author: Moran, J.

text:
    Lake Shore & Michigan Southern Railway Company v. Gregor May.

      Railroads — Negligence — Personal Injuries — Crossings — Signals, Failure to Make—Flagman, Absence of—Contributory Negligence—Evidence—Instructions.

    1. In an action to recover from a railroad company damages for personal injuries alleged to have been occasioned through its negligence at a street crossing, this court holds as erroneous certain instructions given in behalf of the plaintiff, upon the ground that they stated no rule to govern the jury in assessing damages, and that the statement repeated in each of them that the same must not exceed a certain sum, was improper, as being likely to influence a verdict therefor.
    2. This court condemns the use by counsel in jury trials of extravagant and intemperate language, calculated to arouse the prejudice and passion of jurors and lead to unjust results.
    [Opinion filed July 2, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Abba hi. Watebman, Judge, presiding.
    Mr. Pliny B. Smith, for appellant.
    Mr. S. M. Meek, for appellee.
   Moran, J.

This action was brought to recover damages for injuries received by appellee by reason of a collision between appellant’s engine and a team which appellee was driving. The accident occurred on the evening of November 19, 1884, at the crossing of appellant’s tracks and West 55th street boulevard. There were various grounds of negligence alleged against appellant in the management of the engine and train which struck appellee, and in the failure to properly guard the crossing by signals or gates or the presence of a flagman; and the appellant on its part charged and strenuously insists that appellee did not exercise ordinary care for his own safety, and was injured by reason of his own negligence. The evidence on the issues of negligence by appellant and want of ordinary care by appellee is conflicting, and it is by no means clear how the verdict ought to be. Tet, probably, a reviewing court would not disturb the verdict if there were no misleading or erroneous instructions.

The case, however, is one calling for accurate, clear and perspicuous instructions on all material issues which were submitted to the jury for determination, and under the well established rule must be reversed if we find that misleading instructions were given by which the court can see that the jury may have been influenced to the injury of the appellant. Yolk v. Roche, 70 Ill. 297; Cushman v. Cogswell, 86 Ill. 62; Wabash Ry. Co. v. Henks, 91 Ill. 406; C., B. & Q. R. R. Co. v. Warner, 108 Ill. 564.

Among other instructions given to the jury by the court at the request of appellee were the following:

“4. The court instructs the jury that, under the laws of the State of Illinois, no railroad corporation is permitted to run upon its railroad any train of cars moved by steam power, for the transportation of passengers, unless there is placed upon the train one trusty and skillful brakeman for every two cars in the train, or unless the brakes are efficiently operated by power applied from the locomotive; and, if they believe from the evidence that this train which struck the plaintiff in this case had not -on it any such brakeman, and that the injury complained of would not have occurred had there been thereon a trusty and skillful brakeman, and if the jury believe from the evidence that the plaintiff used reasonable care to avoid the accident, then you should find the defendant guilty, and assess damages in behalf of plaintiff at whatever sum you think just and proper under the evidence and instructions in this case, not exceeding the sum of $5,000.
5. The court instructs the jury that though they may believe from the evidence in this case that the plaintiff was in some slight degree negligent, yet. if you believe the negligence of the defendant was gross in comparison with that of the plaintiff, then you should find the defendant guilty, and assess the damages in favor of the plaintiff at whatever sum you think just and proper under the evidence, not exceeding the sum of $5,000, having reference to the other instructions in this case as to the measure of damages.
6. The court instructs the jury that if they believe from the evidence in this case, and under the instructions of the court, that the defendant is guilty of wrongful acts, neglect or default, as charged in the plaintiff’s declaration, and that the same resulted in the injury of Gregor May, then the plaintiff is entitled to recover in this case such damages as the jury may deem from the evidence and proofs that the plaintiff has sustained, if any, up to the commencement of this suit; such damages as will compensate the plaintiff for his personal injury so received, and for his loss of time, in endeavoring to be cured, and his expenses necessarily incurred, if such loss of time, expense and personal injury have been proved, and yon are at liberty also to take into account any pain and suffering undergone by him up to the time of bringing this action, if any such have been proven, in estimating damages in this case, in all not to exceed $5,000.”

The instructions numbered four and five. above set out authorize the giving of damages in terms that have been frequently condemned. They state no rule to govern the jury in assessing damages. This court said of an instruction similar to those: “It does not confine the plaintiff’s right of recovery for all his losses and expenses, whether necessary or otherwise. * * * Moreover, the jury were told that the plaintiff was entitled to recover for any injuries lie had sustained, leaving the jury to include any elements of damages they might think proper.” McGinnis v. Berven, 16 Ill. App. 354.

True, the said instructions refer to other instructions in the case as to the measure of damages, and if any proper instruction had been given clearly limiting the jury to the true elements of damage the error in them might be cured; but the only other instruction relating to damages given is number six above set out, and that is subject to just criticism. It declares that the plaintiff is entitled to recover “such damages as the jury may deem from the evidence and proofs that plaintiff . has sustained, if .any,.up to the commencement of this suit;” what follows in the instruction is an enumeration of certain elements of damage, but the terms are neither in form and effect a limitation of the jury in those elements of damage named, and the result is that the jury are left at large and free to include such grounds of damage as they might think proper.

There is a further objection to said instructions. All of them contain the significant suggestion to the jury that the damages to be awarded are not to exceed the sum of $5,000. The verdict is for just $5,000. The instruction number six does limit the damages to those sustained up to the commencement of this suit, and therefore we must conclude that damages for any permanent injury, which in cases like the present usually constitute the most important basis for allowing damages, were not estimated by the jury in reaching the verdict. The conclusion is almost irresistible that the “damnable iteration” of the phrase “five thousand dollars” in all the instructions relating to damages had the effect of inducing the jury to fix on just that sum.

The Supreme Court has said of an instruction of similar import: “ By all the rules of philology, that is but telling the jury they must render a verdict for $5,000. It is true the jury did not render such a verdict, but was it not a strong persuasive argument addressed to them by the court to render a large verdict? ” C., R. I. & P. R. R. Co. v. Austin, 69 Ill. 426.

There are other errors assigned, but as they will probably not be repeated on another trial we do not deem it necessary to enter upon a discussion of them. We will merely say as to one of them, that it would be well for counsel in their addresses to juries, especially in that class of cases in which it is well understood that their clients have the ready sympathy of the jury, to confine their discussion to the evidence in the particular case, and avoid intemperate and extravagant statements of matters not pertinent and which are calculated to arouse the prejudice and passion of jurors and lead to unjust results. The judgment will be reversed and the case remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Per Ouriam.

license: Public Domain

text:
    Conrad Folz v. Jacob Nelke.

      Sanies—Insolvency of—Stockholders—Liability of, to Depositors—Res Adjudicata.
    1. In an action brought by a depositor of an insolvent bank against one oE its stockholders, who, under its charter, was liable for its debts to the extent of his stock, this court declines to interfere with the judgment for the plaintiff.
    2. A decree in a given cause governs only the parties thereto.
    [Opinion filed July 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Kibk Hawes, Judge, presiding.
    Messrs. Adams & Hamilton, for appellant.
    Messrs. Blum & Blum, for appellee.
   Per Ouriam.

Appellant, who was a stockholder to the extent of $3,000 in the German Savings Bank of Chicago, was sued by appellee to recover the balance due the latter from the bank, as shown by the pass book of appellee, in which his deposits in the bank were entered. The charter of the bank makes the stockholders individually liable for the debts of the bank to amount of their stock.

Appellant sets up the statute of limitations of five years, but as the question is precisely that determined in Shalucky v. Field, 121 Ill. 617, we are not at liberty to depart from that ruling, which is adverse to appellant.

The only other defense relied on, was a decree and certain other proceedings in a suit in chancery, to which appellant was a party, and which resulted in the payment by him of a small portion of his stock liability for the benefit of the creditors of the bank. Appellee was not a party to that suit, and received no benefit whatever from the decree therein, and the established rule that a decree binds no one who is not a party to it, must be appilied here. The judgment is affirmed.

Judgment affirmed.


author: Gabt, J.

text:
    Moses W. Gray et al. v. Benjamin Lindauer et al.

      Fraud—interest—Procuring of Debtor in Failing Circumstances to Purchase Goods from Another—Special Finding—Evidence.

    A creditor who advises his debtor to purchase goods, with the object of deriving the benefit therefrom, is not liable to the seller thereof if the debtor purchases with honest intent.
    [Opinion filed July 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Millard & Smith, for appellants.
    Mr. B. M. Shaffner, for appellees.
   Gabt, J.

This is an action on the case. Several counts are for alleged fraud by appellants, in representing one Armstrong to be worthy of credit.

In answer to a special question, the jury have found that there was no special fraud or deceit in the representation. The last count of the declaration is, in substance, that the appellants, having chattel mortgages on the property of Armstrong, who was insolvent, and intending to defraud the appellees, induced and procured Armstrong to buy on credit, goods from the appellees, with the intent on their part, of converting them to their own use by means of the mortgages, and that the scheme was successful.

The count is very long, and is a verbose attempt to plead the evidence, which, if the appellees’ view of the law be correct, would sustain a count in trover. The count is to be taken most strongly against the pleader. This is a familiar rule. People v. Swigart, 107 Ill. 494. “In the proceedings of any court, where an accusation is preferred, the minimum of allegation is the maximum required in proof.” Denman, C. J., 5 Ad. & E. N. S. 995, Francis v. Steward. The count contains no allegation of anything done by the appellants to deceive the appellees, or of any collusion with Armstrong, or that he did not buy with an honest intention and expectation to pay for the goods.

It comes to this: can an action be maintained by one who sells on credit to an insolvent, struggling honestly but unsuccessfully to retrieve his fortunes, against a third person who expects by the exercise of his power over the insolvent, to get the benefit of the purchase, and for the purpose of realizing that expectation, persuades the insolvent to purchase, and succeeds in his expectation, and the vendor remains unpaid ?

There is no precedent for such an action. Where there has been fraud by the purchaser, participated in by the defendant, the latter has been held liable. Hill v. Perrott, 3 Taun. 274; Biddle v. Levy, 1 Stark. N. P. 20; Irving v. Motly, 7 Bing. 543. But no case holds that where the purchaser bought in good faith, and therefore acquired an indefeasible title, a third person coiild be held liable for the price the purcl laser was unable to pay, on the ground that such third person, from whatever motive, had given the purchaser unwise advice for him to follow, and the adviser had derived a profit from it. The fact that there is no precedent for such an action is a strong though not conclusive argument against it. See Smith v. Hurd, 12 Metc. 371; Cunningham v. Brown, 18 Vt. 123; Rockingham v. Bosher, 39 Me. 253; Conn. Mut. v. N. Y. & N. H., 25 Conn. 265.

It-is quite needless to review the evidence. If there had been the ordinary count in trover in the declaration, and no answer by the jury to any special question in the way, whether the evidence would support a verdict for the appellees, is not now a subject of inquiry; but the answers to the special question being, in effect, such'as confine the verdict to the last count, and that being insufficient, the court might perhaps have been technically justified under the statute in entering judgment for the appellants. The statute, however, is not imperative, but at the least, the appellants were entitled to a new trial. Many other questions in the case are left untouched. The judgment must be reversed and the cause remanded.

Heversed a/nd remanded.


author: Moeaw, J.

text:
    Aaron B. Mead and Albert L. Coe v. John P. Altgeld.

      Agency—Sales—Real Property—Deposit on Contract for Purchase— Recovery of—Unsatisfactory Title—Evidence—Experts.

    1. The construction of a written agreement is for the court.
    2. The personal undertaking of a real estate agent to return a sum received by him as a payment, in case the title to certain property of his principal under contract of sale should be shown to be defective, is not inconsistent with the character of agent.
    3. A purchaser of real estate should receive a title good beyond a reasonable doubt.
    4. The sufficiency of a title is a question of law for the court and in controversies involving the same, the opinions o£ lawyers as experts should not be considered.
    5. Errors which do no harm can not be complained of.
    [Opinion filed July 2, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. A. H. Waterman, Judge, presiding.
    Messrs. McClellan, Cummins & Moulton, for appellants.
    The evidence shows that the contract for the sale of the land was between Mrs. Bay and Mr. Altgeld; that Mead & Coe, the appellants, acted only as her agents in making the sale, and that the money was paid to them as her agents That contract defined the rights of the parties to it. An agent who has acted in good faith in a transaction upon which money has been paid to him on account of his principal, can not be liable in a suit to recover back the money. Ewell on Agency, p. 419, top paging, marginal p. 312 and following pages; Shepherd et al. v. Underwood, 55 Ill. 475, where the English cases on this point are cited and commented on and the above doctrine deduced; see pp. 480-1.
    In Bamford v. Schuttleworth, II Adolphus & Ellis, 926, it is noted that the money had been paid over in that case, but the decision was not put upon that ground, one of the judges remarking that it was immaterial whether it had been paid over or not, the others putting it upon the ground that there was no privity of contract between the vendee and the agent.
    Stephens v. Badcock, 23 E. C. L. 160, is also commented on and approved by the court, which seems to have been an action against an attorney’s clerk ' for moneys collected and receipted for in the name of the attorney and the action • of the client against the clerk held not to lie.
    In Sadler v. Evans, 4 Burroughs, 1934, Lord Mansfield sustains the doctrine that the action ought to be brought against the principal, unless in special cases.
    In Colvin v. Holbrook, 2 Comstock, 126, the conclusion seems to have been arrived at that an agent receiving money for his principal in pursuance of a valid authority, without fraud, duress or mistake, is not liable in an action on behalf of the person who is ultimately entitled to the money, for neglecting to pay the same upon request and before it is paid over to the principal.
    In Costigan v. Newland, 12 Barb. 456, the same principle is recognized, and it is said the case of Colvin v. Holbrook must be regarded as settling the law in that State.
    It is laid down in 1 Parsons on Contracts, 79, that where money is paid to one as agent, to which another as principal has color of right, the right of the principal can not be tried in an action brought by the party paying the money, against the agent, as for money had and received, for the use of such party, but such action should be brought against the principal. See also King v. Hurd, 2 Ill. App. 212; Warder v. White, 14 Ill. App. 50.
    The above doctrine is stated in Ewell on Agency, top paging 421, marginal paging 313, as follows:
    “ Where money has been paid to an agent, the courts have declined to allow an action to proceed against the agent for the purpose of trying the validity of the right claimed by the principia!,” and the authorities are there cited, criticised and examined in the following pages and the above doctrine fully sustained. On page 423, top piaging, marginal p. 315, it is stated :
    “ Where an action is brought against an agent, but on the ground that the payment was made by mistake, or for the piurpose of testing a right claimed by the principal, the action will not lie.” On page 426, top paging, marginal p. 318, it is stated:
    •‘Want of privity between the agent and principal parties has often proved fatal to the right of the latter to recover money from the agent.”
    The court erred in admitting in evidence on behalf of the appellee the opinions of certain attorneys and counselors at law, as shown by the record, that the title of Mrs. Hay was not a good and marketable title.

      Whether the evidence on the part of the appellee proved the title of Mrs. Ray to be not good, which was the case the appellee was bound to make out to entitle him to recover, was a pure question of law.
    The latest case we find on the subject is Murray v. Ellis, 112 Pa. St. Rep. 485, S. C., 3 Atlan. Rep. 845. That case was an action to recover money paid under an agreement for the purchase of real estate where the buyer rejected the title as not good and marketable. The court says, as to the opinion of counsel in relation to the soundness of the title, “ The court properly rejected the opinion of William Gorman, Esq., as to the marketable character of the title, for that was a question for the determination of the court on the papers and other facts submitted to it, and the opinion of a witness, however learned, could avail nothing.”
    In Canfield v. Gilbert, 4 Esp. 221, be'ng an action to recover money deposited on purchase of real estate, Gibbs, of counsel for plaintiff, put it to Lord Ellenborough as to the plaintiff’s right to recover, that the opinion of different conveyancers had been taken on the title, who were of opinion the title was defective and ought not to be taken by the plaintiff, and asked whether it might not be sufficient for him to rely on the fact of such conveyancers advising the plaintiff not to complete the purchase, or whether it was necessary for the plaintiff to go into the title and show it was defective. Lord Ellenborough held it was necessary for the plaintiff to show the title was bad.
    The case came on for hearing at the Easter term, 1803, on verdict for the plaintiff, subject to the opinion of the court (see 3 East, 516) where thequestion of title was considered as a pure question of law. See also Brooks v. Clark, 1 Swanst. 551.
    Alpass v. Watkins, 8 T. R. 516. Action to recover back deposit money. The court considered the question of title as a question of law.
    Wild v. Foote, 4 Taunt. 334, is to the same effect.
    In Mabberley v. Robbins, 5 Taunt. 625 (an action at law), the court passed on the title.

      In Boelnn v. Wood, 1 Jacobs & Walker, 419, the court says: “ The doubts of conveyancers, whether the title is good or bad, amount to nothing.”

      “A scientific person called as a witness is not entitled to give his opinion on the merits of the case.” Jamison v. Dunkald, 12 Moore, 158.
    “ A witness can not be called and give his testimony on a mere probability.” 2 Best on Evidence, Note to Sec. 513, p. 873, citing People v. Bogers, 13 Abb. N. S. 370; Moorehouse v. Matthews, 2 Comst. 514.
    Nor unless opinion relates to matters of skill. Best on Evidence, supra/ citing numerous cases.
    But must be based on all the evidence. Best on Ev. 874.
    For reasons for limiting introduction of expert evidence, see 2 Best on Evidence, Sec. 511.
    A witness can not be asked what would have been his conduct. 2 Best on Evidence, p. 880 ; Greenleaf on Evidence, Sec. 441.
    Messrs. Brandt & Hoffman, for appellee.
    The first point made by counsel is that this action will not lie against appellants but should have been brought, if at all, against Julia M. Bay. To sustain this proposition they cite Shepherd v. Underwood, 55 Ill. 475, which holds directly the contrary. They also cite several other cases, nearly all of which are taken from the ojfinion in the case above named. Not one of the cases cited by counsel to this point tend to support the position assumed by them, and they serve no purpose in this case except to fill the pages of an argument.
    In Story on Agency, Sec. 269, the following occurs: “ In the next place, a person contracting as agent will be personally liable, whether he is known to be an agent or not, in all cases where he makes the contract in his own name, or voluntarily incurs a personal responsibility, either express or implied.” The text of this section then goes on to give many instances of the liability of an agent when he contracts in his own name, and cites scores of cases showing that appellants are liable in this case, if any one is. The terms of the contract signed by appellants expressly declare that if the title proves to be not good, the $1,000 “ will be refunded by us,” appellants, to appellee. The money was paid to appellants, and the contract expressly bound them to return it. That appellants are liable under this contract, if appellee is entitled to recover this $1,000 at all, is a proposition too elementary to receive or justify discussion.
    Appellee testified that he refused to pay the $1,000 to appellants till they agreed to bind themselves personally to return the money if the title was not good.. The court received this evidence but held that he did not consider it as in any way modifying or altering the terms of the contract. By the terms of the contract appellants bound themselves explicitly to return the money if the title was not good.
   Moeaw, J.

This action was brought by appellee to recover from appellants money which he had deposited with them for which they delivered to him a receipt as follows:

“ Chicago, March 29, 1886.
“Received from John P. Altgeld, one thousand dollars, first payment on contract for purchase of lots 4, 5, 6 and 7 in the Superior Court partition of the S. £ of B. 23 in C. T. Sub. of the W. W. -J, N. E. J, Sec. 17, 39, 14. It is understood and agreed that in case the title proves to be not good, this one thousand dollars will be refunded by us to Mr. Altgeld.
“ $1,000.. Mead & Coe, Agents,
“Per Wentworth.”

At the same time this paper was executed a contract for the purchase of these lots was made between appellee and one Julia M. Ray for $30,000. Appellants were the agents of Mrs. Ray, and delivered to appellee an abstract of title of the premises, which was examined by appellee’s attorney, who pronounced the title shown thereby to said lots not good in said Julia M. Ray. Appellee returned the abstract to appellants and showed them the opinion of his attorney, Gen. G. W. Smith, thereon, and declined to take the land unless he was given a merchantable title thereto. Appellee demanded from appellants the money mentioned in the said receipt, and though no steps were taken to perfect the title by either appellants or their principal, they refused to return the money to appellee. Thereupon this action was brought and was tried before the judge without a jury, and a finding and judgment rendered in favor of apjaellee.

Appellants’ first contention is that the contract between Julia M. Bay and appellee and the receipt given by appellants are to be construed together; that appellee knew appellants were acting as agents for Mrs. Bay in receiving and receipting for the money, and that it was received, in fact, under the contract between appellee and said Mrs. Bay, and that appellants are not liable personally on said receipt. It is for the court to construe the receipt, which is in writing, and it is very clear that in form the appellants personally undertake to refund the 81,000, in case the title should prove to be not good. Such a personal undertaking is not inconsistent with the character of agent, and it is well settled that where an agent expressly charges himself personally, he will be so held whether he is known to be an agent or not. Mechera on Agency, See. 558; Story on Agency, Sec. 269.

Whether appellants would be liable if they merely received the money for their principal and gave no personal promise to pay it back, need not be here considered. Appellants are liable on the express terms of the receipt executed by them personally to appellee. Appellants contend that it is not shown by the evidence that the title was not good.

Secondary evidence of the contents of the abstract furnished by appellants to appellee was introduced (a proper foundation having been laid for the introduction thereof) from which if appeared that block 23, in which the lots purchased by the appellee were situated, was conveyed November 18, 1851, by deed from the canal trustees to S. Lockwood Brown and James Matterson.

In 1854 Brown brought a partition suit against the canal trustees and the heirs of Joseph Matterson. The bill alleged that the canal deed should have run to Joseph Matterson as the real purchaser. A decree was entered in this partition suit which declared that the deed was made by mistake to James Matterson, that Joseph Matterson was the real pur-' chaser of the property, and directing that the canal trustees should convey to the heirs of Joseph Matterson one-half of the block, and divided the block by assigning the north one-half to Brown, and the south half to the heirs of Joseph Matterson. The abstract further showed that in 1866 the canal trustees made a deed whereby, after reciting that in 1851 they had conveyed to Brown and James Matterson, they, in pursuance to the decree of the court in the partition suit, convey the north half of said block 23 to Brown, and the south half to the heirs of Joseph Matterson.

Afterward there was a partition suit between the heirs of Joseph Matterson, by which the lots in question were assigned to Julia Matterson, now Mrs. Rav. The objection to the title arises from the fact that neither James Matterson, if there was such a person, nor his unknown heirs, were made parties to the partition suit, and that no conveyance was made from S. Lockwood Brown to the heirs of Joseph Matterson. If in fact, Joseph Matterson paid for one-half the property, his heirs should be entitled to have a deed made to them by Brown; for if James Matterson was not in existence, Brown took the entire legal title by the deed from the canal trustees. Davy v. Kemp, Bridgman R. 384; Overton v. Lacy, 6 T. B. Monroe, 13; Freeman on Co-tenancy and Part. Sec. 28. If there was such a person as James Matterson, the legal title to one-half the block vested in him, and the decree in the partition suit did not affect that title, as neither he nor his heirs were made parties.

We are of opinion that the title was not good. The rule of law is that “ a purchaser who bargained for a good title shall not be compelled to take one which is subject to suspicion. This does not mean that the title shall be good beyond a possible peradventure, for then he might never be satisfied; but it must be free from reasonable doubt. It must be a title to -which no reasonable man would object; such a one as a prudent man would not hesitate to invest his own money upon, at a full market price; such a one as will bring in the market as high a price with as without the objection.” Brown v. Cannon, 5 Gilm. 174; Parker v. Porter, 11 Ill. App. 602; Cravenor v. Hale, 27 Ill. App. 275, and Parmlee v. Head, 33 Ill. App. 134. Ho prudent man would be willing to take the title offered and pay full price for it. It was for Mrs. Bay or her agents to clear up the doubt and remove the suspicion, and they have taken no steps to do so.

Appellants’ last contention is that the court erred in admitting the opinions of lawyers as experts, to show that the title as shown by the abstract was not a marketable one.

This position of appellants is correct. The sufficiency of the title was a question of law, and.it was not competent to prove what were the opinions of lawyers or conveyancers. Parmlee v. Head, 33 Ill. App. 134; Murray v. Ellis, 112 Pa. St. 485; Canfield v. Gilbert, 4 Esp. 221; Alpass v. Watkins, 8 T. R. 516.

But while this was error, it was error that did not injure appellants. If the facts relating to the title had not been stated to the court, and the judge had nothing to rely on but the opinions of said lawyers, the judgment would have been reversed for the admission of such evidence. But the facts appear in the record. The contents of the abstract showing the title was proved to the court, and the judgment of law-rendered on said facts is correct, as we have already seen. It is only injurious error which will reverse.

The objections of appellants can not be sustained, and the judgment of the Circuit Court must therefore be affirmed.

Judgment affirmed.


author: Gary, J.

text:
    J. W. Middleton Company v. George W. Roycroft, Administrator.

      Master and Servant—Negligence of Master—Minor Servant—Personal Injury—Unguarded Elevator Shaft—Rules and Regulations—Signals— Evidence—Order “to hurry.”

      In an action by an administrator to recover for the death of his intestate, the same being alleged to have been occasioned through the negligence of his employers, this court declines, in view of the evidence, tc interfere with the verdict in behalf of the plaintiff.
    [Opinion filed July 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon-John P. Altgeld, Judge, presiding.
    Mr. Frederick A. Smith, for appellant.
    Mr. Joseph S. Hennaed, Jr., for appellee.
   Gary, J.

The appellee is the father and administrator of Joseph J. Eoycr'oft, who was a boy under sixteen years of age, employed by the appellants in their stationery, printing and binding establishment, and was killed while so employed February 17, 1887, by falling about sixty feet down an elevator shaft in the premises of the appellants. The deceased had been at work for the appellants ten days.

From the evidence in the case, it was admissible for the jury to find that the appellants had no person in charge of the elevator; the shaft was dark; the doors to the shaft opened by swinging on hinges from it, and could be opened from the outside by lifting a common latch; the deceased was sent by a superior servant of appellants up to the third floor with a form of type, and told to hurry right down to go on another errand; he was assisted by that servant in getting the form upon the elevator; when he reached the third floor, he left the elevator, shut the door, carried the form about sixteen to eighteen feet, left it, and at once returned to the elevator, opened the door and stepped off into the pit and was killed; that in that short absence another servant of the appellants, contrary to the regulations as to signals in relation to using the elevator, had, without warning, taken it upon another floor, so that when the deceased came back to the shaft, and stepped off in the darkness, the platform upon which he had stood but a few seconds before, was gone, and the signals which ought to have preceded its departure had not been given. There was testimony that the attention of appellants had been, before the accident, called to the darkness of the shaft and the want of guards to it, by the city inspector of elevators. As to none of these circumstances except the degree of light in the shaft, and the neglect to signal before moving the elevator, was there any conflict of evidence, and as to the latter, if the time the deceased was absent from the elevator was stated truly, the regulation signal could not have been given. And if the jury from the evidence did believe that the facts were as recited, it was inevitable that they should find for the appellee, because of the extremely dangerous character of this elevator and its surroundings. The negligence of the appellants was deliberate; that of the deceased, the result of the inexperience of youth, acting under the command requiring on his part haste, and without notice that the peril which he had no reason to anticipate, had, in the few seconds he was absent, come in his way.

In such a case a jury, to whom belong all questions of care and negligence, absolute, relative or comparative, will not be affected by testimony that he had been instructed how to use the elevator, or that his father had previous knowledge that he was using it, or that there were rules of the establishment habitually disregarded by everybody, that the elevator should not be used by persons going down without burdens. On the part of the appellee no instructions were given; some modifications of those presented by the appellants were excepted to, and were assigned as error, but the argument by appellants is upon the facts, and there was nothing harmful to the appellants in any of the modifications, so that it is unnecessary to review them.

The principóles which govern this case have been often recognized in this State, and in the text books. Ill. Cent. v. Welch, 52 Ill. 183; C. & N. W. v. Jackson, 55 Ill. 492; C., B. & Q. v. Gregory, 58 Ill. 272; Shear. & Red. on Neg., Sec. 213. The judgment will be affirmed.

Judgment affirmed.


author: Garnett P. J.

text:
    George S. Poppers v. Joseph H. Peterson.

      Trover—Possession—Title—Demand—Evidence—Parties,

    1. In an action of trover, the plaintiff must have, at the time of the con- ■ version, as against the defendant, a right of property in the chattel converted and the possession thereof, and must prove that while the right of possession was in him, he made a demand therefor.
    2. In an action to recover the value of certain furniture and jewelry, this court bolds, in view o£ the evidence, that the judgment in behalf of the plaintiff can not stand.
    [Opinion filed July 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Kibk Hawes, Judge, presiding.
    Messrs. L. D. Thoman and J. J. Parker, for appellant.
    Mr. J. McKenzie Cleland, for appellee.
   Garnett P. J.

Appellee sued appellant in trover to recover the value of certain furniture and jewelry, which, as alleged in the declaration, was the property of appellee and was wrongfully converted by the appellant to his own use.

The evidence, which in many particulars is very vague and unsatisfactory, we think tended to prove these facts: that about October 25, 1885, appellee borrowed $1,000 of appellant, giving several promissory notes to evidence the indebtedness, and as security therefor delivered to appellant the jewelry in question, a mortgage on appellee’s household furniture, and certain other securities which need not be particularly described as they are not involved in this litigation.

About August 5, 1886, there being then $500 unpaid on the debt, appellee told appellant that he was in some financial trouble, and the latter replied that if lie would let him have his folding beds and fixtures, he would pay him the difference and give him his property back. We assume, but perhaps without sufficient foundation, that this blindly stated transaction meant that appellant was to have the beds and fixtures as security for the debt, in place of the jewelry, and was to pay appellee the difference between the debt and the value of the beds and fixtures, and was also to surrender to him the jewelry. Whether that is what the parties meant, we are not prepared to say; but appellee placed that construction on the arrangement, and he then permitted appellant to take the folding beds, and called at appellee’s place of business, where the latter laid the jewelry on the counter with the remaining unpaid note of appellee, and producing another paper which appellee supposed to be a receipt for the jewelry, directed appellee to sign it, and he did sign it as requested.

Appellant then took the jewelry and the paper so signed, and put them into his safe, and appellee took the note. When the jewelry was put back into appellant’s safe, appellee asked him what that was for, and was, told by appellant that his creditors might make trouble; that it was all right, and appellee could get it anyway.

In this arrangement appellee at the time acquiesced, but afterward became dissatisfied and went, as he testified, several times to appellant about “this property” and that appellant refused to turn it over to him. The paper so signed by appellee on August 5th was in fact an acknowledgment of the receipt of $1,000 from appellant on the beds and jewelry. It also appears from appellee’s evidence that at some time (but he does not state when) he sold the jewelry in question to one O’Hara, and after that he went with O’Hara and demanded of appellant that he should deliver the same to O’Hara, but appellant refused to do so, and that O’Hara then canceled the sale and surrendered to appellee all his interest therein.

The burden of proving this cause of action was on appellant. In an action of trover the plaintiff must have, at the time of the conversion, as against the defendant, a right of property in the chattel converted, and the actual possession thereof (Blain v. Foster, p. 297, this volume), and he must prove that while the right of possession was in him he made demand for the property on the defendant. Cooley on Torts, 530.

Whether the sale to O’Hara was made before or after the first demand made upon appellant, is a point upon which this record gives no light whatever. If it was before any demand, the injury, if any, was suffered by O’Hara alone, and the action should have been brought by him. If it was after demand appellee should have made some proof tending to show that fact, but we find none such in the case.

If the cause of action vested in O’Hara,, no transfer thereof could enable appellee to bring suit at law in his own name, whatever may be the rule in equity. As there is no pretense of any demand by appellee after O’Hara reconveyed the jewelry, we are not required to speculate upon the question of law which would be presented if such a demand had been made.

From the views here presented, it is obvious that the judgment should be reversed apd the cause remanded.

Reversed and remanded.


author: Gaby, J.

text:
    Hubert Breier, Executor, v. Nicholas Weier.

      Administration—Gift in Prassenti—Evidence.

    1. The holder of n note duly indorsed, is legally presumed to be the owner thereof.
    2. In an action involving the question as to whether a certain note was delivered by a mother to her son as a gift in preesenti, this court, in view of the evidence, declines to interfere with a decree in the affirmative.
    [Opinion filed July 2, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. .Lobin C. Collins, Judge, presiding.
    Mr. D. Blackman, for appellant.

      Mr. J. McKenzie Cleland, for appellee.
   Gaby, J.

May 24,1886, one Joseph Frank made his promissory note to Catherine Breier, the then wife of the appellant, of whose will he is executor, for $880, payable one year after date with six per cent interest.

The appellant and his wife had been living with Frank for a short time before the note was made, but immediately thereafter went to the house of their son Sebastian, and lived with him a year or more. The old couple had had some trouble with each other, and within a few weeks of their removal to the house of Sebastian she made her will, a Mr. Warner writing it for her, under her instructions.

It, is clear that then she desired that her other sons should have her real estate, and that Sebastian should have all her personal property. She then signed an indorsement of this note to Sebastian and by stipulations between the parties, the only question in the case is whether it was tlieh delivered to him as a gift in jproesenti. There is a great mass of confused testimony from ignorant witnesses, much of it mere neighborhood gossip, but whatever uncertainty there is as to many particulars, it is quite clear that the testatrix then intended that Sebastian should, either at once have the note as liis own property, or the avails of it at her death. It is not probable, in view of the evidence, that to her mind there was any such distinction. Whether the note was then delivered to him, or taken from her possession by fraud, is the subject of conflicting evidence. The latter hypothesis involves a crime. The legal presumption of innocence is against it. 1 Taylor on Ev. 133. Being in his possession under an indorsement to him Sebastian is presumed to be the owner of the note. Farwell v. Meyer, 35 Ill. 40; Burnap v. Cook, 30 Ill. 168. These cases show that if the indorsement was in blank, the presumption would be the same. It would be useless to collate at length the mass of testimony for the mere purpose of showing that, as a result, it can not be fairly said that the Circuit Court arrived at a wrong conclusion from it. The decree must be affirmed.

Decree affirmed.


text:
    Chicago & Western Indiana Railroad Company v. John Thomlinson et al.

      Sales—Contract—Stone for Depot—Extras — Evidence—Burden of Proof—Instructions—A gency.

    In an action brought to recover a sum claimed to be due for certain stone furnished, it being alleged that the same was not included in a given contract, this court holds that the burden of proof was upon the plaintiff to establish his claim, and that the trial court erred in instructing the jury that the same was upon the defendants to show that the stone in question was furnished under the contract.
    [Opinion filed July 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Abba N. Waterman, Judge, presiding.
    Messrs. Osborn & Lynde, for appellant.
    Mr. Allan C. Story, for appellees.
   Gary, J.

The appellees, by contract with the appellant, furnished the cut stone for the passenger depot of the appellant, at Polk street. The contract was for the stone “agreeable to drawings and specifications bearing even date herewith, drawn and prepared by Cyrus L. W. Eidlitz, architect, and signed by the contracting parties.” “Signed by contracting parties” is ambiguous. “Contracting parties” is synonymous with contractors,” and if this word had been used, the common understanding would have been that only the appellees were to sign.

There was a drawing stamped with the name, profession and address of the architect, and signed by the appellees, showing the tower of the depot, the cut stone for which is now claimed as extra. The testimony agrees that that drawing was signed by the appellees in IsTew York some weeks later than it bears date, but there is a dispute whether the appellees had had an opportunity to take into account the stone shown by it, in making their calculations, and whether they were misled, by mistake or design of the architect, to suppose that they had figured upon the stone shown by it. When the time for furnishing that stone came the appellees claimed that it would be extra. The appellants denied it.

Without going into detail, it may be said that the most favorable aspect of the case for the appellees is, that they were entitled to go to the jury upon the questions whether the architect was so far agent of the appellant that, if he misled the appellees, the appellant was chargeable with the consequences; whether, in fact, he did mislead them, and whether, if the appellees were not bound under their contract to furnish the stone in question, there was any request, express or implied, by the appellant to the appellees to furnish it.

And upon all these questions the burden of proof would be upon the appellees, with certainly a good deal of doubt as to their success. Now, upon this state of the case, the court instructed the jury that the burden of proof was upon the appellants to show that the stone was furnished under the contract.

For this error the judgment is reversed, without going over the many questions made by the parties.

Reversed cmd remcmded,


author: Gaknett, P. J.

text:
    William Borden v. Catharine M. Croak, Administratrix.

      Landlord and Tenant—Lease—Condition—Lien for Rent—Death of Tenant—Claim by Landlord against Estate of—Administration—Widow's Award—Term “ Property"—Equitable Lien.

      1. The term property means that which is susceptible of present possession or enjoyment; that which is to be acquired is not property.
    2. A condition in alease, providing that the lessor shall have a valid and first lien upon the property of the lessor for rent, refers to property owned at the time of the making thereof. To reach subsequently acquired property the instrument must identify the same; failing to do so it is void for uncertainty.
    [Opinion filed July 2, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
    Messrs. Wilson & Moore, for appellant.
    The contract in the lease for a lien was a valid and binding contract.
    Mr. Borden’s claim for a first lion upon the assets of this estate is based solely on the contract entered into by Thomas F. Croak in his lifetime. The contract was concise and comprehensive. The lessor was given “ a right of distress, and also a valid and first lien for said rent, accruing and to accrue upon the property of the person or persons liable therefor.” It is not disputed that the lease was made; it is not disputed that the property upon which the lien is claimed was the property of Croak, or that he was liable for the rent; but it is claimed that the contract is not valid, or such an one as the parties could competently make. This question has been before the Supreme Court in two recent cases. In the case of Webster v. Nichols, 104 Ill. 160, a similar contract was in question. The clause in the lease provided that the rent should be a first lien on all the buildings placed on the demised premises, and upon all the property of the lessee, and the parties were endeavoring to enforce the lien by a bill in the nature of a foreclosure. The court granted the relief, and said, in the course of its opinion : “ It seems to be the clear result of all the authorities, that whenever the parties by their contract intend to create a positive lien or charge, either upon real or personal property, whether it is then in esse or not, it attaches in equity as a lien or charge upon the particular property, as soon as the assignor or contractor acquires a title thereto, against the latter.” And on page 179 the court said that it was competent for the parties to contract for the lien, and that the lien was valid as against the lessee and his assignee. In the case of the Illinois Starch Co. v. Ottawa Hydraulic Co., 17 N. E. Reporter, 486, the contract was the same. The rent was to be “ a lieu upon the said tract of land, hereby leased, and all the improvements thereon, or which may be put upon the same, which shall include machinery of every kind used upon said premises.” The bill was to enforce the lien upon the buildings and machinery by a strict foreclosure of the mortgage clause, and the relief was granted. In both of these cases the exact question at issue, and decided by the court, was the validity of a contract between a lessor and lessee, for a lien for rent, upon the personal property of the lessee. That such contracts, therefore, are valid between the parties, is the well settled law of this State.
    The lien given by the contract is enforceable against the representatives of Croak’s estate, against his widow, and against claim creditors.
    The administratrix of Croak’s estate stands in his place. She is a mere volunteer, and takes the property of the deceased subject to all equities and claims that existed against it in the hands of the deceased. Webster v. Nichols, supra, 176; Sumner v. McKee, 89 Ill. 127-132.
    In the case at bar she took the property, subject to Borden’s lien, for rent due and to accrue. If Croak, in his lifetime, had sold the property to a Iona fide purchaser, the lien would have attached to the proceeds of the sale, for he could not defeat his own contract by his own acts. Accordingly, when the court, for convenience in distribution and for the benefit of the estate, ordered a sale of the personal property, the proceeds came into the hands of the administratrix, representing, to all intents and purposes, the property sold. They were subject to the same lien. The administratrix, by her acts, could defeat it no more than her intestate.
    Messrs. Young & Makeel, for appellee.
   Gaknett, P. J.

William Borden leased to Thomas P. Croak, during his lifetime, a store in Borden Block, Chicago. 'The written lease provided that the lessor should have a valid and first lien for the rent, accruing and to accrue, upon the property of the person or persons liable therefor, and the rent was made payable monthly, in advance. Croak died June 3, 1886, two months’ rent being then due and unpaid. He was a merchant tailor, and kept upon the premises a stock of merchandise, used in his business, a large part of which was there when he died.

By agreement with the administratrix of the estate, Borden leased the premises in September following to another tenant, claiming at the time that he waived none of his rights under the original lease. In Hovember, 1886, he filed his claim in the Probate Court against Croak’s estate, for the June and July rent (waiving his claim for all subsequent rent), and petitioned the court that the rent for those two months should be declared a first lien upon the assets in the hands of the administratrix. The assets were not sufficient to pay the widow’s award, and the contest is therefore between her and the. lessor. It is admitted that the alleged lien is based solely upon the stipulation in the lease. The generality of the terms supposed to create the lien, can not escape notice. Ho property in particular is described, nor is the locality given. If we follow the construction contended for by appellant, a secret lien was created on all property, of every description, then owned or thereafter acquired, in any quarter of the globe, by the lessee.

It seems scarcely necessary to say that so broad a scope should not be given to the words of the lease, if it can be avoided without violence to the manifest intention of the parties. The word “ property ” refers, in an abstract sense, to ownership, title, estate, right, and, in a concrete sense, to the thing itself, which is owned. Anderson’s Dictionary of Law, 835. If no terms are used conducting the mind to future acquisitions, the word “ property ” refers to present ownership only.

In common acceptation “ property ” means that which is susceptible of present possession or enjoyment. That which is to be acquired is not property. The means by which its acquisition is anticipated, a contract for example, may vest a present valuable right, but can not, with any regard for the properties of language, be considered as the thing to be obtained. The word is never used to indicate a mere hope, or expectation of having property. Ho rational man thinks he has property merely because he lives in expectation of having some. If the intention of the parties was that the security should extend to subsequently acquired property, that intention ought to have been clearly expressed. Tapfield v. Hillman, 6 Man. & Gr. 245.

We think the fair interpretation of the clause in the lease is, that it was intended to operate only on the property then owned by the lessee, and as the record fails to disclose that any of the assets (consisting of a stock in trade) which come into the hands of the administratrix, were owned by him when the lease was made, the case of appellant "was not made out. Hamilton v. Rogers, 8 Md. 301. But if this conclusion is not correct there is another reason why the alleged lien can not be sustained. In any view of the matter appellant’s lien is of an equitable, not of a legal character.

The property upon which appellant is asking for the enforcement of a lien must be regarded as after-acquired property, and if he can reach any property, his right to do so is subject to this limitation, the instrument creating the lien must identify the property. Bispham’s Principles of Equity, 217; Jones on Chattel Mortgages, Sec. 172 a; Morrill v. Hoyes, 58 Md. 458.

If it is not identified, itps void for uncertainty. In Tadman v. D’Epineuel, 20 Ch. D. 758, it was held that an instrument purporting to charge “ all my present and future personalty ” to secure an indebtedness, created a lien on the personal property owned by the debtor at the time the instrument was executed, but was inoperative as to property he afterward acquired, because of the absence of identification.

In Belding v. Reed, 3 Hurl. & Colt. 955, the deed conveyed certain specified personal property, with a general clause added for the conveyance of all the grantor’s other personal property upon or about his house, farm or premises, at Reedliam or elsewhere, in the kingdom of Great Britain, and it was decided that so far as the general clause ivas concerned, the conveyance was a nullity. The same rule is recognized in Lazarus v. Andrade, 5 Com. Pl. Div. 318, and it is there considered a material point, in such cases, that neither the character of the property nor its whereabouts is indicated, and there is nothing to ear-mark it.

The principle of these authorities we believe to be sound and not in conflict with Webster v. Nichols, 104 Ill. 160, and Sumner v. McKee, 89 Ill. 127. The order of the Circuit Court is affirmed.

Order affirmed.


text:
    Mary J. Illingworth v. Catharine Burley.

      Landlord and Tenant—Recovery of Rent—Marrie■ Woman—Family Expense—Sec. 15, Chap. 68, R. S.

    The rent of a house occupied as a residence is a family expense within the meaning of Sec. 15, Chap. 68, R. S.
    [Opinion filed July 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Rufus King, for appellant.
    Messrs. Clifford & Smith, for appellee.
   Moran, J.

This action was brought to recover from appellee the rent of a house in which she lived with her husband. Tlie house was rented by the husband about the 1st of August, 1885, and it was occupied by appellee with her said husband till the date of his death, which occurred August 22, 1886. Appellee continued to reside in the house for a month after her husband’s deatn, and for that month she paid the rent, but refused to pay for the time during which her husband was living. The trial court held her not liable. The question is, whether rent of a house occupied by the family is a family expense within the meaning of Sec. 15, Chap. 68, R. S.

This section of our statute is taken from the code of Iowa, and the construction given it by the courts of that State has come to us within the statute.

Food, clothing, medicine, household and kitchen furniture, a piano, an organ, a lady’s watch and chain, all have been held to be within the statute, when such articles were shown to be provided for and actually used in the family. This court has held that a physician’s bill for services rendered to the husband in his illness, at his request, was a family expense, for which his wife was liable. Wolcott v. Hoffman, 30 Ill. App. 77. And the same was held by the Appellate Court of the Third District in the case of Cole v. Bentley, 26 Ill. App. 260.

It would seem that a house to live in is about as essential to the existence and maintenance of the family as household furniture or cooking utensils, and that rent for the use of such a house might very fairly be regarded as an expense of the family. If any distinction exists between the fees of a physician to treat, the price of the medicine to administer to, and the rent of a building to shelter the family, it has not been pointed out, and we have failed to perceive it.

We think the rent sued for was an expense of the family, and that appellee is liable therefor under the provisions of the statute cited, and for the error in denying appellant judgment for the amount of said rent the case must _be reversed and remanded for a new trial.

Hever sed and rememded.


author: Per Curiam.

text:
    Conrad C. Lenz et al. v. Chicago Lumber Company.

      Contracts—Carriage of Lumber—Breach—Evidence—Separate Judgments.

    In an action brought for the recovery of damages for the alleged failure of the defendants. to perform a certain contract touching the carriage of lumber, this court, in view of the evidence and of the fact that no material errors were committed by the trial court, declines to interfere with the verdict for the plaintiff.
    [Opinion filed July 2, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Julius S. Geinnell, Judge, presiding.
    Messrs. Schuyler & Kremer, for appellants.
    Messrs. Payne & Porter, for appellee.
   Per Curiam.

This action was brought by appellee to recover damages from appellants for a failure to perform certain contracts for carrying lumber from Muskegon, Michigan, to Chicago, during the season of 1886. One of the alleged contracts was in writing and one was verbal. The court directed the jury to allow no damages for any alleged breach of the latter contract, so the controversy, so far as it related to such contract, is eliminated from the case. There was a verdict and a judgment against appellants for damages, for breach of the written contract, and on this appeal various errors are assigned and urged for the reversal of said judgment.

A large number of witnesses were examined upon the trial and many issues of fact made, and we deem it unnecessary to go into a detailed statement of the facts, or a discussion of the various points of law raised by counsel for appellants. We have fully considered all the questions in the ease, and we are satisfied that the evidence fully supports the verdict of the jury on every material issue; that no error was committed by the court in the admission or exclusion of evidence, and none in the giving, refusing or modifying instructions, which were, in any respect, materially injurious to appellants or either of them.

The action of the court was correct in refusing to enter a separate judgment against each defendant. The act of Congress on which appellants, rely as requiring such separate judgment, has, in our opinion, no application to a case like the one presented by this record.

The judgment of the Circuit Court is fully authorized by the law and the evidence, and no error having intervened on the trial which requires that we should set aside such judgment, the same will be affirmed.

Judgment affirmed.


author: Garktett, P. J.

text:
    Addison J. Trunkey et al. v. Eric L. Hedstrom et al.

      Sales—Quantity of Coal—Failure to Deliver—Damages—Evidence— Stenographer's Transcript—Introduction of, upon Subsequent Trial— Stipulation—Death of Witness.

    1. In the absence of a statutory provision, the rule is that a deposition given by a witness at a time when he was not disqualified, may be read in chancery, or on the trial at law of an issue out o£ chancery, if he acquires an interest in the suit after giving the same.
    2. A stenographer’s transcript of the evidence of a party plaintiff to a given suit is inadmissible upon a subsequent trial thereof, the agent of the defendant with whom the contract in question was entered into having died in the meantime.
    3. In an action for the recovery of damages alleged to have arisen through the failure of defendants- to deliver a quantity of coal contracted for, this court declines, there being no evidence tending to prove that the plaintiffs were ready to pay for the same, to interfere with the judgment against them.

      [Opinion filed July 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Mr. Perry A. Hull, for appellants.
    Mr. Frederic Ullmann, for appellees.
   Garktett, P. J.

This is a suit in assumpsit, by appellants against appellees, to recover damages for failing to deliver 7,500 tons of coal, which appellants allege they purchased of appellees in 1880. The contract was made between Addison J. Trunkey and Horatio L. Pratt, agent of appellees.

On the first trial of the case, in April, 1886, both Trunkey and Pratt testified, the evidence being preserved in shorthand by a stenographer, who made a transcript of their testimony. The jury having disagreed and the cause coming on for trial again, it was stipulated that the transcript of Pratt’s testimony might be read in evidence by the defense, if it saw fit, on the second or any subsequent trial of the case. The verdict, on the second trial, was set aside, and a new trial granted. Afterward, and before the third trial, Pratt died. Trunkey thus being rendered an incompetent witness, the plaintiff, on the third trial sought the benefit of his evidence, given on the first trial, by offering so much of the transcript thereof as tended to prove the conversations between Trunkey and Pratt in reference to the contract, and made the requisite proof of the correctness thereof, but the trial court ruled the same incompetent, to which appellants duly excepted. The evidence thus excluded was material to the plaintiff’s cause of action, and was not supplied by any other proof.

In the absence of statutory provision the rule seems to be that a deposition, given by a witness at a time when he was not disqualified, may be read in chancery, or on the trial at law of an issue out of chancery, if he acquires an interest in the suit after giving his deposition. And Greenleaf in his work on Evidence, Vol. 1, Sec. 168, says: “In other trials at law no express authority has been found for reading the deposition, and it has been said that the course of practice is otherwise; but no reason is given, and the analogies of the law are altogether in favor of admitting the evidence. And as it is hardly possible to conceive a reason for the admission of prior testimony, given in one form, which does not apply to the same testimony given in any other form, it would seem clearly to result, that where the witness is subsequently rendered incompetent, by interest lawfully acquired in good faith, evidence might be given of what he formerly testified orally, in the same manner as if he were dead.” The case referred to, however, is that of a witness who was wholly disinterested when his evidence was first given, and therefore supposed to be entirely without bias or prejudice. The author does not tell us what the rule would be, when a statute like that in force in this State has been enacted, providing for the admission of the parties to the suit as competent witnesses. By the first section of our statute it is declared that no person shall be disqualified as a witness in any civil action, by reasc n of his interest in the event thereof; by the second, that no party to any civil action shall be allowed to testify therein of his own motion when any adverse party sues or defends as executor, administrator, heir, legatee or devisee of any deceased person, except in certain specified cases; by the fourth, that a party to the suit, who has contracted with an agent of the adverse party, the agent having since died, shall not be a competent witness as to any conversation or transaction between himself and such agent, except where the conditions are such that under the provisions of the act he would have been permitted to testify if the deceased person had been a principal and not an agent. The intention of the Legislature is hereby plainly expressed, and the courts can not add to what has been enacted without exceeding their judicial functions.

If Pratt had been the principal in the contract he made with appellants, his death would have disqualified Trunkey as a witness, as the facts do not bring the case within any of the specified exceptions to section 2. Nor is there anything in the statute authorizing the admission of proof of the testimony formerly given by Trunkey. It declares the cases in which lie may be a competent witness, but has nothing to say as to when his testimony, given on a former trial, is admissible, thus leaving the question as it was at common law. Taylor v. Bunker, 36 N. W. Rep. 66.

Appellants claim that although they were prevented by the exclusion of the transcript of Trunkey’s evidence from proving the contract price for the coal, yet they are entitled to recover, because they did prove by another witness the quantity of the coal contracted for, and the value thereof at the time of the contract, and at the time and place of the delivery. Conceding that the proof was sufficient on these points, the cause of action was not made out without showing appellants’ readiness to pay. Hough v. Rawson, 17 Ill. 588; Funk v. Hough, 29 Ill. 145; Kitzinger v. Sanborn, 70 Ill. 147.

The amount required to pay for the coal in question was about $40,000, but there was no evidence given tending to prove that plaintiffs were ready to pay that or any other sum.

The judgment is affirmed.

Judgment affirmed.


text:
    Postal Telegraph-Cable Company v. Charles D. Lathrop and Luther C. Marley.

      Telegraph Companies—Messages—Errorsin theTransmission of—Damages—Options—Trading in—Evidence—Instructions—Special Agents— Authority of.

    1. No neglect by a special agent to do a thing touching which he has not been instructed by his principal, will charge the latter.
    2. In the absence of evidence tending to show that an error in a telegram did not occur through natural causes, the presumption will be that the same arose from the negligence of the company.
    3. If a message delivered is in cipher, an unintelligible jumble of words having no meaning in themselves, a company is not responsible for the damages resulting from an error in its transmission, however clear the meaning might be to one having the key.

      4. If a message on its face appears to roíate to a business transaction, involving the purchase and sale of property, the company has notice thereby that it is important, and is liable for the actual damages resulting from an error in its transmission, through its negligence.
    5. In an action brought to recover from a telegraph company for damages alleged to have arisen through errors in the transmission of certain dispatches, this court, in view of the evidence, declines to interfere with the verdict for the plaintiffs.
    [Opinion filed July 2, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
    Mr. James L. High, for appellant.
    Messrs. Dexter, Herrick & Allen, for appellees.
   Gary, J.

This was an action by the appellees against the appellants for damages sustained in consequence of errors in the transmission of dispatches from appellees, in Chicago, to their agents in New York.

The course of business was that the appellees instructed, by telegraph, their agents in New York to buy or sell, for future delivery, coffee, which orders the agents executed by making in their own names, on the coffee exchange in New York, such contracts as the orders required. The agents gave the appellees no information as to the parties with whom the contracts were made, nor were such parties informed of the interest of appellees. The orders had reference to but one grade of coffee, and were numerous, both to buy and sell. When an order either way had been followed by a corresponding one the other, the execution of the latter, as between the appellees and their agents, canceled both. The agents credited or charged to the appellees the profit or loss upon both, and between themselves there was nothing left but a balance, that went into their accounts with each other. The appellees received no coffee, delivered no coffee, on any of the purchases or sales of this character.

The agents in New York in their dealings with parties there, did, when the time for performance came, if the contracts had not been set off, one against another, and the difference settled, as was usually the case, receive or deliver coffee-as their contracts required; but with that performance the appellees had nothing to do, and of it they were wholly ignorant.

The argument by the appellants now is, that as this was the uniform course of business, it must be presumed that the appellees and their agents intended, when orders were sent and received, that whatever might be done in execution of them should be done according to that course of business, and there seems no reason to dispute that conclusion; and from it they insist that such a course of business is merely gambling in legal effect, and that no cause of action can grow out of anything done or committed in it. It must be borne in mind that the orders were to be executed in New York. The statute of this State, if applicable to such a state of facts, does not govern, and no statute of New York is put in evidence. If any law makes the business illegal it is the common law, which is presumed to be in force in New York. Crouch v. Hall, 15 Ill. 263.

There is nothing in the case to indicate that actual purchase and sales were not intended; nothing indicating an intention to settle contracts at maturity or any other time, by receiving or paying the difference between the contract and the market price. The course of business contemplated buying cheap and selling dear, and where a line could be drawn that would make transactions of that character illegal, and not invalidate legitimate business, no court has attempted to say. Such dealings are sustained as legal in England—Ashton v. Dakin, 4 H. & N. 867; in Kentucky—Sawyer v. Taggart, 14 Bush, 727; and provoked no censure from the Court of Appeals of New York in Cameron v. Durkheim, 55 N. Y. 425.

In the cases in this State—Pickering v. Cease, 79 Ill. 328; Lyon v. Culbertson, 83 Ill. 33; Pearce v. Foote, 113 Ill. 228; Cothran v. Ellis, 125 Ill. 496, and perhaps some others, the Supreme Court have not settled the facts upon which they animadverted, as they appeal1 in this record.

The appellants assign as error that they were not permitted to prove an offer of the use of their line to the New York agents for the purpose of rectifying errors in the dispatches, and also that the court refused to instruct the jury that if the New York agents discovered the error in time to make a sale, without loss, of what they had bought under the erroneous dispatches, the appellees could not recover the loss. They treat these two assignments as involving the same principle. The answer is that the New York agents were in no sense, as shown by the record, general agents of the appellees, but acting in each step of the business under special instructions; and the only discretion permitted to them was in buying or selling within limits fixed by the instructions. No neglect by them to do what they had no instructions from appellees to do, would charge appellees.

The question of general and permanent interest in the case is on the measure of damages. If the appellants could have that settled as they desire, they might easily consent to let the rest of the case go by default.

The dispatches in the course of which the errors occurred, are as follows: “ Please buy one thousand August.” “Please buy in addition two thousand August, one thousand cheapest month.” “Put stop order on five thousand December at seventy cents. This order good until countermanded,” The word “two” in the second dispatch should have been “to,” and “seventy cents” in the last should have been “seventeen cents,” and were so in the originals delivered to the appellants. Now, as there is nothing in the dispatches showing to what they relate, or from which their importance can be ascertained, and as the appellants had no notice that they were important, they insist that they are only liable to refund, with interest, what they received for their transmission. Experts on both sides testified as to their opinion, whether the errors could have been caused by storms, etc. The appellants complain that they were not permitted to prove, by their witnesses, instances when errors had been so caused. The fact that the witnesses were experts did not make proof of the instances any more competent than it would have been from witnesses called for the single purpose of proving them. Such proof would have multiplied the issues, as each instance might have been the subject of conflicting testimony as to the particular circumstances of that instance.

Whether the errors occurred from causes beyond the control of the appellants, was left to the jury, with the instruction that if the jury found no evidence to the contrary, the law presumes they were caused by want of ordinary care on the part of the appellants. With this instruction appellants find no fault, as indeed they could not, the law being so settled in the first telegraph case in this State—Tyler v. W. U. Tel. Co., 60 Ill. 421.

The cases generally agree that if the message delivered is in cipher, an unintelligible jumble of words, having no meaning in themselves, the company is not responsible for the damages resulting from an error in its transmission, however clear the meaning may be to one having a key. W. U. Tel. Co. v. Martin, 9 Ill. App. 587, where many cases are cited, is an example of this class. On the contrary, if the message on its face appears to relate to a business transaction involving the purchase and sale of property, the current of authority is that thereby the company has notice that it is important, and is liable for the actual damages resulting from an error in its transmission, through negligence of the company. Tyler v. W. U. Tel. Co., 60 Ill. 421; U. S. Tel. Co. v. Wenger, 55 Pa. St. 262; W. U. Tel. Co. v. Harris, 19 Ill. App. 347; Rittenhouse v. Ind. L. Tel. 44 N. Y. 263.

The reason assigned in the last case, that if the agents of the company did not understand the importance of the message they could have inquired, does not seem very convincing, implying, as it does, that they ponder over the meaning of dispatches passing through their, hands.

Taking the whole case as this record shows it to he, the only defense for the company was in showing that the error was caused by some extraneous influence over which they had no control; failing in this, they were responsible for the actual loss resulting from their mistake. The judgment must be affirmed without further discussion of details.

Judgment, affirmed.


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    Lake Shore & Michigan Southern Railway Company v. Sarah A. Parker, Executrix, etc.

      Railroads—Negligence of—Open Switch—Personal Injuries—Joint Use by Several Roads of the Same Trach—Excessive Rate of Speed—Ordinance—Rules and Regulations.

    1. A railroad company is estopped, in an action against it to recover for personal injuries alleged to have been occasioned through its negligence, to set up as a defense that its rule as to speed was disobeyed by deceased, in the face of evidence going to show that the rate of speed in question was required by the company.
    2. In an action (o recover from a railroad company for the death of a locomotive engineer in the employ of another company, alleged to have been occasioned through the negligence of the servants of the former company in leaving a switch open, this court declines, in view of the evidence, to interfere with the verdict for the plaintiff.
    [Opinion filed July 2, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
    Mr. Pliny B. Smith, for appellant.
    There are few cases in the books involving accidents of this kind, thus indicating either that a disregard of signals by railroad employes is exceedingly rare, or else that injuries received as the result of such disregard are by common consent regarded as without remedy.
    The duty to watch for signals has been carried so far that the Supreme Court of Michigan recently decided, that if a traveler upon the highway drove upon a railway crossing in disregard of the sign-board giving notice of the track, he is guilty of such negligence as to preclude recovery for an injury received from a collision upon the crossing. Potter v. F. & P. M. R. R. Co., 28 N. W. Rep. 714.

      Chief Justice Campbell, in delivering the opinion, says: “ The sign-board was in plain sight for a long distance, and admonished them that there was a crossing before them. If they didn’t see it they were in fault for not doing so. Ho plainer warning can be devised, and no reason is given, nor is it imaginable why they didn’t stop, or in any way act upon it.” # * * * * * * * *
    “If men do not choose to heed what they ought to heed, they must bear the consequences. It is the duty of all highway travelers to keep a due lookout. There may be some conflict upon other points, but upon the plaintiff’s gross negligence there is no conflict.”
    In Morse v. Duncan (U. S. Cir. Court, S. D. Miss.), 8 Am. & E. R.R. Cases, 374, it is held that it is the duty of an engineer to watch for a signal, and stop at a flag station, and if the train does not stop on such signal the person so prevented from taking the train at that point may recover damages.
    In Lombard v. C., R. I. & P. R. R. Co., 47 Iowa, 494, it was held that where a handcar overtook and collided with another handcar going in the same direction upon the same track, that the employes upon the former handcar were guilty of negligence in not observing and obeying the signals to stop given by those upon the latter.
    In the case of C. & H. W. Ry. Co. v. Snyder, 117 Ill. 376, which arose out of a collision between a train on the track of the C. & N. W. Ry. Co. and a train on the track of the C., M. & St. P. Co., on account of a misunderstanding concerning the signal by which the passage of trains on both roads over the crossing was regulated, the C., M. & St. P. Ry. Co. asked an instruction to the effect that if the semaphore signal was given to its train to proceed, and make the crossing, and was not given to the train of the C. & N. W. Ry. Co., the jury should find for the C., M. & St. P. Ry. Co. This instruction was refused. It was contended on the trial that the signal man gave the proper signal to the train on the St. Paul road to cross, and that the engineer on the Horthwestern train negligently failed to observe'such signal, and undertook to make the crossing in disregard of it.

      The court in its opinion say: “ There was evidence introduced on the trial tending to prove that after the westbound train on the North western road had crossed, the semaphore signal was then given to the St. Paul train to proceed, and that the train under the control of Snyder had no right then to move, and under the pleadings and evidence we see no reason why the instruction was not proper.”
    The signal being displayed that the switch was wrong, nothing can excuse Parker for running through it. It was claimed, however, that the switch was obscured by smoke and steam from the engine, so that it was hidden from Parker’s view, and that this fact relieved him from the duty to regard it.
    Parker was guilty of gross negligence, if the signal which it was his duty to watch for and obey was obscured from sight, for running past the switch at a reckless and dangerous rate of speed, and not putting his train under control until he should ascertain its condition.
    He was running under circumstances of peculiar danger; he was beyond the reach of telegraphic orders, “feeling his way along,” running on his own responsibility. Numerous switches led from the main track; his train was behind time, and the switch and main track were likely to be in use; he was approaching, if not the most, one of the most dangerous points between Chicago and Englewood—a switch almost constantly in use, where one or more engines were continually at work, passing back and forth across the main track.
    Under these circumstances of more than ordinary danger, instead of running with more than ordinary care, he increased the speed of his train, and was running to make up time.
    When he approached the switch an engine and train were working upon the side track, so close to the switch that it was enveloped by the smoke and steam of the engine. This was a suspicious circumstance; one calculated to make an engineer observe special care. Knowing that this engine worked there constantly, crossing and recrossing the main track and using the switch, it would suggest at once that the switch had been recently open.

      The signal on the switch would indicate its position, but the plaintiff claims that it was obscured from view by steam and smoke. Under these highly dangerous circumstances) this fact did not prompt Parker to any exercise of care, but on the contrary, he maintained his high rate of speed, and plunged into the cloud of steam and smoke without having a care or thought as to the result.
    Approaching, as he was, one of the most dangerous points on the road, a switch constantly in use, with the suspicions circumstance that the engine was working close by it—knowing that there was a signal on the switch which should always indicate its position, but -which wras now momentarily concealed from view—the plainest dictate of prudence should have prompted him to slacken the speed of his train and put it under control until he could have seen the position of the signal which was constantly displayed for his information. But instead of taking this precaution he dashed along, with his train under such speed that it was beyond his control, and if any of the numerous switches leading out of the track should be wrong, no power could save him from destruction. He was drawing a train load of passengers, whose lives and whose safety were dependent upon his care and skill. His heedlessness would subject them to the peril of their lives, or fearful injury. And yet, with this responsibility, he dashed along with his train beyond control, with the train-load of jjassengers depending only upon the chances of the track being clear, and the switches in position.
    It has been decided in numerous cases that a high rate of speed upon a dangerous track was such negligence on the part of the engineer as to render the railway company liable to third persons injured in consequence, and such contributory negligence as would prevent a recovery by the engineer himself, if injured. I. C. R. R Co. v. Patterson, 69 Ill. 650; Same case, 93 Ill. 290; I. C. R. R. Co. v. Jewell, 46 Ill. 99; C. , R. I. & P. R. R. Co. v. McAra, 52 Ill. 296; Sweeney v. M. & St. L. Ry. Co., 33 Minn. 153; Mantel v. C., M. & St. P. Ry. Co., 33 Minn. 62; N. C. R. R. Co. v. Messino, 1 Sneed (Tenn.), 220.

      Messrs. John McGaefey and John T. Richards, for appellee.
   Gary, J.

This was an action by .the appellee under the statute, for damages for the death of John C. Parker. He was a locomotive engineer, employed by the Rock Island Company, who used, jointly with the appellants, the tracks between Chicago and Englewood, a distance of between six and seven miles. November 7, 1883, he was bringing a train of eleven cars into Chicago, and at about 4:30 p. m., being two hours late, his locomotive ran through an open switch, which led to a side track of the appellants, to which a locomotive of the appellants had passed, leaving the switch open.

This locomotive was standing on this side track, and there was evidence that smoke and steam from it obscured the target of the switch so that the deceased could not see the target, nor could he see that the rails of the switch were misplaced until too late to stop, and the result was a collision in which he was killed. He was running, as the jury have found in answer to a question, at the rate of fourteen to eighteen miles an hour, and the ordinance of the town of Lake, where the accident occurred, prohibited a speed exceeding twelve miles an hour. There was evidence that the two companies had a joint time table between Chicago and Englewood, but it was not put in evidence, the appellants objecting to its admission, but from the testimony the time allowed to make the distance seems to have been from twenty to twenty-eight minutes.

The appellants put in evidence joint rules of the companies printed on that time card as follows:

“1. Passenger trains must not ie delayed. Engineers and conductors of freight trains, and men in charge of yard trains, must not pull out on main track in advance of a passenger train due or in sight; and, in the event of their occupation of the main track, when passenger trains are delayed, must, on the appearance of passenger train, run to the nearest siding, or, if necessary, cross over to the other main track, properly protecting their trains in all cases.
2. Inasmuch as trains are liable, at all hours, to be entering the yards or sidings at reduced speed, engineers and conductors running trains or engines between Chicago and Englewood, when the view is from any cause obscured, must so control their trains or engines as to he able to stop within the range of their vision. But nothing in this will be held as an excuse for the failure to display proper signals, when trains or engines are held on the main track, and men in charge of trains or engines, when in danger of being overtaken by another train, must protect themselves by flags, lamps and torpedoes, promptly, to avoid all possibility of being run into.
3. Delayed trains, between Englewood and Chicago, must run with great caution, and at all times under full control.
4. Conductors will supply themselves with the time tables of the C., M. & St. P. By. and with joint time card of L. S- & M. S. and C., B. I. ifc P. trains, between Chicago and Englewood. Also with bridge time table, between Bock Island and Davenport.
5. All trains will approach stations with reduced speed and with care.
6. On approaching bridges, switches and passing road crossings, the greatest care must be taken.
7. A strict and faithful observance of foregoing regulations, it is believed, will enable the conductors to so govern their trains as to avoid danger or accident, as far as circumstances can be foreseen and avoided. It is therefore vastly important that, when understood, they be observed and enforced. It is earnestly hoped that this notice is all that may be necessary to insure a prompt and willing obedience to rules, as the consequences, whether good or bad, must, in a great measure, rest upon those who have the immediate charge of the trains.”

The argument of the appellants in this court is all upon facts; either as to what the jury should have done, or what instructions the court should have given as to acts or omissions constituting negligence on the part of the deceased. That argument consists of two parts: First, that the deceased was violating an ordinance as to speed, and therefore there could be no recovery; second, that he was violating the foregoing rules, with the same consequence.

As the appellants kept the time table out of the ease, the jury were justified in taking the time at the shortest testified to by any witness; but if the longest was taken, then twenty-eight minutes for six miles and a half, with three stops to make, required a speed not less than the jury found that the train was going.

Shall the appellants, by rules, require the speed, and then object that obedience to the rule was negligence? It is difficult to discuss such a question without using language inappropriate to a judicial deliverance. The defendants are estopped by their own conduct.

The deceased came to his death not by any act of his own which would have contributed to it, if the appellants had not violated their own rules, but by a peril which they put in his way, and of which he had no warning. If, in compliance with the first of the above rules, the appellants had properly protected their locomotive on the side track, the switch would have been in place, and Parker in safety. If he knew that rule, and saw the locomotive standing there, the presence of the locomotive was to him a representation by the appellants, that the switch was in place for the main track; whether the smoke from the locomotive obscuring the target ought to have caused him to doubt the truth of that representation and slow up, was a question for the jury, to which the answer would always, and ought to be, adverse to the appellants; and besides, the record shows that there were a great many switches between Chicago and Englewood; it does not show that the deceased, or any other engineer, would remember the location of each target. The presence on the side track, of the locomotive, was no indication of the place at which the switch was, that connected the main and side tracks; and if the deceased did not remember that a target stood where the smoke then was, he would not naturally expect to find one under the cover of that smoke.»

It is not the duty of this court to go over a multitude of instructions and answer arguments as to each, when upon a special question the jury have found that the target was obscured by smoke, and that smoke came from a locomotive of the appellants, the mere presence of which was a representation that the target, if it could be seen, showed the main line to be open. The judgment must be affirmed.

Judgment affirmed.

Judge Garnett takes no part in this decision.


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    Chicago, Evanston & Lake Superior Railway Company v. Simon Adamick, Administrator, etc.

      Railroads—Negligence—Personal Injuries—Crossing—Excessive Damages—Evidence—Instructions.

    1. In an action brought by a parent against a railroad company to recover for the death of a minor daughter alleged to have been killed through its negligence, this court holds, in view of the evidence, that the amount of the verdict in his behalf was unwarranted and excessive.
    2. In cases of this character instructions touching the'assessment qf damages should set forth the proper rule to be followed by the jury in arriving 'at the same.
    [Opinion filed July 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Edwin Walker, for appellant.
    Messrs. Joseph S. Kennaed, Jr., and Brandt & Hoffman, for appellee.
   Moran, J.

This action was- brought to recover for causing the death of Tillie Adamick, the daughter of appellee.

The girl was killed at a street crossing at about seven o’clock on the morning of November 30, 1887, while on the way to the factory in which she worked, by being struck by a train of freight cars which were being pushed ahead of an engine, and which, it is alleged, were run over the street crossing at great speed, and without warning.

One of the issues made upon the trial was whether the appellant was the company which was in control of the train which struck the deceased, or of the railway on which the injury occurred, and it is contended by the appellant that the evidence greatly preponderates against the finding of the jury on said issue, and it is also contended that the verdict is not warranted by the evidence upon the issues as to the care of deceased and negligence on the part of those in charge of the train. As, in the view we take, the judgment must be reversed on grounds not involving any of said issues, and the case submitted to the consideration of another jury, we shall refrain at this time from any discussion of the evidence bearing upon said points of contention.

The jury assessed the damages at- $5,000, the maximum sum allowed by the statute to be recovered for pecuniary loss by the next of kin. We are of opinion that the damages are not warranted by the evidence in this case.

The proof is that deceased was, at the time of her death, seventeen years and six months old, that she was in good health and was earning from nine to eleven dollars a week in a cigar factory. She lived with her father and mother, and besides them left as her next of kin three sisters, two of whom were married, and a third, a girl of sixteen, and two brothers, one twenty-five years old and one seven. There is no evidence that she contributed anything whatever to the support of her family, or that any member of it, or any of her next of kin, were in any degree dependent upon her. The only facts proved which authorized the allowance of more than nominal damages, were that the deceased was a minor, and left a family entitled by law to her services till she became of age. Chicago & Alton R. R. Co. v. Shannon, 43 Ill. 338.

While the damages that are recoverable in this class of cases can not be limited by fixed rules and must be left largely to the sound discretion of the jury, yet the finding of the jury must have some regard to the facts—must be based on the evidence. The utmost that a widow with a large family of children wholly dependent on the earnings of the husband for support, could recover as pecuniary damages for his death, would be $5,000, and not that, unless the rate of his prior earnings would warrant it. That can not be said to be equal justice which would fix the pecuniary loss of a father for the death of his daughter, whose earnings he had the right to claim only for six months, at the same sum. True, he might receive benefits from her after she became of age, but they would be only such as duty, affection or gratitude should move her to bestow, and in the absence of all evidence that she gave her earnings to her parent when he was by law entitled to them, there is but small basis for the conclusion that she would contribute largely to him when under no legal obligations. In the case of Andrews v. Boedecker, 17 Ill. App. 213, the proof was that a son who was killed was nineteen years and eight months old, a mechanic earning $1.75 per day, and who, up to his death, gave all his wages to his mother, who, with six brothers, three older and three younger than himself, constituted his next of kin, this court set aside a verdict for $5,000, as not warranted by the evidence. In I. C. R. R. Co. v. Welden, 52 Ill. 290, the next of kin consisted of a widow and minor children who were dependent on the deceased, who was a common laboring man, and was at work when killed, but at what wages there was no proof. The verdict of $5,000 was set aside by the Supreme Court as not warranted by the proof. The court said: “If some rule is not prescribed by which juries must be governed in such cases, the result will be in all cases a verdict to the extent of the law. The jury have no right to find arbitrarily, that the death of any husband and father results in a pecuniary loss to his widow and next of kin of $5,000.” See also, C. & N. W. R. R. Co. v. Swett, 45 Ill. 197; R. R. I. & St. L. R.R. Co. v. Delaney, 82 Ill. 193 ; I. & St. L. R. R. v. Whalen, 19 Ill. App. 116.

The verdict in this case was probably induced by the improper instruction given to the jury at the request of the plaintiff. Instruction Ho. 2 was as follows: “If the jury believe from the evidence that Lillie Adamick, while in the exercise of ordinary care, and without fault or negligence on her part, was killed by negligence of the defendant, as charged in the declaration, then the jury should find the defendant guilty and assess the plaintiff’s damages

According to what rule should they assess the plaintiff damages ? The jury were not informed by any instruction. They were set adrift upon the ocean of sympathetic emotions to which the proof of the crushing out of the life of a bright, handsome girl of seventeen by the cruel wheels of a car, would necessarily give rise in every human bosom.

The affliction of the parents and kindred appealed to them for solace, and it is not unlikely that resentment toward the defendant, the negligence of whose servants, they had found by their verdict, caused the death, influenced their estimate of the damages. But sympathy and pity can not be allowed to form the basis of the verdict in such cases, and punishment of the defendant is not within the contemplation of the statute which authorizes the action. The jury should have been given the rule of damages, and it was error to direct them in general terms to assess damages, without in such a case as this, advising them what elements they should consider in fixing the amount. In City of Chicago v. Scholten, 75 Ill. 468, the jury were told to “assess the damages at such a sum as will, in the judgment of the jury, compensate the plaintiff, and, those in whose interests he sues, for the loss of the deceased.” The court said: “But the instruction may be liable to just criticism, because of its ambiguity as to the nature of the damages the jury were at liberty to award. It should have contained some words of limitation that would have expressly restricted the damages plaintiff might recover, to the pecun iary injury sustained. Ho other damages are recoverable under this statute. The court should have added the qualification indicated. In its present form, it stated the rules as to damages recoverable in such actions, too broadly, and may have made the impression damages could be awarded for bereavement, and by way of solace for the affliction suffered.” We think this language of the Supreme Court applicable in condemnation of the instruction given in this case. The judgment will be reversed and the case remanded.

Reversed and remanded.

Gary, J., having tried the case in the court below, takes no part in the determination of the same in this court.