that term, had no right to recover in this suit. The jury so found, and the court rightfully rendered judgment on the verdict. The judgment is affirmed.

Affirmed.


author: Wilkin, J.

text:
    Board of Trustees v. James D. Baker et al.

      School Funds—Loan—Security—Dufy of TotvnsMp Treasurer—Action on Official Bond—Estoppel.

    1. The power to determine the validity and sufficiency of the required security for school funds loaned, is vested by Sec. 57, Chap. 122, R. S., in the township treasurer.

      2. In an action on the official bond of a township treasurer, the breach assigned being the failure of the principal to take sufficient mortgage security for school funds loaned by him, it is held: That a plea to the effect that the loan was made upon said security at the request of the Directors constitutes no defense; and that the district is not estopped by the unauthorized acts of its officers.
    [Opinion filed October 5, 1887.]
    In error to the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
    Mr. W. C. Kueffner, for plaintiff in error.
    A “request ” by the Board of Education on the treasurer to loan district funds on insufficient security, does not protect him. The Board of School Directors, though a corporation, are possessed of certain special defined powers and can exercise no others, except such as result, by fair implication,- from the powers granted. As a corporation they are but the agents of the taxpayers and inhabitants of the district in which they are organized. Every official act performed by them is for their constituents, these inhabitants and taxpayers, and, for doing this act, they must show, when questioned, their authority. Glidden v. Hopkins, 47 Ill. 525; Wells v. The People, 71 Ill. 532; Newell v. School Directors, 68 Ill. 514.
    “ These bodies can exercise no other powers than expressly granted, or such as may be necessary to carry into effect a granted power. And it is fortunate for the people this power is so restricted.” School Directors v. Fogleman, 76 Ill. 189.

      “A ‘request’ to loan district school funds, not signed by a majority of the Board, nor by the officers of the Board, and not entered on the journal, is no valid document for any purpose.” Glidden v. Hopkins, 47 Ill. 525.
    Messrs. Marshall W. Weir, Dill & Schaefer, and Wilderman & Hamill, for defendants in error.
    Mr. Baker is not charged with knowing, or even suspecting, the security was not sufficient. A treasurer can not, from the nature of things, know the value of all the real estate that may- be offered as security for loans. It may frequently bap-pen that personally he knows nothing of the value of land offered. In such cases he must inform himself by the means usually employed for that purpose—-the judgment of other men. Men equally competent to judge differ widely in their estimates of the value of a given tract of land. The members of a School Board are presumed to be men of average intelligence. In this case the Board took it in hand to examine the security; they report it “ ample,” and being officers under the school law, they know what security is required; by the word “ ample ” they must be understood to mean “ what the law requires.”
    If the matters stated in the third plea are true—and they are admitted to be—it would be an act of injustice, we submit, to hold the treasurer liable for any loss that may have resulted from the loan. After examining the land and pronouncing it ample security, and directing the treasurer to make the loan, it certainly does not lie in their mouths now to say, that the treasurer had no business to make the loan, especially when they would thus entail a loss on the treasurer who acted in the utmost good faith on their directions.
   Wilkin, J.

This was a suit below on the official bond of defendant in error, James D. Baker, as Township Treasurer, to recover certain funds belonging to school district number three in his township. The breach assigned in the declaration is, that there came to the hands of the said Baker as such treasurer, money belonging to said district three; that it was his duty not to loan the same except on mortgage security on unincumbered real estate in value at least double the amount of money loaned; that in violation of that duty he did, on the 28tli of November, A. D. 1881, loan of said funds of said district three, to one Silas Smith $3,500, and took no other security, except a note of said Smith, secured by mortgage of said Smith and wife on the undivided one-half of 200 acres of land, which was not then, and has not since been, equal in value to double the amount of money so loaned on it; that said mortgage has been foreclosed and the mortgage property sold thereunder for the sum of $2,500, leaving a large amount of said loan unpaid and which remains unpaid; by means whereof the said district three has been, and is deprived of said money.

To this breach defendants in error filed, among others, this plea.

“ That before making said loan to said Silas Smith as aforesaid, the Board of Education of said district number three made and delivered to the defendant Baker a request in writing to loan said sum of $3,500 to said Silas Smith on said real estate security, which request was in the following words and figures, to wit:

“ ‘ Lebanon, Illinois, November 5, 1881.
“ 1 J. D. Baker, Treasurer of School Fund, Town two North.
Range six, West.

Dear Sir:—Mrs. Hoffman wishes to borrow $2,000. Will give real estate security in Clinton County. Silas Smith also wishes to borrow $3,500 ; will give real estate security in this county. The security in each case we think is-ample, and as our district has a surplus fund on hand we most respectfully” request you to make the above loan at six per cent, per annum for the term of three years.

J. M. Chamberlain,
Luther Brown,
John Lupton,
Members Board of Education, School District No. 3.’

“ That said request was given at the direction of said Board, and after said Board had, through a committee of its members, inspected said Smith’s land; and that said Baker made said loan upon and by virtue of said written request; and that the security referred to in the foregoing request as to the loan of said Smith is the same land described in the plaintiff’s declaration, and on which said mortgage was taken.”

A demurrer to this plea being overruled, and plaintiff below electing to stand by the demurrer, final judgment was rendered against plaintiff, and the suit dismissed. It is here insisted that the court erred in overruling the demurrer to that plea, and that is the only question we are called upon to determine. The duty of township treasurers as to the kind and amount of security to be by them taken upon the loan of money in their hands, is clearly defined by Sec. 57, Chap. 122, R. S.: “ For all sums not exceeding §100, loaned for not more than one year, two responsible securities shall be given; for all sums over §100, and for all loans for more than one year, security shall be given by mortgage on real estate unincumbered, in value double the amount loaned, with a condition that in case additional security shall at any time be required, the same shall be given, to the satisfaction of the Board of Trustees for the time being. * * * Where there is a surplus of funds in the treasurer’s hands belonging to any school district, he may loan the same for the use and benefit of said district, upon the written request of the Directors of said district, and not otherwise; and all such loans shall be on the same conditions as are prescribed in this section for loaning township funds”

The ¡olea admits the allegation in the declaration that the defendant Baker, in violation of this statute, as treasurer, did make the alleged loan, and failed to take a mortgage on real estate equal in value to double the amount of money so loaned, but which was of much less value, and seeks to avoid liability for such neglect of duty by averring that he acted in pursuance of the directions of the Board of Education of the district to which the funds belonged. There is no pretense of authority in law, to this Board of Education or Directors of districts, to determine what security shall be taken upon the loan of the district’s funds. The statute clearly and explicitly imposes upon the treasurer the duty of making loans of such fund, upon request of the Directors, and commands him to take a certain kind, and in cases like the one in question, a certain amount of security. He can not relieve himself of liability for a neglect of that duty by following the directions of a body of officers having no authority to give such directions. In making this loan the statute required real estate security double in value the amount loaned.

If the Directors could bind the district in directing the loan to be made on real estate of less than double such value, why could they not do so 'by directing it to be made on personal security? or if they had regarded Smith personally good, by directing it to be made without security ? There is as much power in the Directors to dictate to the treasurer the kind of security he shall take, as there is to determine the amount in value to be given when a mortgage on real estate is taken.

Brandt, in his work on Suretyship and Guaranty, Sec. 476, says: “The sureties of a government or corporation officer are not affected by the unauthorized acts of other officers of the government or corporation.” Among other cases he cites and quotes from Manley v. City of Atchinson, 9 Kan. 358. The city ordinances of Atchinson prohibited the City Treasurer from using or appropriating to his own use the city funds. The Mayor and City Council, by resolution, authorized him to use certain of such funds, paying interest therefor, and this action of the city officers was set up in defense of a suit on the treasurer’s bond, charging him with such misappropriation. The defense was held unavailing and from the judgment below the treasurer and his sureties prosecuted a writ of error to the Supreme Court. Kingman, C. J., in rendering the opinion of the court, says: “ The whole fallacy of the argument of the plaintiff in error lies in confounding the Mayor and Council of the city with the city itself.”

The $1,000 which this plea admits was lost because sufficient security was not taken was the money of the district, not of the Board of Education. This suit is by the trustees for the use of the district to recover that loss. Therefore, all that is said by the defendant in error as to the bad morals of the Board of Education, and their stupidity in estimating the value of the security, is without force. The doctrine of estoppel has no application here. The case cited in 7 Ill. App. is clearly distinguishable from this, but as by statute it is only authority in that particular case it is unnecessary to comment upon its distinguishing features.

That public funds can only be loaned with safety to the interest of those to whom they belong by lodging the power to determine the validity and sufficiency of the required security in some officer to be held liable for losses resulting from the abuse or negligent exercises of that power, seems'too plain to admit of argument.

By the statute above quoted that power is vested in the township treasurer in loaning school funds of the various, districts of his township, and no provision is found in the statute by which that responsibility can be shifted to others. It imposes no onerous burthen upon him.

Its requirements are plain and unequivocal. The statute told him just what the proportionate value of the security should bear to the amount of money loaned. In estimating the value of the real estate, he was only required to act in good faith and with due caution and circumspection.” The People v. Haines, 5 Gilm. 528; County of Green v. Bledsoe, 12 Ill. 267, 270. If he had done so, and acting on his own judgment and information believed that the mortgaged premises were of double the value of the loan, he would not be liable. Ibid.

By this plea no one believed it of any such value. The treasurer did not take it because he believed it of double the value of the loan, but simply because he was requested to do so by the Board of Education.

The third plea presents no defense whatever to the declaration and the demurrer to it should have been sustained. The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remmded.


author: Wilkin, P. J.

text:
    R. M. Blackman et al. v. Preston Brothers et al.

      Family Settlements—Voluntary Conveyances—Bill to Set Aside—Want of Notice—Fraud against Subsequent Creditors of Grantor.

    1. Where the grantor, after the execution of a voluntary conveyance to members of his family, which is not recorded, is permitted to retain possession as the ostensible owner, such possession is prima facie evidence of fraud as against subsequent creditors who have given credit to the grantor upon the faith of his supposed ownership of-the property.
    2. The rule which sustains and upholds family settlements, securing to the husband and father the right to make suitable and proper provision for his wife and children by means of voluntary conveyances, requires such reasonable notice of such conveyances as will prevent the grantor from afterward practicing a fraud upon others.
    8. In the case presented, it is held: That the failure of the grantees to record their deeds, while suffering the grantor to retain possession and control, pay taxes, receive the proceeds of the premises in question and obtain credit on the faith of his supposed ownership, renders their conveyances void as against the complainants, who are subsequent creditors.
    [Opinion filed October 5, 1887.]
    In ebbob to the Circuit Court of Saline County; the Hon. David J. Bakek, Judge, presiding.
    This was a proceeding below in chancery to subject certain real estate to the payment of judgments in favor of defendants in error against Calvin S. Blackman, one of plaintiffs in error, in which a decree was rendered as prayed and from which this writ of error was sued out. A reversal is here urged upon the ground that, under the facts proved, the bill should have been dismissed. The undisputed facts appearing from the evidence are, that prior to and on the 17th day of March, 1875, Calvin S. was the owner in fee and in possession of all the lands in question; that on that day he executed and acknowledged his two several deeds of conveyance, one to his son Samuel J., then about ten years old, for eighty acres, and the other to his son John Grant, then about six years old, for one hundred and twenty acres, the two hundred acres thus conveyed, then and ever since being known as the home farm of said Calvin S.; that on the 29th of October following he also conveyed by deed of that date to his wife, B. M. Black-man, the twenty acres also involved in this controversy; that these conveyances were voluntary gifts to the grantees; that when they were signed and acknowledged, Calvin S. was free from debt, and, at the'time, did not contemplate the contracting of any debts whatever; that he did in fact, shortly thereafter, engage in mercantile business, in which he incurred the liabilities to defendants in error described in their bill; that he continued to remain in the open, notorious and exclusive possession of the home farm and exercised at least some acts of ownership over the twenty acres to the time of the filing of this bill; that the same was during all of said time assessed in his name, and he paid the tax assessed thereon; that he. received and used the rents, issues and profits of all of said real estate after said conveyances as before, rendering no account to the grantees therefor; that the deeds from the time they were executed remained in a family desk in the dwelling house of the family, and were not specially controlled by any one up to August 6, 1881, when they were filed for record; that within a week after the two first mentioned deeds were made, Calvin S., as he swears, called the boys up and gave them the deeds, explaining to them the land conveyed to each, and Samuel J. then put them in the desk. There is a conflict of evidence as to who filed the deeds for record, the recorder testifying that it was done by Calvin S. and giving •very plausible reasons for the distinctness of his recollection of that fact. He is contradicted, however, by Calvin S. and by a son, Win. H., who swears that he delivered them to the ‘recorder by direction of his mother, who had some six weeks previously, delivered them to him. It is in proof that about the time the deeds were executed, there was more or less neighborhood talk about it, and that then and subsequently, :it was understood by the friends and neighbors of the family that the home farm had been deeded to the younger boys, but there is no satisfactory proof that either of defendants in error or their agents, received any information of that fact. On the contrary the salesmen of the respective defendants in error, swear that Calvin S. told them that he owned it, and that he made that statement for the purpose of obtaining ¡credit from them, and that they, relying upon the truth of such statement, did extend to him credit. These witnesses are contradicted by Calvin S. He does not, however, say that he at any time disclosed to them the fact that he had made the conveyances to his wife and sons. The indebtedness was incurred prior to the filing the deeds for record. After they were recorded, settlements were made between Calvin S. Blackman and each of the defendants in error, and he executed to each his notes, secured in part by mortgages on other real estate, and it is contended on his behalf that the security then given was ampió, but the evidence shows that upon foreclosure and sale of the mortgaged premises, balances remained due to each of defendants in error aggregating the sum of $2,276.67, the amount found by the decree below, and for the payment the lands in controversy are subjected, saving to Calvin S. Blackman his homestead rights therein.
    Messrs. Green & Gilberts, for plaintiffs in error.
    Messrs. Parish & Parish, W. H. Boyer and Marsh & Scott, for defendants in error.
   Wilkin, P. J.

The position assumed by the learned counsel for plaintiffs in error is that inasmuch as the conveyances sought to be questioned’ by this bill were made when the grantor was free from debt and worth several thousand dollars in real estate and other property besides that conveyed, the evidence failing to show that they were made in anticipation of incurring debt to avoid the payment of which they were made, the deeds must be held valid. That such is the general rule of law can not be successfully controverted, nor do we understand counsel for defendants in error to call it in question. Notwithstanding the validity of the transaction originally, the failure to pursue it by placing the deeds on record, changing possession or otherwise giving notice of the transfer of ownership, by means whereof defendants in error were induced to give credit to Calvin S. Blackman, the conveyances would become fraudulent as to them, and upon this theory, if at all, the decree must be sustained. This proposition would seem to be in consonance with justice, and it certainly has the sanction of very high authority. “ A deed not fraudulent-at first may become so afterward by being concealed or not pursued, by means of which creditors have been drawn in to lend their money. * * * The omission to place a deed on record or leaving it in the hands of the grantor are instances of secrecy within the rule.” Bump on Fraudulent Conveyances, 39, 40 ; Wait on Fraudulent Conveyances, 324; Hunyeford v. Earl, 2 Vernon, 261; Scrivner v. Scrivner, 7 B. Mon. 374.

“ Where the grantor, after the execution of a voluntary conveyance to his sons, is permitted to retain possession as the ostensible owner, and the conveyance is not recorded, such continued possession isyyrimafaoie evidence of fraud as against subsequent creditors who have given credit to the grantor upon the faith of his supposed ownership of the property.” Bank of U. S. v. Housman, 6 Paige, 526.

The grantees in this case are volunteers. They paid nothing whatever for the land claimed. It makes no difference therefore, whether they consented to the perpetration of a fraud by their grantor or not. Having failed to record their deeds and suffering then grantor to remain in possession and control, pay taxes and receive the proceeds therefrom—in short, leaving to the world the same evidence of ownership after as before the conveyances, thereby enabling him to obtain credit on the faith of his ownership, they can not now be allowed to go back to the original transaction and base their title upon it to the injury of those who were thus induced to give such credit. We do not understand that this rule militates against that which sustains and upholds family settlements, securing to the husband and father the right to make suitable and proper provisions for his wife and children by way of voluntary conveyances when he is free from debt or retains sufficient property to meet his then existing liabilities. It only requires such 2‘easonable notice of such conveyances as will prevent the grantor from afterward practicing a fraud upon others. We think the evidence in the record justifies the conclusion that defendants in error were induced to give credit to Calvin S. Blackman on the belief that he owned the land and that, as to them, the conveyances sought to be set aside were secret and therefore void.

Affirmed.


text:
    William Winkelmann v. Drainage District.

      Drainage—Sec. 11, Chap. 43, B. S.

    Under Sec. 17, Chap. 42, R. S., the jury may off-set benefits against damages for land taken for drainage purposes.
    [Opinion filed October 5, 1887.]
    In error to the Circuit Court of Monroe County; the Hon. George W. Wall, Judge, presiding.
    Mr. William Winkelmann, in person, plaintiff in error.
    Mr. W. H. Horine, Jr., defendant in error.
   Wilkin, J.

Plaintiff below sued defendant in error in assumpsit for §300, which he claims had been assessed to him as damages for land taken by it for the use of a levee in its district by a jury impaneled under the .Drainage Act of 1879. The defendant pleaded that the §300 so allowed as damages was off-set and deducted from benefits assessed by the same jury against plaintiff and that such benefits exceed the damages. Ho question is made by either party as to the regularity of the proceeding under and by which the assessment was made nor as to the fact that the jury assessed benefits to plaintiff’s land $536, and. damages to the amount of $300, and that the jury found the balance of benefits to be $236. The judgment of the court below was for defendant and a writ of error was sued out of this court by plaintiff below. He now insists upon a reversal on the single ground that the jury had no power to off-set benefits against damages for land actually taken, as he terms it, and he relies upon authorities cited, holding that under that provision of our Constitution which prohibits the taking or damaging of private property for public use without just compensation, the land actually taken must be paid for regardless of benefits. The cases cited are each condemnation proceedings in which private property was sought to be taken for public highways or railroads’ right of way and have no application to this case. This is not a taking of private property for public use within the meaning of Sec. 13 of Art. 2 of the Constitution. The object of the proceeding is to benefit the lands of owners within the district and to require each to pay for the improvement in proportion to the benefits received and is under the provisions of the statute passed under Sec. 31 of Art. 4 of the present Constitution, the amendment being adopted in November, 1878. Hence, by the express provision of Sec. 17, Chap. 42, the jury are required to off-set damages and benefits and carry forward the balance to a column for damages or benefits as the case may be. If the benefits exceed the damages they must be paid, as provided in Sec. 26 of the same chapter. Ho question is made in this case as to the legality of the assessment, either of damages or benefit. Hence the position of plaintiff in error is that he may recover the $300 damages and the district the $536 benefits, the result of which would be the same as is contemplated by Sec. 17. We find no reason or authority to support the position of plaintiff in error. The rights of the parties are fixed by the plain letter of the statute and the judgment of the Circuit Court is in conformity therewith and must be affirmed.

Judgment affirmed.


author: Pillsbury, J.

text:
    Joseph P. Griffin, Executor, v. John L. Kehrer.

      Administration—Claim for Services—Practice—Appeal—Findings of Fact by Jwry.

    Upon an appeal by an executor from a judgment against an estate on a claim for work and labor, this court declines to interfere with the findings of the jury, no errors of law being raised.

      [Opinion filed October 5, 1887.]
    Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, pressing.
    This was a claim filed by the appellee in the County Court against the estate of Ira Manville, deceased, of which estate the appellant is the executor. The merits of the claim were contested in that court before a jury and a verdict was rendered for appellee, from which an appeal was prosecuted to the Circuit Court and, upon a trial in that court, the jury found the same way and the executor again appeals.
    It appears from the record that the claim of the appellee was for work and labor performed for the testator in his lifetime, for which he had received no compensation. The defense most earnestly urged was that the work and labor claimed for were mere acts of neighborly kindness done without an expectation of procuring reward, or the intention of charging the testator for their value.
    Messrs. Marshall W. Weir and Turner & Holder, for appellant.
    Messrs. Franklin A. McConaughy and Hay & Bartel, for appellee.
   Pillsbury, J.

The question whether the services were performed as a mere gratuity was submitted to the jury upon the instructions asked by the defendant below, which presented the legal points in so clear a light that the jury must have understood the true issue between the parties.

Ho errors of law are raised by the record nor urged by counsel for appellant, but we are asked to reverse the judgment because the finding is against the weight of the evidence. A careful consideration of the evidence convinces us that there is sufficient proof in the record to sustain the finding, and that we should not interfere in this case unless we are prepared to do so in every case, where, perhaps, we might be disposed to determine the fact otherwise, were the question presented to us for decision in the first instance.

Some effect should be given to the findings of fact by a jury, and where two juries have found the same way upon a single question of fact, and about which they could not be misled, their verdict should not be set aside and their findings ignored, except when it is evident they have been actuated by passion or prejudice.

¡Nothing of that kind appears in this record, and we affirm the judgment.

Judgment affirmed.


text:
    The Ohio & Mississippi Railroad Company v. E. Emrich.

      Carriers—Loss of Goods—Action by Consignor—Parties—Liability of Carrier beyond its Line—Special Contract—Receipt—Question for Jury— Delivery to Connecting Line—Burden of Proof.

    1. A common carrier, receiving goods to carry, marked to a destination beyond its line, is bound, under an implied contract, to carry and deliver at the place marked. But this common law liability may be restricted by contract fairly made.
    2. It is a question for the jury whether the terms of a receipt or bill of lading limiting the carrier’s liability to its own line was fairly made, understood and assented to by the assignor.
    3- The consignor of goods intrusted to a common carrier may maintain an action for a failure to carry and safely deliver, the contract for transportation being with him.
    4. In the case presented, it is held: That the evidence proves ownership of the goods in question in the consignor; that upon its own construction of the contract, the burden of proof was upon the defendant to show a safe carriage to the terminus of its line, and a delivery to a connecting line; and that the evidence fails to show such delivery.
    [Opinion filed October 5, 1887.]
    Appeal from the Circuit Court of Wayne County; the Hon 0. 0. Boggs, Judge, presiding.
    Messrs. Pollard & Werner, for appellant.

      “ When a bill of lading, given on the acceptance of goods by a carrier, shows they are to be forwarded to a particular place only, which is short of their p'aee of destination, and the consignor has been a frequent shipper by the same line, and was in the habit of receiving like bills of lading, it will be presinned he was familiar with its contents, and knew the ca:rier was not under obligations to carry the goods to the place to which they were marked.” Merchants’ Des. & Tr. Co. v. Moore, 88 Ill. 136; see also C. & N. W. R. R. Co. v. Church, 12 Ill. App. 17.
    If the contract, then, was to carry to Cincinnati and there deliver to a connecting carrier, is a breach shown by showing non-receipt of goods at destination ? We think not. Hutchinson on Carriers, Sec. 760; Gilbart v. Dale, 5 Ad. & El. 543. Bill of lading shows that the goods were consigned to E. Emrich, and the presumption is that the title vested in the consignee immediately upon delivery - to the carrier by the shipper. Penn. Co. v. Poor, 103 Ind. 553; Blum, Frank & Co. v. The Caddo, 1 Woods (C. C.) 64; Hutch. Carr., Sec. 130.
    There is a complete delivery to a connecting carrier where the goods are deposited within the control of that carrier. Pratt v. Grand Trunk R. R. Co., 95 U. S. 43; Merriman v. Hartford & N. H. R. Q. C., 20 Conn. 354; Hutch. Carr., See. 102.
    Messrs. Hanna & Adams, for appellee.
    When goods are delivered to a railway company or other common carrier marked to a particular place, whether beyond the company’s line or not, and the company receives them, then there is an implied contract on the part of the company to carry such goods to the destination marked, and this liability can not be limited or in any way modified by anything contained in the bill of lading, unless such different contract is agreed to, understood and assented to by the shipper. I. C. R. R. Co. v. Frankenberg, 54 Ill. 88; Adams Express Co. v. Haynes, 42 Ill. 89; Anchor Line v. Dater, 68 Ill. 369; Field v. C. & R. I. R. R. Co., 71 Ill. 458.
    The question as to whether the shipper did make a contract to ship the goods to a destination different from the one to which the goods are marked, is á question of fact for the jury; and the hill of lading is not evidence of that fact. Field v. C. & R. I. R. R. Co., 71 Ill. 458; I. C. R. R. Co. v. Frankenberg, 54 Ill. 88.
   Wilkin, J.

About the 19th of Hovenfber, 1888, appellee shipped a box of clothing over appellant’s road from Fairfield, Illinois. It was marked Freehold, Hew Jersey, and consigned to his brother, E. Eznrich.

Appellant’s agent at Fairfield gave him a receipt for the box in which it is stated that it is “to be forwarded to Cincinnati, Ohio, station, upon the following conditions.” One of these conditions is that the responsibility of appellant shall terminate when delivered to the next carrier.” There is no dispute as to the value of the goods nor as to the fact that they were lost. The judgment below was for appellee for §100.

Appellant urges, with seeming earnestness, that appellee can not maintain this action, because, as counsel say, he was “ only the shipper or consignor,” and they insist that he must prove that he is the owner of the goods before he can sue for their loss. In other words, they assume that, inasmuch as the law presumes in the absence of proof that the consignee is the owner, therefore, the consignor can not sue. The legal position is untenable. The contract for the transportation being with the consignor he may sue for its breach in the failure to carry and safely deliver, whether he retains any property in the goods or not; the recovery being for the benefit of the consignee if he was the real owner. Hutch. Carr., See. 736; Great Western Railroad Company v. McComas, 33 Ill. 185.

There is sufficient proof of ownership in the plaintiff below to entitle him to maintain the action, even if the law was as contended by appellant.

Appellee testified that he purchased the goods; that he bought more than the market at Fairfield would justify. On cross-examination he says, “ I received this receipt for my box.” On re-direct examination the question was asked him, “And you shipped them to your brother to Freehold, Hew Jersey, to sell for you.” Answer. “Yes, sir.” This evidence is sufficient to overcome a mere presumption, and prove ownership in appellee.

Appellant also insists that by the express terms of the receipt given for the box it only undertook to carry it to Cincinnati, Ohio, and that there is no evidence to show a fail lire to do so. On the other hand appellee contends that the box being marked to Freehold, Hew Jersey, and received by appellant, the contract in law was for a through shipment and that proof of loss at destination fixes the liability of the carrier.

The law of this State is that a common carrier receiving goods to- carry marked to a destination beyond its line is bound. under an implied contract, to cany and deliver at the place marked. W., St. L. & P. Ry. Co. v. Jaggerman, 115 Ill. 407, and cases cited. This is the common law liability which may be restricted by a contract fairly and understanding!y made.

It is a question for the jury to determine whether the terms of a receipt or bill of lading, limiting liability to the carrier’s own line, was fairly made, understood and assented to by the consignor. I. C. R. R. Co. v. Frankenberger, 54 Ill. 88; Fields v. C. & R. I. R. R. Co., 71 Ill. 458. It does not necessarily fo13ow, because the shipper accepted a receipt for the goods to be carried containing limitations of the carrier’s liability, that he assents thereto. Anchor Line v. Dater, 68 Ill. 368.

Ho objection is made to instructions given. The questions of fact seem to have been fairly submitted to the jury and we see no reason for disturbing their finding.

It may be said that appellee should have known the contents of the receipt. It is evident, we think, that he did not, or, at least, that he understood that the goods were to be carried through as marked, and there is no pretense that his attention was directly called to the limitation in the receipt.

The evidence is sufficient to support the judgment below even on the theory that appellant was only required to carry to Cincinnati and there safely deliver to a connecting carrier. As before stated, the loss of the goods is not disputed; the proof is clear that they never reached their destination. Appellee swears, and it is not denied, that some four weeks after the shipment he applied to Hr. Foster, the agent of appellant at Fairfield, to send a tracer for the box; that he reported that it could not be found; that he procured a second tracer and after some weeks the agent again, reported that he could learn nothing of them. This proof is clearly sufficient to place the burthen upon appellant to show a safe carriage to Cincinnati and delivery to a connecting line, even on its construction of the contract. In Adams Express Co. v. Stettaners, 61 Ill. 187, it is said: “When the goods fail to reach their destination and the carrier does not show the manner of their loss, the presumption arises against him of want of ordinary care. This rule is reasonable and just. The carrier alone has it in his power to show what has become of the goods or why they were not duly delivered. He has the means of tracing them from the moment of their shipment; the shipper has not.”

Appellant attempted to make proof of the safe arrival at Cincinnati and delivery to another line, by introducing as a witness its transfer clerk at that place. Testifying from a memorandum made by himself he swears that he transferred the box, November 23,1886, and put it in a car of the C., C., C. & 1, standing on the track of the O. & M. Ho one was in charge of the car; there is nothing to show that it ever reached the track of the connecting line. Ho receipt was taken, nor so far as the proof shows was the C., C., C. & I. ever notified that the box had been transferred to it. While this might be a sufficient delivery to fix liability as between carriers, it is not binding on the shipper. Hutchinson on Carriers, See. 104. It can not be seriously urged that upon this evidence of delivery to the C., C.,C. & I. appellee could have maintained an action against it for a loss or failure to deliver at destination. Wait’s Actions and Defenses, Vol. 2, pages 22 and 23; 2 Parsons on Contracts, 195.

In C. & N. W. R. R. Co. v. Williams, 44 Ill. 176, cited by appellant, the transfer clerk of the receiving company swore himself that he received the freight from the company transferring it.

The evidence of delivery in that case is by no means unsatisfactory.

We are satisfied with the judgment of the Circuit Court in its view of the case as here presented, and are of the opinion that it should be affirmed.

Judgment affirmed.


text:
    The Mobile & Ohio Railroad Company v. The People ex rel. William Davis.

      Railroads—Eighivay Crossings—Signals—Penalty—Action to Recover —Evidence—Conflict of—Question for Jury—Contributory Negligence.

    In an action against a railroad company to recover the penalty for its failure to give the statutory signals at a public highway crossing, it is held: That the evidence justified the jury in finding that the crossing in question was a highway crossing and outside of any municipality; that it is immaterial whether the party for "whose use the action is brought was guilty of contributory negligence when struck by defendant’s locomotive at said crossing, the penalty being forfeited to the State; and that, the evidence being conflicting, the finding of the jury that the required signals were not given, ¿s conclusive.
    [Opinion filed October 5, 1887.]
    Appeal from the Circuit Court of Monroe County; the Hon. George W. Wall, Judge, presiding.
    This action was brought against appellant to recover the penalty provided for by the statute for its alleged failure to give the statutory signals at a public highway crossing. A trial was had before the court and a jury, a penalty imposed upon a verdict finding appellant guilty, and appeal to this court.
    Messrs. Pollard & Werner, for appellant.
    Appellant was under no obligation whatever to give the statutory signals at the time and place in question, The crossing at which the collision, referred to by the witnesses, occurred was, as alleged in the declaration and shown by the testimony throughout, in the town of Columbia, being the intersection of the so-called Centerville Road, with appellant’s railroad. There is not a syllable of testimony tending to prove that this Centerville road is a public highway. Yet proof of this factj is essential to a recovery under the statute. C. & A. R. R. Co. v. Adler, 56 Ill. 344.
    But conceding, for the purpose of argument merely, that it is shown that the crossing in question is the intersection of a public road with appellant’s railroad, yet, being within the corporate limits of a town, we contend it is not the crossing of the railroad with a public highway, within the meaning of the statute. Mobile & O. R. R. Co. v. State, 51 Miss. 137.
    Contributory negligence is a defense to an action of this kind. The reco very is allowed only for the use of an aggrieved person. Can a person be said to be aggrieved by a violation of the statute, where his own negligence brings him to grief ? We think, on reason and authority, he can not, and therefore, that contributory negligence was a proper defense to this action, and that the trial court erred in refusing the instruction asked for on this subject.
    Sec, 62 of the act under consideration prescribes a penalty, no less absolute than the one in question, for the nonobservance of its provisions—the fencing of railroad track—- and it has been held that contributory negligence will defeat the recovery of the penalty, the value of the cattle killed and attorney’s fee. J. & N. I. R. R. Co. v. Jones, 20 Ill. 221; St. L., A. & T. H. R. R. Co. v. Todd, 36 Ill. 409; I. C. R. R. Co. v. Middlesworth, 43 Ill. 64; R., R. I. & St. L. R. R. Co. v. Irish, 72 Ill. 404; T., P. & W. R. R. Co. v. Johnson, 74 Ill. 83; T., W. & W. Ry. Co. v. McGinnis, 71, Ill. 346; C. & St. L. R. R. Co. v. Woosley, 85 Ill. 370; C., B. & Q. R. R. Co. v. Seirer, 60 Ill. 295.
    Mr. William Winkelmann, for appellee.
   Pillsbury, J.

It is first objected that there was no proof that the road crossing where the alleged failure to ring the bell or sound the whistle as required by the statute was a public highway, and, therefore, no obligation rested upon the appellant to give such signals. We have examined the evidence upon this point carefully with a view to ascertain if such was the fact, and are obliged to disagree with counsel as to the effect of the evidence appearing in the record. The place where the alleged violation of the statute occurred was at the crossing of the Centerville road with the railroad, and the location was shown by a plat made by the surveyor, which purported to be a “ plat of the St. Louis and Cairo Railroad crossing at road leading from Columbia to Centerville in Town of Columbia, Monroe County, Illinois.” This plat was introduced without objection. The witnesses all call it the “Centerville road,” and one describes it as a “ macadamized road,” and the train men, called by the appellant, te tify that they not only on this occasion, but always, gave the statutory signals; and when the engineer was asked why he gave such signals at the Centerville crossing answered: “ Road crossing. It is the rule of all railroad companies to compel their engineers to give road crossing signals.” This testimony, in the absence of countervailing proof, we deem sufficient to justify the jury in finding that the Centerville crossing was a public highway and that it was so recognized by appellant and its servants engaged in its business of running trains. Indeed, the whole record considered, it does not appear that in the course of the trial below up to the time the instructions were given there was any attempt to raise the question as to the existence of a public highway at that crossing.

' It is next said that it appears that this crossing was in the Town of Columbia, and thus a street in a municipality to which the statute does not apply. Without admitting the position of appel'ant that a street in a town or city is not a public highway within the meaning of the statute requiring signals of the approach of trains to be given, it will suffice to say that there is no evidence in the record that it was within the limits of any such city or town. It is designated in the proofs as the Centerville crossing on the road leading from Columbia to Centerville, called the Centerville road, as distinguished in the evidence from the Waterloo road, another road leading from Columbia to Waterloo and crossing the railroad about 80 or 100 rods from the Centerville road. The evidence introduced was sufficient to justify a finding that it was a public highway outside of any municipality, and, if the appellant desired to properly raise the question whether the statute applied to a street in a town, it could have shown the facts by proving that the crossing in question was on a street in the town and that the town was incorporated.

It is next urged that Davis, for whose use this suit is brought as the aggrieved party, was guilty of contributory negligence in getting struck at this crossing when traveling upon the highway, and that such negligence prevents the people from maintaining this action. This position might avail if Davis was seeking to recover damages from appellant for the injury sustained by him in being ran down at the crossing by the train of the appellant. But this action is brought by the State to recover the penalty imposed upon railroads for a failure to comply with the requirements of a general law enacted for the purpose of compelling them to take certain precautions against committing injury to individuals at places where they, as well as the trains of railroad companies, have a perfect right to be. The State has an interest in the preservation of every human life within its jurisdiction, for the units of the population compose the State in the aggregate capacity, and in giving railroad companies the franchise to operate a railway it recognized the fact that it was licensing the use of the most powerful and dangerous machinery to run across our highways at the same grade, and against which the individual citizen passing along such way had no means of protecting himself unless warned of the danger he would assume in being upon the crossing at the time any locomotive was due there. It saw proper, therefore, to provide by general law for a warning to be given of the approach of any locomotive engine to any such crossing, and a penalty for the violation of the duty thus imposed, and where a railroad violates this provision of the statute and incurs the penalty it is no less guilty because some individual citizen was run down when he had not exercised that degree of care required by the common law if he was seeking to recover damages for personal injuries. In the one case the people of the State are seeking to recover the penalty affixed by general law for its violation, in the other the individual is seeking to recover for injuries caused by the negligence of another, when by exercising ordinary care he could have prevented the injury occurring. The people in a proper and constitutional manner have declared that in the operation of railroad trains certain precautions are to be observed and signals given in approaching the crossings of public highways, and it is no excuse for a violation of such requirement of the statute that some one was injured in consequence thereof, who, by a greater care to ascertain if a train was approaching, might have escaped being injured. In this case the people sue for the violation of a public statute and they have no concern whether such violation was the proximate cause of the injury to Davis or not. If, after the payment of the penalty to the people by the railroad company they see proper to give it to him, the appellant has no reason to complain. Who is the aggrieved person to whom the court will award the penalty need not concern the appellant. It was its duty to give the signals prescribed by the law of the State. If it did not do so it has forfeited the penalty to the State, and when it has paid it the law is satisfied ; it stands discharged and it has no further interest in the application that shall be made of the fund by the court. It is again objected that the verdict is against the weight of the evidence upon the question whether the signals were given for the crossing in question. The engineer and fireman and one other witness for the defendant testify that the signals were made for this particular crossing, while three witnesses for the plaintiff testify equally positively that they were watching the train as it approached the crossing to see if the signals were given, as they saw Davis approaching the crossing and feared that a collision might occur, and each of them swear that the bell was not rung nor the whistle sounded for the Centerville crossing. Five other witnesses for the plaintiff also testify that they were in a position to hear the signals if given, but heard none; some of them state they heard the signal for the Waterloo crossing a greater distance from them than' the crossing in question, but did not hear any given at this crossing. In such a conflict of the evidence it. was for the jury to determine whether the required signals were or were not given, and in that condition of the evidence their finding ought not to be disturbed by an appellate tribunal. The jury were fully instructed by the learned Judge below, and to his charge no exceptions are urged here, and in such case, upon the questions of fact arising upon the record, the verdict of the jury should be taken as settling the facts in the case. Ho such error appearing as requires us to interfere, the judgment will be affirmed.

Judgment affirmed.


text:
    The Consolidated Coal Company of St. Louis v. Andrew Yung, Administrator.

      Coal Mines—See. 16, Chap. 93, R. S.—Action for Damages for Causing Death of Miner—Parties—Declaration—Negligence at Common Lato—Instructions—Arrest of Judgment.

    1. In an action by an administrator against a coal mining company to recover damages for causing the death of the plaintiff’s intestate, the only omission of duty charged by the declaration being a failure to furnish proofs and prop the clod, dirt, slate and other materials so that it would not fall, it is held: That the declaration does not show a violation of Sec. 16, Chap. 93, R. S., under which the owner is only required to furnish and send down such props; that the negligence charged does not constitute a cause of action at common law; that an instruction given for plaintiff, which directed the attention of the jury to other and different elements of liability than those alleged in the declaration, was erroneous; and that the motion in arrest of judgment should have been granted.
    2. An instruction which directs attention to elements of liability not specified in the declaration, is fatally defective.
    [Opinion filed October 5, 1887.]

      Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
    Mr. Charles W. Thomas, for appellant.
    Mr. Edward L. Thomas, for appellee.
   Wilkin, J.

Action on the case, in which it is averred by the declaration that appellant was, on November 27, 1886, operating a coal mine and by its servants mining and hoisting coal therefrom; that while deceased was loading coal in boxes in said mine, without any fault or negligence on his part, a great quantity of clod, dirt, slate and other material fell on him from the roof of the mine, and killed him. “ That it was the duty of defendant to furnish props and prop said clod, dirt, slate and other material so that the same would not fallthat defendant not regarding its duty, as aforesaid, carelessly and negligently, with full knowledge of the dangerous condition of said clod, dirt, etc., and knowing the same was liable to fall and inflict great injury upon said Larcher, or to kill him, neglected and failed to put under said clod, etc., proper supports or props, and by reason of said failure after notice of the dangerous conditions thereof, the said clod, etc, so fell, as aforesaid, and crushed and killed Larcher, as aforesaid, without fault or negligence on his part.

The declaration then avers that the deceased left a widow and minor children, and the grant of letters of administration, laying damages at §5,000.

A plea of the general issue was filed and, on trial by jury, judgment rendered for plaintiff below for §3,000, and the defendant appealed to this court.

Appellant treats the case as shown by the declaration, as an attempt to recover for the omission of a statutory duty imposed by the 16th section of the act to protect miners, Chap. 93, B. S., and insists that the declaration does not show any violation thereof, that section only requiring the owner; agent or operator of coal mines to keep a sufficient supply of timber, when required, to be used as props * * * and to send down such props when required;” when, as it is here averred, it was not only the duty of defendant to furnish the props but also to put them in, and prop the roof of the mine so as to make it safe for the workmen.

It is also urged that as a proceeding under the statute the action was improperly brought by the administrator instead of the widow. Both these grounds of reversal presented here were raised below by motion in arrest of judgment. Treating the action as being brought under the statute, there can be no doubt as to the correctness of both propositions; the first being manifested from the mere reading of the statute and declaration, and the second sustained by Litchfield Coal Co. v. Taylor, 81 Ill. 500, cited by appellant.

Appellee, however, insists in reply, that the action is at common law, the negligence charged being common law negligence and not statutory; that a good cause of action being alleged at common law, the suit is maintainable by the personal representatives of the deceased under Chap. 70, R. S.

The fallacy of the argument in support of this reply lies in the assumption that the declaration shows common law negligence. The only omission of duty charged by the declaration is the failure to furnish props and prop the clod, dirt, slate and other material so that the same would not fall. The learned counsel cites no authority to show that any such common law duty is imposed upon the owner or operator of a coal mine. Facts and circumstances may exist in a given case from which that duty will be imposed, but no such facts are averred in the plaintiff’s declaration. But one instruction was given at the instance of appellee. The first part of it is a copy of the one discussed in C. & A. R. R. Co. v. May, 108 Ill. 288, 296, and marked “ 2.” It then adds, “ and if the jury believe from the evidence that Fritz Saner was such servant of the defendant and had the power to hire, discharge, direct and control the deceased, and others working as the deceased was, if they believe from the evidence that deceased was working for defendant, and, while so working, was killed, and that he was under the direction and control of said Saner, and, while so under the direction and control of said Sauer, was killed without fault on his part, then they must find defendant guilty, if they further believe from the evidence that said Sauer knew the dangerous nature of the work at which deceased was put to labor, and, knowing such danger, negligently and carelessly ordered such work to go on, and if they further believe from the evidence that said deceased came to his death by reason of negligence and carelessness on the part of said Sauer in and about the direction and management of said work.”

Whatever may he said of the correctness of this instruction as announcing abstract rules of law, it contains a complete departure from the issue in this case. The only negligence charged in the declaration is a failure to furnish props and prop said clod, dirt, slate and other material so that the same would not fall. By the instruction the jury is told that they must find the defendant guilty (the other facts named therein being found from the evidence) if they believe that Sauer knew the dangerous nature of the work at which the deceased Avas put to labor, and, knowing such danger, negligently and carelessly ordered such work to go on, and then, in still more SAveeping terms, if the said deceased came to his death by reason of negligence and carelessness on the part'of said Sauer, in and about the direction and management of said work, defendant is to be held liable.

The fault in the instruction is not in declaring that under the facts stated in the first clause the deceased and Sauer would not be felloAV-sorvants, within the rule exempting the common master from liability, but in directing the jury to find the defendant guilty for acts of negligence on the part of Sauer for Avliich it could not be legally held liable under this declaration, if the act bad been performed by the defendant itself.

“ When the declaration alleges the personal negligence of the defendant as the ground of liability it is a fatal objection to instructions that they direct the attention of the jury to other and different elements of liability.” C., C. & I. C. R R Co. v. Troesch, 68 Ill. 547.

“An instruction which allows a recovery for negligence in general respects without limitation to the particulars of negligence specified in the declaration, is too broad.” C. & A. R. R. Co. v. Mock, 72 Ill. 141; E. & W. G. R. Co.v. People, 96 Ill. 584.

There was manifest error in giving the first instruction and in overruling the motion in arrest of judgment, no good cause of action being alleged in the declaration, and for these reasons the judgment is reversed and the cause remanded.

Reversed and rema/nded.


text:
    Frederick C. Obermark v. The People of the State of Illinois.

      Practice—Failure to Assign Errors on Record—Bill of Exceptions— In ormation—Affidavit.

    1. Where no errors are assigned upon the record this court may decline to consider the case.
    2. The instructions and a motion for a new trial are no part of the record unless incorporated in the bill of exceptions.
    3.. An information charging the defendant with unlawfully selling intoxicating liquors requires no affidavit.
    [Opinion filed October 5, 1887.]
    Appeal from the County Court of Massac County; the Hon. Pleas Chapman, Judge, presiding.
    Messrs. Benj. O. Jones and J. C. Shaver, for appellant.
    No brief was filed for appellee.
   Green, P. J.

Frederick C. Obermark was tried upon an information filed in the County Court of Massac County, by the State’s Attorney on behalf of the people, charging defendant, with unlawfully selling intoxicating liquors in less quantity than one gallon "without having a license to keep a dram shop. The information is in the proper form, signed by the State’s Attorney but not sworn to. The jury found defendant guilty, and the court imposed a fine of §50 upon defendant and rendered judgment against him for the fine and costs. There are no errors assigned upon the record, and this omission would justify us in declining to examine the case further, or considering the matters complained of by counsel for appellant in their argument.

We will, however, dispose of the case, having examined the record carefully. The instructions complained of by counsel, and the motion for a new trial which they insist was improperly overruled, are no part of the record, and can only be made so by incorporating them in a bill of exceptions, which has not been done in this case. The motion in arrest of judgment (for the reason that the information was not sworn to) was also properly overruled. It was filed by the State’s Attorney on behalf of the people and no affidavit was necessary. Gallagher v. People, 120 Ill. 180.

We will also add to what has been said that there was sufficient,evidence to justify the verdict. The judgment is affirmed.

Judgment affirmed.


text:
    The Wiggins Ferry Company v. George W. Reddig.

      Marine Tort—Collision on Mississippi River—Jurisdiction—Action at Common Law—Duty of Steamers—Instructions—Entire Charge—Evidence.

    1. Neither Illinois nor Missouri can exercise exclusive jurisdiction over any part of the Mississippi River, nor is either confined in the exercise of its own jurisdiction to the middle thereof. The two States exercise concurrent jurisdiction on the river for all judicial purposes.
    2. Where a steamer, navigating public waters, does not keep out of the way and a collision occurs with a flat-boat, the former is prima facie liable in the common law courts as well as in the courts of admiralty.
    8. An instruction which defines the legal duty of a steam vessel, in the language of the statute and the decisions, can not be held erroneous, although it may not contain all the law applicable to the case.
    4. This court will look at the entire charge to see whether the trial court has laid down the law correctly with proper limitations and explanations of abstract propositions therein contained.
    5. In an action to recover damages caused by a collision on the Mississippi River near the Missouri shore, between a steam ferry-boat owned by the defendant and the plaintiff's fiat-boat, it is held: That the court properly excluded evidence of the common law of Missouri, touching contributory negligence; tint, from the instructions given, when taken together, the jury could not have concluded that the defendant was absolutely liable, from the mere fact that the collision occurred; and that the evidence sustains the verdict for .the plaintiff.
    [Opinion filed October 5, 1887.]
    Appeal from the Circuit Court of St. Clair County; the Hon. B. H. Caney, Judge, presiding.
    The appellee was the owner of a small flat-boat, and while it was floating down the Mississippi liiver it was struck by a steam ferry-boat belonging to the appellant, and the appellee, who was engaged in operating his flat-boat, was caught between the two boats and received serious injuries, and he brought this action in case in the St. Clair Circuit Court to recover damages therefor. It appears that the collision occurred near the Missouri side of the river. Contributory negligence of the plaintiff was relied upon as a defense to the action and in this connection the defendant below offered to prove “ that by the laws of Missouri, that one who sues for damages to his person can not recover if he himself was guilty of negligence, which materially contributed to the injury complained of,” which offered proof was rejected by the court and exception saved. The plaintiff below recovered and the defendant appealed.
    Mr. Charles W. Thomas, for appellant.
    Sec. 563, Rev. Stat. U. S., gives exclusive jurisdiction of all civil causes of admiralty and maritime jurisdiction to the United States District Courts, <c saving to suitors in ail cases tlie right of a common law remedy where the common law is competent to give it.”
    This action is for a tort committed on the Mississippi River in the State of Missouri, and is a subject of admiralty jurisdiction. The Hine v. Trevor, 4 Wall. 555; Nelson v. Leland, 22 How. 48; The Eagle, 8 Wall. 15; The Propeller Commerce, 1 Black, 574; Leathers v. Blessing, 105 U. S. 626.
    The appellee, however, chose to take advantage of the saving clause of the statute and invoke the jurisdiction of the State court to apply a common law remedy.
    By so doing he abandoned every advantage he might have had in an admiralty court and submitted himself to be governed exclusively by the modes of procedure and rules of practice and evidence which obtained in the jurisdiction he invoked. Steamboat Co. v. Chase, 16 Wall. 522.
    He accused appellant of doing him an injury in the State of Missouri, and brought- his action at common law,-and thereby gave appellant the right to apply to the case the common law of that State, regarding the degree of negligence which will bar a recovery there.
    The appellant on the trial offered to prove by a competent witness that by the common law of Missouri, one suing to recover damages done to his person can not recover if he himself was guilty of negligence which materially contributed to the injury. The court refused to permit the evidence to go to the jury and exception was taken.
    The rights of the parties in a suit for a tort depend upon the law of the place where the wrong was done and not upon the law of the place where the suit is brought. Story, Confl. Laws, Sec. 307 d; Smith v. Coudry, 1 How. 32; Mostyn v. Fabrigas, Cowp. 175; Shaver v. White, 6 Munf. 110.
    The first instruction given to the jury told them that the law requires a steamboat, under all circumstances, to keep out of the way of a flat-boat. In other words, that no amount of negligence on the part of a person floating along a stream in a flat-boat, would exquse one operating a steamboat in case of a collision. A collision between a steamboat and a flat-boat does not necessarily render the steamboat liable. It is proper to weigh the evidence and examine the facts to ascertain who was to blame, as in all other cases. Fretz v. Bull, 12 How. 466.
    There was no evidence whatever upon which to base a material portion of it. The flat-boat was not floating with the stream when it was struck. The appellee himself testified that it was being propelled by oars, and that his companion was rowing hard. This fact in itself deprived appellee of all the supposed benefit he might have had if he had allowed his boat to float with the current, and made the instruction doubly mischievous. Pearce v. Page, 24 How. 228.
    Messrs. Franklin A. McConaughy, J. T. Kenworthy and Thomas C. Fletcher, for appellee.
    Pi'oceedings of the kind at bar, that is, proceedings in personam, against the owner of the vessel for damages for the negligence of those in charge of the vessel, are expressly reserved to the State courts by Sec. 9 of the Federal Judiciary Act of 1789, and the reservation is still more clearly expressed in Sec. 1 of the Act of February 20, 1845. It is accordingly, in general, a matter of election with the injured party, whether he will seek his redress in the State or the Fzederal courts. N. J. Navigation v. Mer. Bk. 6 How. 390.
    Where jurisdiction is concurrent, that court which first takes jurisdiction will hold it exclusively—a rule supported by all authority, and founded upon reason, and, we may say, on necessity. Mason v. Piggott, 11 Ill. 85; Smith v. McIver, 9 Wheat. 532; Merrill v. Lake, 16 Ohio, 373; Ross v. Buchannan, 13 Ill. 55; Chittenden v. Rogers, 42 Ill. 100; McNab v. Heald, 41 Ill. 326.
   Pillsbury, J.

The defendant below operates a steam ferry for the transportation of railroad cars across the Mississippi River between the City of St. Louis in Missouri and East St. Louis in Illinois. On the morning of the collision the appellee was floating down the river in his boat and passed by the stern of the Sackman, appellant’s boat, which was then in her slip on the Missouri shore, and when a short distance down the river the Sackman backed out of her slip, running down stream in order to go about for the Illinois shore, and in so doing ran into the boat of appellee and injured him. This action was brought as at common law to recover damages for such injury, averring negligence upon the part of defendant in operating its boat and ordinary care upon his own part. It is insisted that the tort, if any be shown, was committed within the limits of the State of Missouri, and that the rights of the parties arc therefore to be governed by the laws of that State, and that for this reason the court erred in refusing the offered proof of the law of that State, concerning the effect of the contributory negligence of the plaintiff upon his right of recovery. Conceding for present purposes that the position of appellant, that a tort is so far local as to require the rights of the parties to be determined by the laws of the State or jurisdiction wherein such wrong was committed, we are of the opinion that such principle has no application to this case.

The Act of Congress of June 4, 1812, concerning the Territory of Missouri, provided that the Mississippi and Missouri Rivers and the navigabl.e waters flowing into them, and the carrying places between the same, shall be common highways, and forever free to the people of said Territory and the citizens of the United States, without any tax, duty or import therefor. Following this is the Act of Congress of April 18, 1818, to enable the people of Illinois to form a Constitution and State government, the second section of which defined the boundaries of the State, and fixing its western boundary as the middle of the Mississippi River, with a proviso “that the said State shall have concurrent jurisdiction * * * on the Mississippi River with any State or States to be formed west thereof so far as said river shall form a common boundary to both.” The Enabling Act for the State of Missouri, March 6, 1820, provides (last proviso, Sec. 2): u And provided also that the said State shall have concurrent jurisdiction on the River Mississippi and every other river bordering on said State and any other State or States, now or hereafter to he formed and founded by the same, such rivers to be common to both, and that the River Mississippi, and the navigable rivers and waters leading into the same, shall be common highways and forever free, as well to the inhabitants of the said State as to the other citizens of the United States, without any tax, import or toll therefor, imposed by the said State.” These acts of Congress determine the character of the Mississippi between the State of Illinois upon the east and Missouri on the west to be a common highway over which neither can exercise exclusive jurisdiction, nor is either confined in the exercise of its jurisdiction to the middle of the river, the physical boundary of the State. On the river both States have concurrent jurisdiction for all legal purposes. This jurisdiction thus conferred upon the State is transferred to the several counties bordering upon the river by Sec. 2 of the act relative to counties in the following terms: “‘Each county bounded by either the Mississippi, Ohio or Wabash River shall have jurisdiction over such river to the extent it is so bounded, which jurisdiction may be exercised concurrently with the contiguous States bounded by such river.” This same jurisdiction is recognized in criminal matters by Sec. 460 of the Criminal Code. From these statutes, both Rational and State, it is apparent that this great river is treated as a highway belonging to neither State, and yet over which each State exercises joint and equal power and authority for all j udicial purposes, and to enable tliem.to redress private wrongs or punish crime, the boundaries of each may be said to extend to the farther shore. Either a private or public wrong being committed upon the waters of the river, this common highway of the people, may then be said to be eommittéd within the jurisdiction of either State, and undoubtedly it would be held that the judicial tribunal first taking cognizance of the cause would, under well established and understood principles, retain its jurisdiction to the end of the controversy, applying the law of the forum to the facts of the case in settling the rights of the parties. Upon this ground we see no error in the action of the court in refusing to hear proof of the common law of Missouri. But if we are wrong in this conclusion no possible harm could result to appellant from its • rejection, as the law of that State, as offered to be proved, is but a fair statement of the existing law of Illinois upon the same subject, and if the court had been requested to so instruct the jury it would have done so.

Objection is taken to the first instruction given for plaintiff as follows:

The court instructs the jury that “ under the law applicable to this case, if you believe from the evidence that the boat of the defendant was propelled by steam, and that of the plaintiff was a flat-boat floating with the current of the stream, then, under the law, the boat of plaintiff had a perfect right to proceed along the said current of the said stream and follow the same, and it was the duty of the boat of defendant to keep out of the way of plaintiff’s boat.” The specific objection urged to this instruction is that it takes from the j ury all consideration of the claimed negligence of the plaintiff, and makes the appellant liable if a collision occurs, under any and all circumstances. The purpose of the instruction was to inform the jury of the duty that was cast upon vessels operated by steam in the navigation of public waters, with respect to vessels not having the advantage of this powerful controlling force. Steamers are so little affected in their movements by wind, tides or currents, that they have no great difficulty in selecting and maintaining any course that may suit those in charge of them. Grafts not thus propelled are not in position to control their movements with equal facility, but are so greatly subjected to these natural influences that it has been found necessary to impose upon the more favored craft in these particulars the burden of exercising a higher degree of care and vigilance to avoid collisions than apply to those of an equal grade or class. These duties have not only been defined by the courts of admiralty, but have been declared by the statutes of the United States. Rule 20 of Chap. 5 of the Revised Statutes of the United States, relating to commerce and navigation, provides that “if two vessels, one of which is a sail vessel and the other a steam vessel, are proceeding in such directions as to involve risk of collision, the steam vessel shall keep out of the way of the sail vessel,” and in such case, by Rule 23, the sail vessel has the right to keep her course, havjng a due regard to the perils of navigation or the special circumstances which may exist in the given case, rendering a departure from the rules necessary to avoid immediate danger Speaking of the effect of these statutory rules Mr. Justice Davis, in the case of The Steamboat Carroll v. Green, 8 Wall, 302, which was a case of collision between a steamer and a sailing vessel, said: The steamer was required to keep out of the way, slack her speed, or, if necessary, stop and reverse, while the schooner was required to maintain her course, and was not justified in changing it unless obliged to do so to avoid a danger that immediately threatened her. As the steamer did not keep out of the way, and as the collision occurred, the steamer is prima facie liable, and can only relieve herself by' showing that the accident was inevitable, or was caused by the culpable negligence of the schooner.” This decision was re-affirmed in the case of the “ City of Paris,” a steamer, against Simmons, the owner of a sailing vessel injured by a collision with the steamer (9 Wall. 634), where it is said that the schooner was pursuing her regular course when she reached the steamer’s track, and this she had the right to do, and the duty rested upon the steamer to see her and keep out of her way. These authorities are clear as to the duty imposed upon steam vessels in navigating public waters, and are no less imperative when the remedy is sought in the common law courts than in the courts of admiralty. The duty is defined by the general law and a violation of this duty is negligence, and if a collision occurs in consequence of such violation liability ensues, unless the party guilty of such act can show such contributory negligence on the part of the plaintiff as to prevent a recovery. An instruction, therefore) that defines the legal duty of a steam vessel, in the language of the statute and of the decisions, can not be held erroneous although it may not contain all the law applicable to the case in hand. Race v. Aldridge, 90 Ill. 250.

This is as far as the instruction in question went and did not prevent, as is supposed, the defendant from presenting its requests to the court to have the jury properly advised as to the effect of the alleged negligence of the plaintiff.

The court did indeed give the only instruction asked by the defendant, which must have been considered- by the jury in connection with that of the plaintiff, of which complaint is made. That instruction was as follows : “ The tiourt instructs the jury that unless the evidence all taken together shows that the servants of defendant were guilty of some particular act or acts of negligence which caused plaintiff’s injury, plaintiff can not recover.” The jury could not, from these two instructions, have concluded that the defendant was absolutely liable from the mere fact that a collision occurred, but in addition to such fact they must find that “ the defendant was guilty of some particular act or acts of negligence which caused plaintiff’s injury.” As we have seen, the instruction given at the request of the plaintiff correctly defined the duty of the defendant, and that of the defendant required the commission of some specific act in violation of that duty before the liability of the defendant attached for the injury occasioned by the admitted collision between the boats. Thus construed we are of the opinion the law was given to the jury with substantial accuracy so far as responsibility attached to the defendant for the injury, and if the defendant had seen proper to submit to the jury the question whether the plaintiff could have avoided the collision, it could have prepared proper requests for that purpose. .

Under our system of instructing juries it can scarcely be expected that every written one shall present all the law of the case. The jury are to be advised as to the law applicable to various branches of the case as well as to the matters involved as a whole, and when the law is correctly given upon any single point or question arising in the case and does not ignore other principles applicable to other branches of the case, but these are also properly stated in other parts of the general charge, such instruction ought not to be held erroneous. McCollom v. I. & St. L. R. R., 94 Ill. 534; Town of Fox v. Town of Kendall, 97 Ill. 72. Such is believed to he the rule in those jurisdictions where the jury is charged orally by the court in one general connected charge and where one .part- of the charge is held to be modified, limited or explained by other parts of the same charge. The true rule would seem to be that the entire charge is to be looked at by the appellate tribunal, whether the charge is given orally or in writing, and if it, as a whole, has laid down the law correctly with proper limitations and explanations as to abstract propositions contained in it, it is and ought to be sufficient. Such is the holding of our own courts. Northern L. Packet Co. v. Binninger, 70 Ill. 571. The merits of the case are clearly with the plaintiff. He was floating down the stream in his boat and he had a perfect right to be there. He had passed the dock of the Sackman quite a distance when she backed out with her stern down stream and after getting into the river and down stream a sufficient distance, turned her stern toward the western shore in order to obtain sufficient room to head for the Illinois shore and in so doing backed into the plaintiff’s boat.

The only excuse offered is that the wheel-houses of the steamer were so high as to cut off the view of the pilot in the wheel-house from the river either to the right or left of the stern; that it was only between the wheel-houses directly astern that the river could he seen in near proximity to the boat, and in consequence of this obstruction of the view the pilot did not notice the boat of the plaintiff until the stern of the steamer had so far swung around as to bring it in view between the wheel-houses over the deck of the ferry, when it was too late to avoid the collision. If the view of the waters of the river was thus obstructed, common prudence would suggest that a lookout should have been stationed upon the stern of the ferry-boat so as to give warning of the presence of any craft upon the river liable to be injured while the ferry was backing out of her slip. Her duty was to see that the way was clear and not back out into the river where boats were likely to be passing at any time without taking any precaution to avoid meeting with them. When the plaintiff saw that his boat was in immediate danger of being run down he used his best endeavors to row his boat into the shore and thus avoid the injury, and in this it is claimed his negligence consisted. We do not so regard his action, but consider it but a fair effort upon his part to avoid the effect of the negligence of those in charge of the ferry-boat. We have not noticed especially the instructions concerning the measure of damages) as it was conceded upon the oral argument of the case that if the plaintiff was entitled to recover upon this record, no valid objection could be taken to the amount of damages assessed by the jury. The judgment of the Circuit Court will be affirmed.

Judgment affirmed.