author: Mr. Justice Fulton

text:
    Lucile Keslick, Administratrix of the Estate of Floyd H. Keslick, Deceased, Appellant, v. Williams Oil-O-Matic Heating Corporation, Appellee.
    Gen. No. 8,826.
    Opinion filed October 10, 1934.
    Loren B. Lewis, for appellant; Ivan H. Light, of counsel.
    Lederer, Livingston, Kahn & Adler and Bracken, Livingston & Murphy, for appellee; Sigmund Livingston, Herbert Livingston and Archie H. Siegel, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.

On November 3, 1932, Lucile Kesliek, as administratrix of the estate of Floyd H. Kesliek, deceased, filed a suit for damages for the death of her husband, Floyd H. Keslick. The declaration charged a violation by appellee of the Occupational Diseases Act, Cahill’s St. ch. 48, 1i 185 et seq., resulting in the death of Floyd H. Kesliek, on December 6, 1931, leaving a widow and minor child surviving; on September 18, 1933, additional counts were filed restating the cause of action set out in the original count. The appellee filed a demurrer to the original declaration and additional counts which was sustained, on the grounds that the action was improperly brought by the administratrix. Thereafter on September 26, 1933, the declaration and additional counts were amended, by substituting Lucile Kesliek, individually, and William Kesliek by Lucile Kesliek, his next friend, as plaintiffs in the place of Lucile Kesliek, administratrix of the estate of Floyd H. Kesliek, deceased. On October 18, 1933, plaintiff dismissed William Kesliek, by Lucile Kesliek, his next friend, as a party plaintiff and also dismissed all counts except the original declaration as amended, leaving Lucile Kesliek as the sole plaintiff. The appellee filed a plea of the general issue to the declaration as amended and a special plea setting up that the “ several supposed causes of action in the said amended declaration mentioned are separate and distinct causes of action from those alleged in the original declaration and that they did not accrue to the plaintiff at any time within one year next before the filing of the amended declaration.”

Appellant demurred to this plea and upon hearing the court overruled the demurrer. Appellant elected to stand by the demurrer and judgment of nil capiat was entered, from which judgment appellant perfected her appeal to this court.

The only question raised upon the appeal is whether or not the court properly overruled the demurrer to the special plea of the appellee, or whether the substitution of Lucile Kesliek, individually, for Lucile Keslick, administratrix, etc., is such an amendment as is allowable, or whether it is such a change as to be the stating of a new cause of action. Appellant contends that under paragraphs one and two, section 39 of the old Practice Act, Cahill’s St. ch. 110, ¶ 39 (App’x), the amendment is permissible and that the substitution does not state a new cause of action even though it is conceded that the substitution took place more than one year after the cause of action accrued.

The Occupational Diseases Act, Cahill’s Illinois Statutes, ch. 48, ¶ 199 (a), provides that all rights of action thereunder shall accrue “to the widow of such deceased person, his lineal heirs or adopted children, or to any other person or persons who were, before such loss of life, dependent for support upon such deceased person.” In construing a similar provision of the Mines Act our courts have said such language confers the sole right of action to the widow if she be living. McFadden v. Saint Paul Coal Co., 183 Ill. App. 36.

There was, therefore, no cause of action under the Occupational Diseases Act accruing to the administratrix of the deceased, and she. was not empowered by any statute to bring this action. The Occupational Diseases Act is in derogation of the common law and must be strictly construed. “In a statutory action like this, where the right is conditional, the plaintiff must bring himself clearly within the prescribed requirements necessary to confer the right of action.” Hartray v. Chicago Rys. Co., 290 Ill. 85.

It. therefore seems clear that the original declaration filed in this case by the administratrix, of the estate of Floyd H. Kesliek, deceased, stated no cause of action, and indeed no cause of action was stated under the Occupational Diseases Act until the amendment to the original declaration was filed nearly two years after the date of- the death of Floyd H. Kesliek. It is contended however by appellant’s counsel that because of the amendment to section 39' of the old Practice Act, Cahill’s St. ch. 110, ¶ 39 (App’x), the amendment relates back to the filing of the suit. That amendment provided that amendments are applicable “if it shall appear from the original and amended pleading that the cause of action asserted . . . in the amended pleading grew out of the same transaction or occurrence, and is substantially the same as set up in the original pleading.” In the present case the original declaration stated no cause of action because the statute did not authorize suit to be brought by the administratrix.

We therefore do not think that' the cause of action asserted in the amended declaration can be held as being substantially the same as that stated in the original declaration. The Appellate Courts of this State have recently so construed that amendment to the Practice Act. Hanley v. Waters, 255 Ill. App. 239; Holden v. Schley, 271 Ill. App. 159; Redmond v. Schilthelm, 273 Ill. App. 222. The case of Zister v. Pollack, 262 Ill. App. 170, relied on by appellant, might seemingly appear to be in conflict, but in that case there was a defective statement of a good cause of action and not the assertion of a new cause of action in the amendment.

Inasmuch as the original declaration in this case stated no cause of action under the Occupational Diseases Act, and the amendment which did state a cause of action for the first time was made more than one year after the death of Floyd H. Kesliek, deceased, the time for filing suit under that act had expired and the court properly overruled the demurrer of appellant to the special plea of appellee.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Hall

license: Public Domain

text:
    Louis Turk, Appellant, v. United States Fidelity and Guaranty Company, Appellee.
    Gen. No. 36,670.
    Opinion filed June 20, 1934.
    Rehearing granted and opinion confirming original opinion filed October 24, 1934.
    Aaron Soble, for appellant; Irving Goodman, of counsel.
    Eugene P. Kealy, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal from a judgment of the superior court of Cook county sustaining a demurrer to the second amended declaration of defendant filed in a suit on a bond given by defendant to plaintiff, conditioned upon the faithful performance of a building remodeling contract in writing, entered into between the plaintiff and one A. E. Bjork.

By this agreement, Bjork agreed to furnish all labor and materials necessary to move back and reset a building of plaintiff at 725 North Western avenue, Chicago, for the agreed price of $6,700. The moving and resetting’ was made necessary by the widening of the street named. The contract between plaintiff and Bjork, which is set forth in the declaration, contains detailed specifications as to the manner in which the work to be performed should be done, and the terms of payment are provided for as follows:

“$1,000.00 to be paid when rear of building has been excavated 2' 0", necessary new footings built in rear preparatory to the moving, and the necessary holes cut for loading of building.

“$3,000.00 to be paid when building has been moved to new location and money shall have been received from the City of Chicago, under the award.

“$1,000.00 to be paid when sewer, water and plumbing has been taken care of and building bricked back.

“$1,700 to be paid within ten (10) days after the contract has been fully completed and waivers of lien executed and delivered.”

The contract between plaintiff and Bjork also contains the following:

“It is further stipulated between the parties that in case the party of the second part shall commit any breach of the covenants or agreements in the contract, specifications and plans, party of the first part shall have the right to terminate the contract, and engage another contractor to complete the job, and the party of the second part is to he liable for any and all damages and such daonages are to he deducted'from part of the contract price that should remain due party of the second part.

“It is further agreed by and between 'the parties that the work upon said job is to be commenced on the 9th day of July, 1930, and is to be finished not later than the 17th day of September, 1930, and for each day that it shall take said party of the second part after the 17th day of September, 1930, to complete the job, said party of the second part shall pay as liquidated damages to said party of the first part, the sum of Fifteen Dollars ($15.00) per day. Allowances shall be made to the contractor for time lost by reason of strikes, act of God, or the public enemy, lightning, earthquake, cyclone or rainstorms, or for causes beyond the control of the contractor. ’ ’

The conditions of the bond upon which defendant is sued, are as follows:

“The condition of this obligation is such that if the said principal shall well and truly perform and fulfill all and every the covenants, conditions, stipulations and agreements in said contract mentioned to be performed and fulfilled, and shall keep the said obligee harmless and indemnified from and against all and every claim, demand, judgment, lien, cost and fee of every description, incurred in suits or otherwise against the said obligee, growing out of or incurred in, the prosecution of said work according to the terms of the said contract, and shall repay the said obligee all sums of money which the said obligee may pay to other persons on account of work and labor done or materials furnished on or for said contract, and if the said principal shall pay to the said obligee all damages or forfeitures which may be sustained by reason of the nonperformance or malperformance on the part of the said principal of any of the covenants, conditions and stipulations and agreements of said contract, then this obligation shall be void; otherwise, the same shall remain in full force and virtue.”

The declaration contains the statement that “Bjork was unable to complete the work by him assumed to be performed in the said contract by the 17th of September, 1930, and that on request of the said Bjork, the plaintiff gave the said Bjork an extension of time for the period of 15 days to and including the 2nd day of October, 1930, within which to complete the said work,” and that defendant, by the instrument in writing, consented to the granting of the extension.

It is alleged that on or about the 1st of September, 1930, plaintiff was informed by Bjork that the rear of the building had been excavated to 2' 0", that where necessary, new footings had been built in the rear preparatory to moving the building and that the necessary holes had been cut for the loading of the building, and from the fact that he, plaintiff, could not, on an examination of the premises, discover the truth of the representations made by Bjork, and relying* upon Bjork’s representations, paid him $1,000, but that since making such payment, he, plaintiff, had discovered that the work alleged to have been done as above set forth had not been accomplished in a first class workmanlike fashion. It is further alleged that on the 20th of September, 1930, plaintiff, being informed by Bjork that the building had been moved to its new location in accordance with the specifications and contract, and from the fact that he, plaintiff, could not from an examination, discover the truth of Bjork’s representations, paid Bjork the sum of $3,000, and alleges that since such payment, he had learned that the work in connection with moving the building to its new location was inefficiently and unskillfully ' done, that the building will have to be moved back to its old location and the foundation refinished before the building can safely be permanently moved to its new location. It is also alleged that on the 8th day of October, 1930, relying upon the statement of Bjork that the building had been bricked back in accordance with the specifications in the contract, that sewer, water and plumbing had been properly taken care of, plaintiff paid the sum of $1,000 on account of the work done, and alleges that he, plaintiff, could not, from an examination of the premises, discover the truth of the representations made by Bjork, but that he has since learned that the building was not bricked back, and that the sewer, water and plumbing had not been taken care of in accordance with the specifications, but that leaky and defective pipes were used, and in other ways, the specifications of the contract were not lived up to. The entire amount paid by plaintiff to Bjork was $5,000.

It is alleged by plaintiff that after learning that the work had not been done according to the specifications, which seems from the declaration not to have been difficult of ascertainment, he exercised his right under the contract to prohibit Bjork from doing any further work under its terms, and engaged another contractor to complete the work, and that the last mentioned contractor did complete such work according to the plans and specifications at a cost to plaintiff of $3,366.22; that the work was not completed until December 10, 1930, or 67 days beyond the time in which Bjork agreed to perform the work; that he is entitled to recover the sum of $15 per day for 67 days, or a total of $1,005 ; that in addition to the sum mentioned, he had been compelled to pay out the sum of $500 in attorney’s fees, and that his total damage by reason of Bjork’s failure to perform the contract as agreed, amounts to $4,871.22, together with interest, which he seeks to recover.

As stated the contract between the plaintiff and Bjork, with the plans and specifications a part thereof, contains distinct details as to how the work should be done, and distinct terms as to when payments should be made by the plaintiff to Bjork, and the defendant here had a perfect right to rely upon plaintiff’s compliance with these terms and on his not making the payments to Bjork until the work had been done as agreed. Plaintiff was not justified in relying upon Bjork’s statement to the effect that the work had been so done if this was not true. A familiar case is one" where a reserve fund is retained by the builder, to be paid only upon the completion of the work, and it has frequently been held that if the principal, in other words the owner, violates these provisions of the contract and pays the contractor before the work is completely performed according to the plans and specifications, the surety is not to be held liable. Upon this question, the Supreme Court, in the case of Finney v. Condon, 86 Ill. 78, makes the following statement:

“The law upon this subject seems to be, the reserved per cent to be withheld until the completion of the work to be done is as much for the indemnity of him who may be a guarantor of the performance of the contract, as for him for whom it is to be performed. And there is great justness in the rule adopted. Equitably, therefore, the sureties in such cases are entitled to have the sum agreed upon held as a fund out of which they may be indemnified, and if the principal releases it without their consent it discharges them from their undertaking. The principle is, the withdrawal of the fund agreed upon as security for the performance of the contract without his consent is a prejudice to the surety or guarantor. Sureties and guarantors are not to be made liable beyond the express terms of their engagements. They have the right to prescribe the terms and conditions on which they will assume responsibility, and neither of the principals can change those terms without the consent of the sureties, even with a view to avoid ultimate liability. As sustaining the views expressed, we cite the following authorities: Ryan v. Trustees of Shawneetown, 14 Ill. 20; Calvert v. London Dock Co., 2 Keen 638; Steam Navigation Co. v. Bolt, 6 C. B. (N. S.) 550.”

To the same effect is the case of Castle v. Powell, 261 Ill. App. 132, where this court cites Finney v. Con-don, supra, as authority, and says:

“A guarantor may impose any terms or conditions in his guaranty which he may choose and will only be liable to the holder according to the terms of the agreement. (Ryan v. Trustees of Town of Shawneetown, 14 Ill. 20, 24; Finney v. Condon, 86 Ill. 78, 81; Illinois Surety Co. v. Munro, 289 Ill. 570, 574.) The nature and extent of the liability of a guarantor depends upon the terms of his contract, and he will be held liable for all that is done by his principal that was contemplated by his contract, but he will not be held liable beyond the strict terms of his contract. Brandt in his work on Suretyship and Guaranty (3d Ed.) Vol. 1, sec. 106, said: ‘A rule never to be lost sight of in determining the liability of a surety or guarantor is, that he . . . has a right to stand upon the strict terms of his obligation, when such terms are ascertained. ... It will not be implied that the surety has undertaken to do more or other than that which is expressed in such obligation, . . . Nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended by implication beyond the terms of his contract. To the extent and in the manner and under the circumstances pointed out in his obligation, he is bound and no further.’ ”

Defendant here insists that the words in the building contract between plaintiff and Bjork, “and the party of the second part (Bjork) is to be liable for any and all damages which might ensue as a result of such breach, and such damages are to be deducted from part of the contract price that should remain due party of the second part,” mean what they say. In order to give these words their meaning and significance, they must be considered in connection with the entire paragraph of which they are a part, to wit: “That in case the party of the second part (Bjork) shall commit any breach of the covenants or agreements in the contract, specifications and plans, party of the first part shall have the right to terminate the contract and engage another contractor to complete the job, and the party of the second part is to be liable for any and all damages, and such damages are to be deducted from part of the contract price that should remain du,e party of the second part.” By this clause in the contract, plaintiff was given the right to terminate the contract upon determining that Bjork was not complying with its terms, and to retain such portion of the contract price as would compensate him “for any and all damages” as might result from Bjork’s failure to perform. This he did not do. We hold that the court was not in error in sustaining the demurrer to the declaration. The judgment is affirmed.

Affirmed.

Wilson and Hebel, JJ., concur.

On Petition por Rehearing.

This case was decided at the June term of this court, and a rehearing granted.

Upon full consideration of the opinion hereinbefore rendered, the conclusion of the court is that the original opinion should prevail. The judgment is affirmed.

Affirmed.

Hebel, P. J., and Wilson, J., concur.


author: Mr. Presiding Justice Hebel

text:
    Patrick Wetterer, Appellee, v. The Atchison, Topeka and Santa Fe Railway Company, Appellant.
    Gen. No. 36,786.

      Opinion filed October 24, 1934.
    Rehearing denied and opinion modified November 15, 1934.
    Emmet Trainor and F. W. Miller, for appellant; Charles H. Woods, of counsel.
    Finn & Miller, for appellee.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendant from a judgment entered in favor of the plaintiff in the sum of $23,500, upon a verdict of a jury recovered in an action of trespass on the case instituted under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, ¶ 321 et seq., by the plaintiff against the defendant to recover damages for injuries sustained by him on June 8, 1931, while he was assisting in the unloading of scrap rail from a freight car in the defendant’s Corwith yard in Chicago, which rail was consigned to the defendant at Chicago, Illinois.

In the declaration the plaintiff alleges that while he was engaged in unloading an interstate shipment of steel rails in defendant’s scrap yards, defendant’s craneman, employed by it, negligently moved the car that was being unloaded, causing certain of the rails then piled on the ground to fall upon the plaintiff. The second count alleges that the craneman negligently moved the car without warning the- plaintiff. The first additional count alleges that one of defendant’s employees negligently signaled the crane operator to move the car) thereby causing the rails to fall upon the-plaintiff. -

To the plaintiff’s declaration the defendant filed a plea of the general issue, an additional plea of assumption of risk, and a second additional plea alleging that prior to the commencement of the suit plaintiff had agreed to accept as payment for the injuries sustained by him the amount prescribed by the Illinois Workmen’s Compensation Act, Cahill’s St. eh. 48, ¶ 201 et seq.; that the amount so provided for by the statute was to be paid at the time and in the manner prescribed by the act, and further, that the plaintiff had accepted numerous payments under said settlement, both prior and subsequent to the commencement of the suit, which payments totaled the sum of $988.

Plaintiff demurred to defendant’s second additional plea, which was sustained by the court.

From the facts in evidence there was located in defendant’s yard, used for the purpose of unloading freight cars which contained miscellaneous rails, a traveling crane owned by the defendant. This crane consisted of an overhead structure supported on two parallel rows of upright steel columns placed about 50 feet apart. On the top of each of the parallel structures was a track consisting of two rails from end to end of the structure. The crane in question consisted of a bridge extending from the structure and was constructed from the side of the uprights. There was underhung at one end of the bridge a cab, inside of which was stationed the crane operator. There was also hung from the under side of the bridge a large magnet which moved from side to side and up and down, as occasion required, by means of a cable attached to a drum. Toward the west side of the structure was located a railroad track upon which the cars to be unloaded by the crane were stationed. The rails in question were old, and varied in length from 29' to 33 feet. On the day in question plaintiff and the man with whom he was working had unloaded two cars of rails before the accident happened. They commenced building the pile of rails at the east side of the overhead structure on which the crane operated, and as the unloading progressed the pile was completed further to the west. The highest point of the rail pile was at the east end and varied, according to the testimony of witnesses, from 6 to 15 feet in height. The pile sloped from the east to the west, and, in order to prevent the rails from sinking into the ground, at various points there were placed two parallel steel rails running in an easterly and westerly direction, and called “skids.” It was the practice to spot the loaded car at these skids, and by means of the magnet unload the rails from the car, the rails lying in a northerly and southerly direction and piled to the desired height, the pile being highest in the center. The men assisting in the work each had an appliance which was called a hook, and it was their duty to straighten the rails on the pile so as to keep them as even as possible.

The plaintiff testified that after car N-KP-70170 was unloaded, a number of the rails were disarranged and lying crosswise on the pile, and one of the rails projected from the pile under the said freight car, just south of the north trucks thereof; that the plaintiff called to the crane operator not to move the car until the rails were straightened out, but the crane operator disregarded his request and proceeded to drop the magnet into the empty car; that the craneman pulled the car to the south a short distance by means of the crane, which was attached to the magnet; that when the car moved, the north truck thereof caught the rail wliich projected under the car and moved the rail to the south, and the movement of said rail caused the other rails, which were in contact with the rail to be dislodged and to roll or fall from the pile, and the rails struck the plaintiff and caused the injuries, damages for which the plaintiff instituted Ms suit.

At the time of the injury plaintiff suffered a fracture through the transverse process of the fourth and fifth lumbar vertebrae; fracture of the seventh, eighth, ninth and tenth ribs; and the ninth rib was also fractured on the opposite side; a fracture through the neck and also a fracture through the head of the left radius (elbow joint); and another fracture of the radius five inches below the first; a transverse and comminuted fracture containing many fragments, through the olecranon process of the left ulna (elbow joint); also a fracture of the left ulna, below the elbow joint. Some of these fragments at the elbow joint were distributed through the soft tissue, and one of the witnesses, a physician called by the defendant, testified that the hand was held in extension; the fingers in extension and the thumb in adduction, the thumb being turned in toward the palm of the hand. There was a limitation of flexion and extension of the elbow joint, limitation of flexion and extension of the wrist joint, inability to pronate and supínate the forearm except to a slight degree; inability to flex the fingers except the terminal phalanges of the fingers to a slight degree; that the first phalanx of the little finger was overextended and the second and third phalanx of the little finger were markedly flexed; that there was a loss of function of some of the muscles of the forearm, hand and fingers, together with a shortening of some of the tendons. He was suffering from a condition known as ischemic paralysis, a paralysis that is due to a disturbance primarily in the blood supply to the muscles involved, in which the muscle fibre becomes infiltrated with connective tissue and the muscle fibre itself disappears, and there remain largely connective tissues that take the place of the normal muscle fibre, and this witness testified that the condition was permanent and progressive.

The injuries to the plaintiff were sustained on June 8,1931, while working in the north end of defendant’s scrap yard, or reclamation plant, as it is sometimes called.

The yards were laid adjacent to and on the west side of defendant’s Corwith switch yards in Chicago, Illinois. The scrap yards are separated from the Cor-with switch yards by a fire road running in a north and south direction. These scrap yards were maintained for the purpose of collecting and classifying rails, and eventually selling material which had been scrapped by the defendant company, — old material for which the defendant had no further use and which was sent there from various points of the defendant’s line. The yards contained. numerous buildings which contained machinery and which were connected by tracks.

The tracks in the scrap yard were laid out in a north and south direction, and were numbered numerically for the purpose of identifying them. The tracks in this yard converged from a lead track, which was connected with the tracks in the Corwith switch yards, three of which tracks were known as Nos. 26, 27 and 28, and were used for the purpose of receiving incoming cars of freight. Another track at the west side of the scrap yard was used for outbound freight. The cars loaded with scrap rail were consigned to the scrap yards, and were placed on the receiving tracks by the Corwith switch engines. After the cars destined to the scrap yards were placed on the receiving tracks they were moved by a switch engine assigned to the scrap yards. This engine did not operate in the Corwith switch yards, nor did the Corwith switch engine operate within the scrap yards. Car No. NKP-70170, which was the car plaintiff assisted in unloading, immediately prior to the time of the accident, arrived at the Cor-with switch yards in a train consisting of 128 cars at 1:35 a. m. on the morning of June 6,1931. The record shows that this car originated in Conroe, Texas, and was switched to the receiving tracks of the scrap yards, consigned to G. C. & S. F. Ry. Co., c/o R. K. Graham, an employee of the defendant. The scrap yards did not operate on Saturdays and Sundays, June 6th and 7th during the month of June, 1931, but the Corwith switch yards did.

On the morning of June 8, 1931, Mr. Thompson, the weighmaster at the scrap yards, in accordance with his usual custom, made a check of all the cars on the receiving tracks in the scrap yards and noted them in his records. Car No. NKP-70170 was among the cars which he found on the receiving tracks in the scrap yards on that morning.

The important question is as to the character of the shipment. Was the character of the shipment changed to intrastate transportation when the car in question arrived at the Corwith switch yards on June 6, 1931, and was switched to the reclamation plant yard? The evidence tends to establish that on Saturday and Sunday following the arrival of the car, the unloading crew did not work, and it also shows that the car was on the scrap yard track for the purpose of unloading on June 8, 1931; that it was switched on that date to the north end of the switch track and was being unloaded when the accident occurred and the plaintiff was injured.

This question has been before courts of appeal, and the rule is that when a car is engaged in interstate transportation and received by the consignee and stored without unloading, the character of the transportation is changed. This was not the fact, however, in the instant case. The car was switched onto the track in the reclamation yards to be unloaded, in order that the freight car might be returned for the purpose of carrying freight for transportation. The arrival of the car at the Corwith switch yards on June 6,1931, was but an interruption, and the car was still engaged in interstate transportation and the shipment was not completed until unloaded. In a somewhat analogous case, the Supreme Court of Illinois, in the case of Pipal v. Grand Trunk Western Ry. Co., 341 Ill. 320, where a certiorari was denied by the U. S. Supreme Court, said:

“Defendant’s contention is that plaintiff at the time of the injury was not engaged in interstate commerce or in work so closely related to it as practically to be a part of it; that the cars from which the rails were being unloaded were shipped from Michigan, consigned by bill of lading to Nolan, the consignee, at Blue Island, and that after the cars reached their destination at Blue Island their interstate character ceased and the unloading of them was not an act of interstate commerce; that the cars had reached their destination when they arrived at Blue Island, and moving them to 139th street for unloading was an intrastate or local switching movement.”

The court in passing upon the question said:

“Defendant relies very much upon Chicago, Burlington and Quincy Railroad Co. v. Harrington, 241 U. S. 177, and Lehigh Valley Railroad Co. v. Barlow, 244 id. 183. These two decisions do not control this case. In the Harrington case coal was brought from a foreign State into defendant’s yards at Kansas City, Missouri, where it remained on storage tracks for more than a week and was then moved to a coal chute for unloading. The coal was owned by the railroad company, and after storage for a week or more was being switched to the chutes for unloading when the accident occurred to the plaintiff, who was a member of the switching crew. The court held the movement from the storage tracks to the chute for unloading was an intrastate haul. In the Barlow case cars of coal shipped from the State of Pennsylvania were placed on the railroad company’s switch and sidetracks in its yards at Cortland, New York, where they remained for seventeen days and were then moved by a switching crew to a trestle within defendant’s yards for unloading. The injury to Barlow, who was a member of the switching crew, occurred while the cars were being moved to the unloading trestle. The court held that the interstate movement terminated before the cars left the siding where stored. In the case at bar the consignee of the cars, Nolan, knew the cars were coming. They arrived between four and five in the morning of August 6, and a few hours afterward they were placed by the railroad yardmaster and his switching crew on the hold-track at Blue Island and Nolan learned of their arrival that day. He ordered them removed to 139th street for unloading. According to the testimony that was the only place to unload them and make it convenient for the subsequent use of the rails. Placing the cars on the hold-track was but a temporary interruption of the interstate shipment and did not terminate its character.”

In the case of Wagner v. Chicago, R. I. & P. Ry. Co., 277 Ill. 114, the court said, which is pertinent to the question before us:

“It is further urged as a matter of law that if the cars had been employed in interstate commerce they had been delivered and the interstate character of the shipment had ceased. The G-ould car had been taken, to the Quaker Oats mill and partly unloaded and it became necessary to move it in its partly unloaded condition, but it was again to be returned to complete the unloading and was then to be loaded by the Quaker Oats Company for a shipment to Pennsylvania. The service of the car in interstate commerce had not been completed and the car was still engaged in interstate commerce.”

In the case of Godly v. Wilson, 203 Ill. App. 612, in which the facts are somewhat similar, the court in passing upon the question raised, said: “The ties with which it was loaded were purchased by the receivers in Missouri and elsewhere, outside of the Stqte of Illinois, and were shipped from St. Louis to the receivers at East St. Louis in care of one E. E. Barrow, who was the agent of the receivers for the distribution of ties which it purchased. As soon as the car reached East St. Louis, instructions were asked of him and he directed it to be sent to Peldn in care of Dyson, who was the foreman of the section crew to which appellee belonged. . . . The original bill of lading was to receivers, care of Barrow, the officer who had charge of the distribution of such ties, and with the intention that Barrow should designate the point to which they should be sent. Accordingly the original bill of lading was amended in red ink instead of preparing a new bill, and by the amendment the car was to go to Pekin in care of Dyson, the section foreman.” And the court in that case held that the original shipment, which was being unloaded, from the freight car was continuous, and that the plaintiff was still engaged in interstate transportation at the time he was injured.

The case of Jonas v. Missouri Pac. R. Co. (Mo. App.), 48 S. W. (2d) 123, in which the writ of certiorari was denied by the United States Supreme Court, is another case where ties were being unloaded from coal cars at the time the plaintiff was injured. The court said:

“The facts show that plaintiff was injured while unloading wooden ties from coal cars, by one of the ties slipping off the side of defendant’s car and falling upon him. The work was being done by plaintiff and several of defendant’s employees in defendant,’s yards in Leavenworth, Kansas. The cars of ties had been shipped in from another state and had been in the yards ‘one or two days’ before they were unloaded. The ties were to be used in ‘new’ work of defendant, ‘putting in power switches and the ties probably came in before they got ready to use them, ’ and they were being unloaded so that the cars could be sent ‘out on other work.’ ‘The idea was to get them out of the cars, release them (the cars) ... if you hold them too long, you have to pay penalty. ’ At the time plaintiff was injured the ties were being thrown from the car to the ground where they were to be stored for future use by defendant. . . .

“Defendant argues that the ‘cars containing the ties had been placed upon a storage track several days before the unloading operation.’ Defendant further says: ‘ The handling of the ties constituted a new movement entirely and said work was as independent of the original movement as the movement of the car to another place would have been. ’ Defendant admits that the length of time the cars had been in the yard is not material. . . .

“We have examined the cases of Cruse v. Chicago, R. I. & P. Ry. Co., 133 Kan. 340, 299 P. 624; Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 36 S. Ct. 517, 60 L. Ed. 941; Pierson v. New York, S. & W. R. Co., 83 N. J. Law 661, 85 A. 233; Lehigh Val. R. Co. v. Barlow, 244 U. S. 183, 37 S. Ct. 515, 61 L. Ed. 1070, and like cases, cited by the defendant and find them not in point. Those cases involved shipments which had arrived at their destination, and the goods or material constituting the particular shipment had been stored and the employee was injured in taking the material to the point where it was to be delivered or used, or in unloading it there. In other words, the interstate character of the shipment ceased at the time of the storage of the goods.

“(1) As before stated, there is no evidence in the case at bar that the cars containing the ties were placed in storage on the switch track, but the inference to be drawn from the testimony is to the contrary. If these cars loaded with ties had been stored on a siding to remain there an indefinite length of time before being unloaded another situation might have been present. But the inference from the testimony is that it was the purpose to unload the cars as soon as possible. We think the interstate character of the shipment had not ceased when plaintiff was injured. Swain v. Terminal R. R. Ass’n, 220 Mo. App. 1088, 291 S. W. 166; Baltimore & O. S. W. R. Co. v. Burtch, supra; Kepner v. Cleveland, C. C. & St. L. Ry. Co., 322 Mo. 299, 15 S. W. (2d) 825, 65 A. L. R. 599; Rhodes v. Iowa, 170 U. S. 412, 18 S. Ct. 664, 42 L. Ed. 1088; Cox v. St. Louis & S. F. R. Co., 111 Tex. 8, 222 S. W. 964.

“(3) Under all the controlling United States authorities, and doubtless all others so far as now known, unless the shipment in the car or cars has been received by the consignee and stored without unloading, so as to cause the interstate transportation to be then at an end, the interstate transportation is not terminated until the shipment has been delivered to, or received by, the consignee and unloaded. 2 Roberts on Federal Liability of Carriers, p. 1435, secs. 747, 755; Moran v. Central R. Co., 88 N. J. Law 730, 96 A. 1023 (affirmed by U. S. Sup. Court Mem. Opinion, 245 U. S. 629, 38 S. Ct. 62, 62 L. Ed. 519); Kepner v. Cleveland, etc., Ry. Co., 322 Mo. 299,15 S. W. (2d) 825, 65 A. L. R. 599. . . .

“In Covington Stoch Yards Co. v. Keith, 139 U. S. 128, loc. cit. 136, 11 S. Ct. 461, 463, 35 L. Ed. 73, the court says: ‘The transportation of live-stock begins with their delivery to the carrier to be unloaded upon its cars, and ends only after the stock is unloaded and delivered, or offered to be delivered, to the consignee. ’

“ (4) The rule as to when the interstate transportation ends applies where carrier and consignee are the same. This makes no difference. Swain v. Terminal R. R. Ass’n, 220 Mo. App. 1088, 291 S. W. 166; Cruse v. Chicago, etc., R. Co., 133 Kan. 340, 299 P. 624; U. S. v. Benson, 234 U. S. 548, 34 S. Ct. 956, 58 L. Ed. 1459; Public Utilities Comm. v. Landon, 249 U. S. 236, 245, 39 S. Ct. 268, 63 L. Ed. 577.

“It is clear, in the case now under consideration on the motion for rehearing, that the ear containing the ties had not been set on a storage track, but that it was on an industrial switch track which was in constant, or at least frequent, use, and that the defendant (although the car had been there ‘one or two days’ before being unloaded) was endeavoring to unload it as soon and as fast as possible so as to allow the car to return to the work of transportation from which it came. Consequently, as said in the opinion, the ‘interstate character of the shipment had not ceased when plaintiff was injured. ’ Certainly, under the evidence in the record, we are not in a position to gainsay that proposition. The motion for rehearing must, and is, therefore, overruled. All concur.”

The defendant cites many authorities in support of its theory that this case is not governed by the Federal Employers’ Liability Act, Cahill’s St. ch. 114, ¶ 321 et seq., but is governed by the Workmen’s Compensation Law of Illinois, Cahill’s St. ch. 48, ft 201 et seq. First, it is contended that the interstate character, if any, of the shipments of rail which plaintiff had assisted in unloading just prior to theffime the injury was sustained, had ceased and terminated prior to the time plaintiff began his work; second, that the work in which plaintiff was engaged at the time of the accident and just prior thereto, was not so closely related to interstate transportation as to be a part thereof, and among the authorities cited is the case of Chicago & N. W. Ry. Co. v. Bolle, 284 U. S. 74, which was a case under the Federal Act. In that case the plaintiff was engaged as a fireman to keep up the fires in a stationary boiler of the defendant company to supply steam for the purpose of heating the passenger depot and adjacent buildings, and also the interstate and suburban passenger coaches standing in the yards. At the time of the accident the stationary engine in one of the buildings of the defendant was out of order and a locomotive engine was being used as a substitute. The locomotive which the plaintiff had been firing was attached to several other engines and hauled several miles to the coal chutes for the purpose of loading coal, and while the coal was being loaded in one of the engines, the plaintiff was injured. The court said in its opinion:

“ ‘ Having in mind the nature and usual course of the business to which the act relates and the evident purpose of Congress in adopting the act, we think it speaks of interstate commerce, not in a technical legal sense, but in a practical one better suited to the occasion (see Swift & Co. v. United States, 196 U. S. 375, 398), and that the true test of employment in such commerce in the sense intended is, was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it. ’

“It will be observed that the word used in defining the test is 6transportation,’ not the word ‘commerce.’ The two words were not regarded as interchangeable, but as conveying different meanings. Commerce covers the whole field of which transportation is only a part; and the word of narrower signification was chosen understandingly and deliberately as the appropriate term. The business of a railroad is not to carry on commerce generally. It is engaged in the transportation of persons and things in commerce; and hence the test of whether an employee at the time of his injury is engaged in interstate commerce, within the meaning of the act, naturally must be whether he was engaged in interstate transportation or in work so closely related to such transportation as to be practically a part of it. . . .

“Plainly, the respondent in the present case does not bring himself within the rule. At the time of receiving his injury he was engaged in work not incidental to transportation in interstate commerce, but purely incidental to the furnishing of means for heating the station and other structures of the company. His duty ended when he had produced a supply of steam for that purpose. He had nothing to do with its distribution or specific use. Indeed, what he produced was not used or intended to be used, directly or indirectly, in the transportation of anything. It is plain that his work was not in interstate transportation and was not so closely related to such transportation as to cause it to be practically a part of it.”

The true rule which is to be applied in cases of this character is defined by the court in the case of New York, N. H. & H. R. Co. v. Bezue, 284 U. S. 415, where the court said:

“The criterion of applicability of the statute is the employee’s occupation at the time of his injury in interstate transportation or work so closely related thereto as to be practically a part of it.”

The application of this rule to the facts as they appear in this record demonstrates that the plaintiff at the time of his injury was engaged in interstate transportation work which was closely related and practically a part of the transportation. The necessity for the unloading of the rails or freight car was as much a part of the transportation as the loading.

The next point to be considered is: Did the plaintiff assume the risk, in the unloading, of rails falling or sliding against him? It is the contention of the defendant that the rules relating to the assumption of risk are well known, and have been often repeated by the Supreme Court of the United States, and one of the cases which the defendant cites is that of the Seaboard Air Line Ry. v. Horton, 233 U. S. 492. “Some employments are necessarily fraught with danger to the workman — danger that must be and is confronted in the line of his duty. Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them. These distinctions have been recognized and applied in numerous decisions of this court.”

In the discussion of this question it is well to have in mind that section of the Federal Employers ’ Liability Act:

“Every common carrier by railroad while engaging in commerce between any of the several States or Territories, . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” Cahill’s St. ch. 114, ¶ 321.

Prior to the time of the injury, the plaintiff was straightening rails on the ground and removing such rails as were under the wheels of the freight car that had been unloaded. This work was a part of his employment. When the crane operator started to operate the crane in the direction of the unloaded freight car while the workmen were working on the ground, the plaintiff, as well as the other men, called to the craneman to wait a minute until they had the rails straightened out and the rails removed from under the car. The craneman ignored this warning and went ahead with the crane, dropped the magnet into the car and started to move the train which moved the freight car. There is no evidence that the plaintiff knew that the crane operator would disregard this warning after dropping the magnet into the empty freight car. The defense of assumption of risk is an affirmative defense and the burden is upon the defendant. In the case of Kiefer v. Elgin, J. & E. Ry. Co., 351 Ill. 634, the court announced the rule that: “ ‘The burden of proof of the assumption of risk was upon the defendant, and unless the evidence tending to show it was clear and from unimpeached witnesses, and free from contradiction, the trial court could not be charged with error in refusing to take the question from the jury.’ (Kanawha and M. Railway Co. v. Kerse, 239 U. S. 576, 36 Sup. Ct. 174.)”

The plaintiff did not assume, nor did he become aware of, the risk after warning the crane operator not to move the car, nor was it obvious to him that the crane operator would disregard his warning and proceed to move the empty freight car. In Kiefer v. Elgin, J. & E. Ry. Co., supra, the court, in deciding that case, said: “ ‘On the facts of the case before us, therefore, plaintiff having voluntarily entered into an employment that required him, on proper occasion, to board a moving train, he assumed the risk of injury normally incident to that operation, other than such as might arise from the failure of the locomotive engineer to operate the train with due care to maintain a moderate rate of speed in order to enable plaintiff to board it without undue peril to himself. But plaintiff had the right to presume that the engineer would exercise reasonable care for his safety, and cannot be held to have assumed the risk attributable to the operation of the train at an unusually high and dangerous rate of speed until made aware of the danger, unless the speed and the consequent danger were so obvious that an ordinarily careful person in his situation would have observed the one and appreciated the other. ’ While the evidence for the defendant was that there was no increase in the speed of the engine at the time plaintiff attempted to place his foot on the foot-board of the tender, that evidence is directly contrary to the testimony of plaintiff that at the time he attempted to board the locomotive the engineer suddenly increased the speed, with the result that there was a jerk which caused plaintiff’s foot to miss the foot-board. Plaintiff did not assume the risk incident to a sudden increase in speed at the very moment he was attempting to board the locomotive, when the engineer had knowledge that he was about to do so. ’ ’

Beginning on the 30th day of June, 1931, and continuing to the 29th day of October, 1932, the plaintiff accepted and cashed checks delivered to him by the defendant’s claim adjusters on forms set out in the record. The total amount so paid by the defendant to the plaintiff was $988. Defendant offered to prove that the plaintiff had agreed to accept settlement under the Workmen’s Compensation Act of Illinois, but this evidence was refused and excluded by the court.

The defendant contends that the plaintiff was estopped to maintain this suit because he accepted numerous payments, totaling $988 under the Workmen’s Compensation Act of Illinois, and that the plaintiff’s rights are governed by the Illinois Act; that the defendant was ready and willing to complete payment under said act.

The issue in this case is whether or not the plaintiff was engaged in interstate transportation and commerce within the terms of the Federal Employers ’ Liability Act. The defendant is not relieved from liability unless the action is one that cannot be maintained under the provisions of the Federal Liability Act. The Federal Employers’ Liability Act, sec. 55, Title 45, Mason’s United States Code, provides:

“Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void.”

The defendant in order to have the benefit of the deduction of the sums paid to the plaintiff, offered, and the court gave, the following instruction to the jury:

“In computing the amount of your verdict, provided you find for the plaintiff, you should deduct from the amount you ultimately find due the plaintiff from the defendant, as elsewhere explained in these instructions, provided you find any sum due, such sums, if any, as you find the defendant has heretofore paid the plaintiff on account of the alleged injuries resulting from the acts complained of in plaintiff’s declaration. ’ ’

The rule is settled in this State that an employer cannot relieve himself of liability under the Workmen’s Compensation Act by contract with his injured employee. In the case of International Coal & Mining Co. v. Industrial Commission, 293 Ill. 524, the court said-in part:

“It is well settled in this State that an employer cannot relieve himself of liability under the Workmen’s Compensation act by a contract with his employee. (Tribune Co. v. Industrial Com., 290 Ill. 402; Chicago Railways Co. v. Industrial Board, 276 Ill. 112; Wabash Railway Co. v. Industrial Com., 286 Ill. 194.) ” Then, again, the Supreme Court of the United States held that where the facts bring a case within the Federal Employers’ Liability Act, such case is governed by that act, and all State laws bearing upon the subject are superseded. This rule is approved in the case of New York Cent. R. Co. v. Winfield, 244 U. S. 147, in these words: “Whether and in what circumstances railroad companies engaging in interstate commerce shall be required to compensate their employees in such commerce for injuries sustained therein, are matters in which the nation as a whole is interested, and there are weighty considerations why the controlling law should be uniform and not change at every state line. It was largely in recognition of this that the Employers’ Liability Act was enacted by Congress.” The fact that the plaintiff accepted compensation under the State law is not a release of a cause of action under the Federal Employers’ Liability Act. In the case of Neumann v. Morse Dry Dock & Repair Co., Inc., 255 Fed. 97, the court said:

“The respondent interposed as one defense that the libelant made the application above stated and accepted compensation in full satisfaction of his claim. The libelant now moves to strike out this defense, upon the proposition that the moneys received under the Compensation Law were gratuities, or extrajurisdictional payments. This is opposed by the respondent on the authority of The Fred E. Sander (D. C.) 212 Fed. 545. On this theory it is urged that, although no common-law right of recovery exists, although the injured party must proceed in admiralty, and although the Employers’ Liability or Workmen’s Compensation Act of the various states gives no additional cause of action or right because of the exclusive admiralty jurisdiction under the United States Constitution (Southern Pac. Co. v. Jensen, supra), nevertheless the injured person may, by acts showing an election or voluntary contract to accept compensation under the state law, estop himself, and thereby waive his rights in admiralty. . . .

“Thus a contract which could not be enforced, because the law creating it is unconstitutional, and as to which the courts have no jurisdiction, would, without conscious agreement on the part of the injured party, be left as the only protection of that injured party in collecting any future compensation, and valid as a defense to the employer. . . .

“If this money was paid under mistake of law, there would seem to be no reason for holding that the libel-ant’s right to sue in admiralty had been lost, nor to hold that the libelant must as a condition precedent restore the money paid before suing to recover in admiralty. The case is not one of rescission of contract with a tender of consideration received. Drobney v. Lukens Iron & Steel Co., 204 Fed. 11, 122 C. C. A. 325.

“It is, however, a situation where the money paid under the Compensation Law was on account of the injuries, and in so far as this money came from or belonged to the employer it should be treated as a payment on account, and would, of course, be deductible from the ultimate recovery, if there be any.”

There are decisions of courts of appellate jurisdiction that seem to have immediate bearing upon the question: Was the plaintiff placed in a position to make an election of one of two inconsistent remedies? In the case of Hogan v. New York Central & H. R. R. Co., 223 Fed. 890, upon the question of election of remedies, the court said:

“. . . it may be well to state that we fail to see how the commencement and subsequent discontinuance of the action in the state court and under the state law could estop the complainant from bringing her action in a federal court. In Snow v. Alley, 156 Mass. 193, 195, 30 N. E. 691, 692 (1892), Mr. Justice Holmes, now of the Supreme Court of the United States, correctly stated the doctrine of election when he said: ‘Election exists when a party has two alternative and inconsistent rights, and it is determined by a manifestation of choice. Metcalf v. Williams, 144 Mass. 452, 454 (11 N. E. 700). But the fact that a party wrongly supposes that he has two such rights, and attempts to choose the one to which he is not entitled, is not enough to prevent his exercising the other, if he is entitled to that. There would be no sense or principle in such a rule. ’ ”

Concluding as we do that plaintiff is not estopped to maintain this suit because of the acceptance by him of voluntary payments made by the defendant, which payments are provided for by the Illinois Workmen’s Compensation Act, the court properly sustained the demurrer of the plaintiff to the defendant’s second additional plea as a defense that the plaintiff is estopped to maintain this action.

The court properly excluded Exhibits 1 to 35, inclusive, relative to and filed with the industrial commission bearing upon the claimed settlement by the defendant of plaintiff’s claim under the Ulinois Workmen’s Compensation Act.

As we have already indicated, the plaintiff was not estopped by the acceptance of these payments, and could properly maintain this action under the Federal Liability Act. Our conclusion applies as well to the ruling of the court excluding the evidence of a witness offered by the defendant upon the claimed settlement upon the terms of the Compensation Law of Ulinois.

The defendant contends that the trial court erred in refusing to admit in evidence defendant’s Exhibit 75, being a copy of the Chicago Switching Committee Tariff No. 22 — W, which was a true and authentic copy of the original on file with the commission. Counsel contend that their purpose in offering this evidence was to establish that the scrap yard, also frequently referred to as the reclamation yard, was considered as an industry, and if admitted, the defendant could argue that the delivery to the industry on its receiving tracks terminated the movement of the car from the point of origin, and in support of their contention cite and rely on the case of American Ry. Express Co. v. American Trust Co., 47 F. (2d) 16.

This case is as to the liability of the express company for the loss of money received by it from the shipper at the shipper’s place of business. The decision of the court is to the effect that the express company was not liable under the tariff which was filed with the Interstate Commerce Commission, for the reason that this tariff provided that the shipper was to deliver the money to be shipped to the express company at its office, and this tariff being a part of the contract between the parties, was not waived by a receipt of the money at a bank. The trial court in this case did not err in refusing to admit the exhibit in evidence. There is evidence which tends to establish that the shipment was interstate transportation and not a local one, as contended for by the defendant. From an examination of the exhibit it appears that it is a directory of industries with private or individual side tracks, and the refused exhibit would not have been of aid to the jury in determining the character of the shipment.

There are three instructions that the defendant contends the court erred in refusing to give to the jury:

1. No. 2: “The court instructs the jury that if you believe from the evidence the injury complained of by the plaintiff was the result of a mere accident, you must find the defendant not guilty.”

2. No. 4: “The court instructs you that the fact the plaintiff was injured, provided you find plaintiff was injured, carries with it no presumption of negligence on the part of the defendant, but it is an affirmative fact for the plaintiff to prove by a preponderance of the evidence that the defendant has been guilty of negligence as charged in the plaintiff’s declaration. The plaintiff is not entitled to recover by offering evidence to show that the defendant may possibly have been guilty of negligence. The plaintiff must prove by a preponderance of the evidence that the defendant was guilty of some one of the acts of negligence charged in the plaintiff’s declaration; and if you believe from all the testimony that the matter is uncertain, and the evidence shows any one of a number of things may have brought about the injury, for some of which the defendant was the proximate cause and for some of which it was not, then your verdict should be ‘Not Guilty.’ ”

3. No. 5: “You are instructed that if you do not believe car NKP-70170 was the car which had been unloaded just prior to the time of the alleged accident, and which was being moved at the time of the alleged accident, you are instructed to return a verdict of ‘Not Guilty.’ ”

In the opinion of the court the first instruction is subject to criticism in that the instruction omits the question of negligence which may have caused the accident. The mere fact that an accident occurred will not in and of itself create a liability, unless caused by the negligence of the defendant, and in order to justify the giving of this instruction to find the defendant not guilty, the question of negligence should have been incorporated.

The second refused instruction is also subject to criticism as to that part of the instruction that the fact that the plaintiff was injured is no presumption of negligence. That may be so, in and of itself, but evidence of injury is a fact, together with the facts of negligence, for a jury to pass upon. The fact that evidence alone is referred to in the instruction without including all of the facts for the jury, is confusing, for the jury are to consider all of the elements properly before them in considering the negligence of the defendant, and the court in refusing to give this peremptory instruction in the form offered was not error.

As to the last refused instruction offered by the defendant, as above set forth, this is a peremptory instruction to find the defendant not guilty, and it is necessary that this instruction advise the jury to consider all of the facts and circumstances in evidence. There is a conflict in the evidence, and the jury upon the subject must consider all of the facts and circumstances in evidence in arriving at a verdict.

Finally, the question of the amount of the verdict is questioned by the defendant. In the statement of fact this court has set forth the injury sustained by the plaintiff as it appears in the evidence, and no doubt the injuries were a serious disturbance of the plaintiff’s anatomy and of a permanent character. The facts as disclosed in the record were considered by the jury upon the question of pain, suffering, inability to work and, in addition, the permanence of the injuries. This court has considered this question, and being one of fact we cannot say the jury was moved by any other consideration than the facts as they appear in the record. In our opinion the verdict is not excessive.

For the reasons stated in this opinion the record is free from reversible error, and the judgment is accordingly affirmed.

Judgment affirmed.

Wilson and Hall, JJ., concur.


text:
    Lillian Kucera, Appellee, v. Otto Novak and Emilie Franks, Appellants.
    Gen. No. 37,037.
    Opinion filed October 24, 1934.
    Rehearing denied November 15, 1934.
    Carl Strover, for appellants.
    Sidney Schneider, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

The complainant filed a bill against the defendants in the circuit court of Cook county for the partition of Lot 71 in E. A. Cummings Addition to Warren Park, in the South-east quarter of Section 20, Township 39 North, Range, 13, East of the 3rd Principal Meridian in Cook county. This is an appeal from a decree confirming a master’s report and ordering partition of the property or in the alternative its sale and the distribution of the proceeds.

It is alleged by the bill in substance that complainant and defendants are brother and sisters; that their mother devised the property to them, and that they are each seized of the real estate in equal one-third parts as tenants in common; that since the death of their mother, complainant and defendants have occupied the real estate jointly, said Otto Novak and Emilie Franks occupying the first floor and complainant occupying the second floor in the two-flat building situated on the real estate; that since February, 1929, the real estate has been incumbered by a trust deed given to secure the payment of $5,000, bearing interest at the rate of 6 per cent per annum. It is further alleged that since the death of the mother of the parties, the complainant has managed the real estate, has paid $500 on the principal indebtedness secured by the trust deed, and interest in the sum of $150; also a special assessment amounting to $7.24, and the sum of $150 on account of the 1930 real estate taxes levied against such property; that there has been no contribution to her by the other two cotenants upon said payments, and that there is due complainant the sum of $269.08 from each of the defendants as their proportionate share thereof, which should be paid out of the proceeds of the sale in the partition suit.

Defendants filed an answer to the bill; also a cross-bill which was subsequently amended, in which defendants charge in substance that the real estate in question has been owned by the parties in equal shares since September 1, 1930; that since October 1,' 1930, the property has been occupied and is now being occupied to the extent of substantially one-half thereof by complainant and that the balance is occupied by defendants; that complainant should be charged with one-half of the rental value of the property and be credited with one-third of the rental value from October 1, 1930, until the termination of the lawsuit, that is, until the approval by the court of any partition sale of the real estate in suit, and that the balance found to be due should be credited to the defendants and cross complainants in equal shares, and should be set off against any sum or sums which might be found due from cross complainants to the complainant. The matter was referred to a master in chancery on the bill, answer and cross-bill to take proof. The master’s report and the evidence indicate that there is little question of fact involved in the case. It is undisputed that the parties own the property as tenants in common and that each owns a one-third interest therein; that for the period in question complainant occupied the second story of the two-flat building located on the premises, and that the defendants occupied the lower flat; that the defendants were unable to contribute anything towards the maintenance of the property, or the payment of sums falling due on the indebtedness against the property; that by an agreement between complainant and defendants, the complainant paid the amounts alleged to have been paid out, that is to say, $500 on account of the mortgage indebtedness, $150 paid on account of taxes, and $7.24 on account of a special assessment, making a total of $657.24, and that each defendant had delivered a note to complainant for one-third of that amount,, or $219.08. The decree finds that complainant is entitled to reimbursement from the defendants, by reason of the advances made by her, in the sum of $219.08 each, the amount of each of the notes, and that the overplus, if any, should be distributed in proportion to the respective interests of the parties.

During the period in question, there has been no income derived from the property involved, and the record shows that since October 1, 1930, the complainant and defendants have been in possession thereof, as stated, by mutual consent and agreement; that there has been no demand by either that the other pay rent, and no agreement between them that any rent should be paid by either. Each cotenant was lawfully in possession. In the settlement made between the parties, each defendant recognized the obligation of each to complainant by giving a note, and it is not in evidence that either of them claimed anything from complainant until the filing of the bill.

Cahill’s Illinois Revised Statutes, 1933, chapter 2, ¶ 1, provides “That where one or more joint tenants, tenants in common or coparceners in real estate, or any interest therein, shall take and use the profits or benefits thereof, in greater proportion than his, her or their interest, such person or persons, his, her or their executors and administrators, shall account therefor to his or their co-tenant, jointly or severally.” Par. 2 provides that “The action of account may be sustained: First — By one joint tenant, tenant in common or coparcener, his or her executor or administrator, against the other or others, who receive, as bailiffs, more than his or their due proportion of the profits or benefits of such estate.”

Defendants cite the case of Clarke v. Clarke, 349 Ill. 642, as authority for the proposition that the statute provides “for an accounting not merely in case a co-tenant takes and uses the entire profits and benefits of the real estate in question, but whenever a co-tenant takes and uses the profits of it in excess of his share. ’ ’ In that case, one of the parties claimed title to the premises involved under the Limitations Act by reason of a claimed adverse possession of the property for a period of 20 years, and the court said in reply to this contention: “Mere possession of one tenant in common who receives the rents and profits and pays the taxes assessed against the property, no matter for how long a period, cannot be set up as a bar against the co-tenants. In such case the possession of one tenant in common is m contemplation of possession of all the tenants in common.” In the instant case, the co-tenants were all in actual possession of the premises, apparently, by mutual agreement. When- the defendants made a settlement with the complainant for their share of moneys paid out by her in maintaining the property, they gave her their notes and recognized their debt to her. The record does not indicate that at this or at any time prior to the filing of their answer and cross-bill did defendants, by demand or otherwise, ever claim that complainant was indebted to them.

In Cooper v. Martin, 308 Ill. 224, in the bill for the partition of the property involved, complainant prayed that one of the defendants be required to account for rents collected, and by the answer this defendant, in the language of the court, “declared her willingness to account for the same. The decree required such accounting, . . . and the chancellor required her to account to the other owners for the reasonable rental value. She has assigned a cross error on that portion of the decree. She testified that the complainant, after the death of their mother, told her that she could live in the house without paying any rent.” The court held that this defendant “was not liable as a co-tenant, to account for the rental value of the home, or any part of it, until a demand should be made by a co-tenant or co-tenants, or there should be an ouster or refusal to permit joint occupation. (Boley v. Barutio, 120 Ill. 192; Angelo v. Angelo, 146 id. 629; Cheney v. Ricks, 187 id. 171.)”

In Clarke v. Clarke, supra, the Supreme Court seems to distinguish Cooper v. Martin, supra, and says:

“The appellant contends that the chancellor erred in entering a provisional decree for an accounting because no demand for rent has ever been made. In support of this contention Cooper v. Martin, 308 Ill. 224, is cited. It is there said that the co-tenant is not liable to account for the rental value of premises, or any part of it, until a demand is made by a co-tenant or co-tenants or there has been an ouster or refusal to permit joint occupation. At common law such was the rule, but it has not been the rule in this State since 1845, or perhaps an earlier date. Section 1 of chapter 2 of the Revised Statutes, entitled ‘An act in regard to the action of account,’ provides that ‘where one or more joint tenants, tenants in common or coparceners in real estate, or any interest therein, shall take and use the profits or benefits thereof, in greater proportion than his, her or their interest, such person or persons, his, her or their executors and administrators, shall account therefor to his or their co-tenant, jointly or severally.’ It was held in Crow v. Mark, 52 Ill. 332, that an action of account was not an exclusive remedy but a bill in chancery may be maintained to compel a co-tenant to account for profits and benefits which a co-tenant has taken and used in greater proportion than his share. The statute of Illinois is similar to the statute of 4 and 5, Anne, (chap. 16), which provided that actions of account may be brought by a tenant in common against another, as bailiff, for receiving more than comes to his share or proportion. The history of the enactments upon this subject is reviewed in Woolley v. Schrader, 116 Ill. 29, where it is said that our own act. is broader than the statute of Anne, and by express terms a tenant may be required to account to his co-tenant for benefits as well as profits which he has taken or used in excess of his share. The cases of McParland v. Larkin, 155 Ill. 84, and Dinsmoor v. Rowse, 211 id. 317, approved the holding in Woolley v. Schrader, supra. It does not appear that our statute or the prior holdings of this court were brought to the attention of the court in Cooper v. Martin, supra. The right of a co-tenant to compel an accounting from another co-tenant who has received more than his share is definitely settled, and the chancellor committed no error by decreeing an accounting in this case, provided partition of the premises is not made and a sale is ordered.”

In the instant case, each of the parties was in lawful possession. Each acquiesced in and to the holding by the others. When the settlement was made between complainant and defendants, the rights of the parties with reference to the occupancy of the property and their mutual obligations with reference thereto were recognized, acquiesced in and determined, and because of all these facts, we believe that this case is distinguished from Clarke v. Clarke, supra, and we are, therefore, of the opinion that the court was not in error in entering this decree and in holding that complainant is not liable to the others under the statute for the occupancy of the premises. The decree is, therefore, affirmed.

Affirmed.

Hebel, P. J., and Wilson, J., concur.


text:
    Mrs. Anna Goodman, Appellant, v. Meyer Fridstein et al., Appellees.
    Gen. No. 37,159.
    Opinion filed October 24, 1934.
    Rehearing denied and opinion modified November 15, 1934.

      Wilhartz, Hirsoh & Schanfarber, for appellant; Samuel E. Hirsoh and Julian H. Levi, of counsel.
    Jacobson, Merrick, Nierman & Silbert, for certain appellee; J. Sherman Dudley and Sidney C. Nierman, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal by plaintiff from an order of the municipal court of Chicago, striking her third amended statement of claim, and that defendant have judgment against plaintiff for costs. Prior to the entry of this order, defaults had been entered against two of the defendants, Leroy F. Plarris and Meyer Fridstein. The motion to strike the statement of claim was made by defendant, Lewis F. Jacobson, who, alone, filed an appearance and briefs, as appellee here.

This third amended statement of claim alleges in substance that the Madison Park Building Corporation executed and delivered a series of 75 real estate gold bonds, 40 of which bonds were for the sum of $500 each, and 30 for the sum of $1,000 each, amounting in the aggregate to a total of $55,000, all secured by a trust deed executed by the Madison Park Building Corporation to the First Trust & Savings Bank of Chicago, as trustee, in and by which certain real estate was conveyed as security for the payment of the bonds; that the bonds matured on various dates up to and including the first day of May, 1937, and bore interest at the rate of six per cent per annum, payable semiannually; that in each of the bonds it is provided that if default be made in the payment of any one of them, or of the coupons attached thereto, at the time when the same became due, and such default should continue.for 30 days, then at the election of the legal, holder of such bonds the entire principal sum of any of the bonds of the series should become due and payable, such election to be made at any time after the expiration of 30 days without notice, and that the entire principal secured by the trust deed would thereupon become due and payable at the election of the legal holder or holders of five or more of such bonds upon the terms and under the conditions described in the trust deed, and that in each of the bonds of the series it is further provided that if default is made in the principal sum of any of the bonds, or on any of the interest coupons attached thereto when the same should become due, then interest at the rate of seven per cent per annum should be allowed on both principal and interest in default; that the defendants, Fridstein, Harris and Jacobson, were then and are now the principal stockholders of the Madison Park Building Corporation, the makers of the bonds; that on the date of the bonds for value received, Fridstein, Harris and Jacobson, by a written indorsement on each of the bonds, guaranteed the payment of all of them, and of the interest provided to be paid, and that this guarantee of payment is as follows :

‘1 Guarantee of Payment
“For Value Received, we, the undersigned, Meyer Fridstein, LeRoy F. Harris and Lewis F. Jacobson, for ourselves, our heirs, executors, administrators and assigns, hereby, jointly and severally, guarantee payment of the within bond and of all interest therein provided for at the respective maturities therein mentioned, and at any time or times thereafter, waiving demand, notice of non-payment and protest.
“Meyer Fridstein
“LeRoy F. Harris
“Lewis F. Jacobson”

It is alleged that plaintiff is the bona fide holder and owner of five of such bonds in the sum of $1,000 each, together with the interest coupons attached thereto, maturing subsequent to November 1, 1931, and that plaintiff acquired these bonds and interest coupons prior to the maturity thereof for a good and valuable consideration without notice of any defects or infirmities of title; that on or about November 1, 1931, there became due and payable on account of such bonds a semiannual interest payment on all of them, evidenced by interest coupons attached to the bonds; that the interest on each of plaintiff’s bonds, which became due and payable on November 1, 1931, in the amount of $30 each, or a total of $150, was not paid by the Madison Park Building Corporation, or anyone in its behalf, and that the said Madison Park Building Corporation is still in default in the payment of said interest coupons; that on May 1,1932, more than 30 days after default had been made by the Madison Park Building Corporation in the payment of said interest coupons, plaintiff elected to and did declare due and payable the entire principal amount of said bonds in the aggregate principal sum of $5,000, pursuant to the terms and conditions in each of the bonds, as before set forth, and that no part of the same has been paid by the Madison Park Building Corporation; that frequent demands have been made by plaintiff upon defendants Fridstein, Harris and Jacobson to pay the principal of the bonds in accordance with the terms of the contract of guarantee set forth, but that they have refused to pay the same.

Defendants do not take issue with any of the matters of alleged fact set forth in the statement of claim, but insist that the action is premature; that plaintiff’s rights under such contract of guarantee do not inure to her until May 1, 1937, the stated maturity of the bonds. It is insisted, in the language of appellee’s brief, that “the words, ‘respective maturities therein mentioned, ’ used in the guarantee, refer .to May 1st, 1937, as to the principal, and to the semi-annual interest payment dates as to principal.” The word respective is defined by the Standard Dictionary as “pertaining or relating severally to each of those under consideration; several; particular.”

In Levy v. Barley, 211 Ill. App. 498, Gen. No. 24,132 (a published abstract of the decision) the action was upon a guaranty similar to that sued on here. The court there states that “in the instrument sued upon, the defendant expressly guarantees ‘the payment of the principal and interest on the said bonds as they severally mature. ’ The bonds, and trust deed which was executed to secure their payment, appear to be but a single transaction, and in determining the liability of defendant upon his guaranty, these instruments should be read together. Kraft v. Hora, 159 Ill. App. 363. The time of payment as fixed in the note may be controlled by a separate written agreement made at the time of the execution of the note. Hunter v. Clarke, 184 Ill. 158.” The obligation of the defendant was to pay the bonds and interest becoming due thereon at maturity, and the date of maturity is not necessarily the date specified in the bonds themselves. It may be, and we think in this case, recourse should be, had in determining the date of the maturity to the trust deed. This instrument provides that if the maker of the bonds “shall fail or refuse to pay the said bonds, or any of them, or any installment of interest thereon, when due and payable upon presentation at the office of the Metropolitan Trust & Savings Bank of Chicago in the state of Illinois, and the same shall remain unpaid for a period of 30 days, then all of the bonds secured by this deed of trust shall become due and payable.” The contention is that the action by the plaintiff was prematurely brought. We do not agree with this contention. The evidence shows that the interest was due and unpaid on the bonds at the time the action was brought, although the principal of the bond did not become due for some time thereafter. Under the trust deed, the failure to pay the interest for a period of 30 days caused the maturity of the bond if the legal holder so elected. Each of the bonds in the instant case contains the following agreement:

“It Is Further Expressly Agreed, that if default be made in the payment of any one of said bonds or coupons at the time and place when and where the same becomes due, and such default shall continue for thirty (30) days, then the said entire principal sum of this bond shall, at the election of the legal holder hereof, at once become due and payable, such election to be made at any time after the expiration of said thirty (30) days, without notice.” None of the Illinois cases cited by defendant in the instant case on his theory is in point. Levy v. Barley, supra, we deem to be directly in point and decisive.

We are of the opinion that the trial court was in error in striking the statement of claim filed in this cause. Therefore, the order striking such statement of claim and the judgment are reversed and the cause is remanded for a hearing.

Reversed and remanded.

Hebel, P.J., and Wilson, J., concur.


author: Mr. Justice Wilson

text:
    The People of the State of Illinois ex rel. Michael J. Hanrahan, Defendant in Error, v. Carlos Ames et al., Plaintiffs in Error.
    Gen. No. 37,298.

      Opinion filed October 24, 1934.
    William H. Sexton, Corporation Counsel, and Francis J. Vdrpillat, Assistant Corporation Counsel, for plaintiffs in error.
    Charles J. Sopkin and Milton 0. Manasse, for defendant in error.
   Mr. Justice Wilson

delivered the. opinion of the court.

Michael J. Hanrahan filed his petition for a writ of certiorari May 15, 1929, directed to the civil service commission of the City of Chicago, demanding a return of the commission’s record of certain charges, the hearing thereon and the order of dismissal of the petitioner from his position as sergeant of police in the classified service of Chicago. An order was entered by the superior court directing the civil service commission of the City of Chicago to make a return, which was done. At the same time, the civil service commission filed its written motion to quash the writ of certiorari and that the petition for a writ of certiorari he dismissed.

July 11, 1933, the superior court overruled the motion to quash the writ of certiorari and sustained a motion of petitioner to quash the records of the defendant as the same were returned and judgment was accordingly entered quashing the record of petitioner’s discharge from his position as sergeant of police.

The order of the trial court, among other things, includes the following1 finding1 and order:

‘ ‘ The Court finds from an examination of all of said record of the Civil Service Commission that the evidence does not establish any charge sufficient to warrant a removal of the petitioner, Michael J. Hanrahan, from the Civil Service and the commission was therefore without jurisdiction to order petitioner’s discharge from his position as sergeant in the Department of Police of the City of Chicago.

“It is therefore ordered, adjudged and decreed by the Court that the record of the Civil Service Commission of the City of Chicago as returned, which includes the evidence and the charges against the petitioner, Michael J. Hanrahan, be, and the same is hereby quashed, for naught esteemed, as if such record had never been made.”

The record filed by the civil service commission shows: first, that on June 27, 1927, charges were filed against the petitioner by the. commissioner of police of the City of Chicago, together with specifications ,of particular acts and conduct constituting the respective violations charged; second, that the respondent caused to be issued upon said charges a written form of notice directed to the petitioner Hanrahan demanding him to be and appear at Room 612 city hall on July 13, 1927, at 10 o’clock a. m. to answer and defend said charges and that a copy of such charges accompanied the notice; that said Hanrahan was served on the 2nd day of July, 1927; third, that to sustain the charges the respondents heard the sworn testimony of the witness and thereupon caused its findings to be entered of record.

The charges preferred were violations of section 15 of the rules and regulations of the police department in effect at the time. Section 15 referred to was— being absent from duty without permission.' In the specifications embodied in the charge it was set forth that the petitioner was assigned to patrol duty from midnight to 8 a. m. during the month of June 1927, and failed to report at 8 a. m. June 24, 1927, without having first secured permission to be absent.

The record of the hearing by the civil service commission shows that the hearing was continued until July 20, 1927, at which time evidence was taken and the petitioner Michael J. Hanrahan appeared in person and was represented by counsel, and was present and participated in the examination of witnesses and was found guilty of the charges contained in the specifications.

It will be noted that the petition was for a writ of certiorari and was filed May 15, 1929, a year and 10 months after the order discharging the petitioner from the service. The order of the superior court quashing the record of the civil service commission appears to have been based upon the fact that the evidence does not establish a charge sufficient to warrant the removal of the petitioner and that therefore the civil service commission was without jurisdiction to enter the order. The record of the civil service commission in filing its return to the writ of certiorari shows on its face all the necessary jurisdictional facts: First, that the charges were filed; second, that notice was served together with a copy of the charges; third, that a trial was had and witnesses heard; and, fourth, that the petitioner was present and participated in the hearing. These facts as appearing in the record of the civil service commission were amply sufficient to confer jurisdiction on that body. The court was without power to weigh and determine the evidence and the only question with which the trial court was concerned was whether or not the civil service commission had jurisdiction of the petitioner. It was not necessary to certify the evidence and the trial court was limited in its consideration to the record alone. Carroll v. Houston, 341 Ill. 531; Hopkins v. Ames, 344 Ill. 527.

Moreover, the petitioner was guilty of laches. The Supreme Court in the case of Carroll v. Houston, supra, has laid down the rule as follows: “It has been held that where great public detriment or inconvenience is likely to result from interfering with the proceeding of the inferior tribunal the writ should not issue, or if it has been improperly issued it should be quashed when the facts are presented to the court, and it should not issue after six months unless the delay is satisfactorily explained in the petition. (People v. Burdette, 285 Ill. 48; Schultheis v. City of Chicago, 240 id. 167; Clark v. City of Chicago, 233 id. 113; Blake v. Lindblom, 225 id. 555; City of Chicago v. Condell, 224 id. 595.) In People v. Burdette, supra, it was said: ‘There was nothing stated in this petition showing why the petition was not filed within six months. We see no escape, under the above authorities, from holding that the relator was guilty of laches in not filing his petition within six months after his discharge. Furthermore, we do not see why defendant in error did not, after his petition was filed, push the hearing to a speedy decision. . . . ’ ”

In the case at bar the hearing on the petition for a writ of certiorari was evidently not pushed for hearing and did not come up for decision before the trial court until July 11, 1933, over four years after the filing of the original petition in this cause. The fact that the petition for certiorari was not filed until a year and 10 months after the order of discharge, coupled with the delay in prosecuting the writ, shows such laches as to deprive the trial court of jurisdiction to entertain the proceeding. There is nothing in the petition for certiorari which in any way condones the delay in making application for the writ. Carroll v. Houston, supra; Hopkins v. Ames, supra.

The final order entered by the superior court contains the following: “Respondents waive appeal or writ of error.” It is insisted here that this was written in by the trial court after the entry of the order and without the consent of the civil service commission. A photostatic copy of the order which is contained in the record shows this part of the order to have been written in longhand while the body of the order is typewritten. It will be unnecessary for this court to indulge in any presumption as to whether it was written in before or after the order was signed, as we are of the opinion that the court being without jurisdiction of the cause the waiver of appeal or writ of error, as well as the order itself, is void.

This court in the case of Hurley v. City of Chicago, 248 Ill. App. 646 (Abst.) says:

“Therefore laches in bringing the suit is imputable to plaintiff from the averments in his statement of claim, and as such statement did not state a cause of action the stipulation of the corporation counsel consenting to the entry of a judgment did not operate to supply this defect in plaintiff’s pleading. Furthermore neither did the stipulation of counsel vest the court with jurisdiction de hors the averments of the statement of claim. The court therefore was at the time of the entry of the judgment without jurisdiction so to do.” See also 6 Corpus Juris, p. 659 et seq.

A motion to dismiss the writ of error was filed in this court on the ground that proceedings before the civil service commission of the City of Chicago are governed by statute and that no provision is made for appeal or writ of error. A number of cases were cited in support of this contention from which it is apparent that where special statutory proceedings are provided, the only manner of review is that provided in the statute creating these particular causes of action or remedies. The writ of certiorari, however, was a writ existing at the common law prior to the adoption of our constitution. We are not called upon by writ of error or appeal to review the action of the civil service commission, but only the judgment of the superior court, which court had the right by certiorari to review the proceedings of the civil service commission with the limitations as hereinbefore set forth. Appeals from orders of nisi prius courts, in proceedings of this kind, have been entertained by courts of review and we see no reason for differentiating between an appeal and a writ of error.

We received no assistance from counsel for the respondents in their counter suggestions to the motion to dismiss. Counter suggestions were filed it is true and authorities cited in support of the counter suggestions. Counsel seems, however, to be laboring under a misapprehension as to what this proceeding was as their opposition to the motion is based solely upon the proposition that a writ of error will lie in a mandamus suit. This proceeding is not, however, one in mandamus. The motion to dismiss, however, in our opinion is untenable for the reasons stated.

The superior court being without jurisdiction to entertain the proceeding, its judgment is reversed and the cause is remanded with directions to sustain the motion to quash the writ of certiorari and to dismiss the petition.

Judgment reversed and cause remanded with directions.

Hebel, P.J., and Hall, J., concur.


text:
    In re Estate of Andrew Leonard Johnson, Deceased. Joseph C. Grant, Executor of the Last Will and Testament of Said Decedent, Appellant, v. Helen W. Johnson and Julius Johnson, Appellees.
    Gen. No. 37,359.

      Opinion filed October 24, 1934.
    Wbightstill Woods, for appellant.
    Robert H. Holmes, for appellees.
   Mr. Justice Wilson

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Cook county dismissing the appeal of Joseph C. Grant, executor of the last will and testament of Andrew Leonard Johnson, deceased. The matter reached the circuit court of Cook county on an appeal from an order entered December 14, 1932, in the probate court, vacating an order settling the final account of said executor and recorded in the probate court on February 24, 1932. This order was vacated in the probate court on the petition of Helen and Julius Johnson. This petition was verified under oath. It recited that prior to January 12, 1932, the Honorable Richard V. Carpenter of Belvidere had been presiding in the probate court of Cook county, but on or about that date ceased to so hold court and returned to his home at Belvidere, Illinois; recites further that on February 22, 1932, petitioners, through their attorney, were served with a notice that the executor, by his attorney, would on Wednesday, the 24th day of February, A. D. 1932, at the hour of 11 o’clock a. m., present to the Honorable Richard Y. Carpenter at the courthouse in Belvidere, Illinois, a draft order fixing the fees to be allowed the executor and to his attorney in the matter of the administration of said estate.

The petition further charges that there later appeared upon the dockets of the probate court an order signed by Richard Y. Carpenter and dated February 24, 1932, fixing the fees of the executor and his attorney and settling the final account.

The order vacating this order of February 24th was entered by Judge Kastel in the probate court of Cook county, December 14, 1932. From this order it appears that the court had before it the petition and the records of the court and was fully advised in the premises. There is nothing else of record before us other than the petition and the order of December 14th, vacating the order of February 24th.

The probate court of Cook county had before it the records of that court and these records disclosed that Carpenter was not presiding in the probate court of Cook county at the time of the signing of the order of February 24th. The notice served upon counsel for Helen and Julius Johnson shows that it was to be heard in Belvidere, Illinois by Judge Carpenter. In the absence of any other notice in the record we assume that this was the only notice to settle the executor’s accounts. 'From the record as it appears before us, the order of February 24th was void for want of jurisdiction. A court has a right to correct orders improperly entered for want of jurisdiction. People v. Industrial Savings Bank, 275 Ill. 139.

Judge Carpenter while sitting in Belvidere, Illinois, and outside of Cook county, was without authority to enter any order in a cause pending in the probate court of C^olc county. He had severed his connections as acting judge of the prohate court of that county at the time the order was entered and it was, therefore, a nullity. United States Life Ins. Co. v. Shattuck, 159 Ill. 610.

The order of Judge Kastel, appealed from, is based upon the sworn petition, the notice of the motion to appear before Judge Carpenter at Belvidere, the records of the probate court, of which that court will take judicial notice, and arguments of counsel upon the hearing to vacate. There is nothing else contained in this record.

Every presumption will be indulged in favor of the validity of the latter order and from the facts as they appear in the record now before us, the circuit court properly dismissed the appeal.

For the reasons stated in this opinion the order of the circuit court is affirmed.

Order affirmed.

Hebel, P.J., and Hall, J., concur.