author: Mr. Presiding Justice Friend

text:
    People of State of Illinois ex rel. Antonia E. Rago, Appellee, v. Harry A. Lipsky et al., Members of Board of Election Commissioners of City of Chicago, Appellants.
    Gen. No. 43,166.

      Heard in the second division of this court for the first district at the October term, 1944.
    Opinion filed November 6, 1945.
    Beleased for publication November 20, 1945.
    Cassius M. Doty, of Chicago, for appellants.
    Urban A. Lavery, of Chicago, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

On April 4, 1944 plaintiff filed a petition in the superior court for a writ of mandamus against the members of the Board of Election Commissioners of the City of Chicago to require them to permit her to remain registered as an elector and to vote under her maiden name of Antonia E. Bago, notwithstanding her marriage on February 12,1944 to one William C. MacFarland. Defendants challenged the sufficiency of the petition by a motion to strike, which was denied by the court, and they were thereupon ordered to plead or answer within a day certain. In their verified answer they sought to justify their action in ordering cancellation of plaintiff’s, registration as an elector under her maiden name and in notifying her that they would refuse to permit her to remain registered and to vote under her maiden name or to vote without registering anew in accordance with the provisions of section 6-54 of the Election Code of 1943 (Ill. Rev. Stat. 1943, ch. 46 [Jones Ill. Stats. Ann. 43.670]). The cause was then continued to April 20, 1944 and by stipulation was submitted to the court on (1) plaintiff’s verified petition, filed April 4, 1944; (2) defendants’ motion tó dismiss plaintiff’s petition, filed and overruled April 6, 1944; (3) defendants’ answer, filed April 10, 1944; and (4) a brief written stipulation of additional facts, filed April 20, 1944. Pursuant to hearing the court awarded plaintiff a writ of mandamus commanding and directing defendants as follows :

“A. Said defendants are ordered, directed and commanded forthwith to restore the records of registration of the petitioner and relator under the name of Antonia E. Rago to the active registration records and files of the Board of Election Commissioners of the City of Chicago, and particularly in Ward 8, Precinct 30, of the said City and to cease and desist the efforts and demands of the said Board that the petitioner and relator, Antonia E. Rago, must and shall register anew in the said precinct, ward and city, under another name than Antonia E. Rago; and that she specifically be not required by the defendants to register anew because of her marriage on February 12, 1944, to William C. MacFarland.

“B. And the defendants are further ordered, directed and commanded, notwithstanding the marriage of said petitioner and relator to William C. MacFarland on February 12, 1944, and without the registration of said petitioner and relator anew subsequent to her said marriage, hereafter to recognize and accept the registration of said petitioner and relator in the said precinct, ward and city under her name of Antonia E. Rago for succeeding elections so long as she shall. be otherwise qualified to register and vote or until her registration shall otherwise have been changed or modified pursuant to law,”

Defendants appeal.

From the stipulation of additional facts it appears that Antonia E. Bago is. a member of the bar of the State of Illinois, having been admitted to practice in the year 1938. She holds a certificate of admission from the Supreme Court of Illinois under that name. She is also admitted to practice in the Federal courts in Chicago and in the Supreme Court of the United States, and in each instance her certificate of admission likewise runs to her under that name. She is listed under her maiden name in Gunthorp’s Legal Directory of Chicago, the Chicago Telephone Directory, the Chicago telephone “Red Book” and in Martindale-Hubbel’s Rational Legal Directory. For-more than six years she has maintained her own law office in Chicago under the name of Antonia E. Bago, the lease of her office having been executed under that name, and her name appears in that form as an attorney at law both on the door of her law office and on her stationery letterheads which she uses in her professional business. She resides at 7848 Dobson avenue in the 30th precinct of the 8th ward of the City of Chicago, where she has lived substantially all her life, and voted under her maiden name since becoming of lawful age. On February 12, 1944 she married one William C. MacFarland, a mining engineer practicing in the City of Mexico, who ‘ ‘ expressly approves ■ of her plans” to continue her practice of law and her other business affairs under the name of Antonia E. Bago.

The ultimate question presented is the true meaning and intent of section 6-54 of the Election Code which provides that “any registered voter who changes his or her name by marriage or otherwise, shall be required to register anew and authorize the cancellation of the previous registration.” Implied in the interpretation of' that section and its application to the facts in this case is the determination (1) whether the name of a registered woman voter is changed within the meaning of the statute by her marriage; (2) whether the provisions of section 6-54 are mandatory so as to disqualify a registered woman voter from continuing to register and vote under her maiden name after her marriage, or whether such voter may choose either to register and vote under her maiden name or to register anew under her marital name; and (3) whether under the undisputed facts in the record it became the duty of defendants, upon being informed as to plaintiff’s marriage and change of name, to cause her registration under her maiden name of Antonia E. Bago to be cancelled and removed from the precinct registration lists.

Notwithstanding petitioner’s contention to the contrary, it is well settled by common-law principles and immemorial custom that a woman upon marriage abandons her maiden name and takes the husband’s surname, with which is used her own given name. The general rule is thus stated in 45 Corp. Jur. 368, 38 Am. Jur. 600, 35 Am. Law Rep. 417, and innumerable cases cited and discussed by defendants. In Freeman v. Hawkins, 77 Tex. 498, 14 S. W. 364, the court held that constructive service in the maiden name of a married woman was invalid, saying that “On the marriage of Mary E. Bobison the law conferred on her the surname of her husband. Bish. on Mar. and Div., 704. A citation, whether to be served personally or by publication, must contain the names of the parties to the action. ... We are of opinion that a citation by publication requiring ‘Mary E. Bobison’ to be cited and to appear was not sufficient to give the court jurisdiction to render a judgment that would bind ‘Mary E. Freeman.’ ” In Chapman v. Phenix Nat. Bank, 85 N. Y. 437, plaintiff bought certain shares of stock which were issued to her under her maiden name, she not having been married until two years later. Subsequently a United States marshal, acting under the confiscation acts passed during the Civil War, confiscated her dividends and stocks. The proceedings were conducted in her maiden name of “Ver S. Moore,” and the plaintiff seeking to recover the dividends and stocks confiscated, claimed that the proceedings were invalid because she had been deprived of all notice. In supporting her contention the court said: “For. several centuries, by the common law among all English speaking people, a woman, upon her marriage, takes her husband’s surname. That becomes her legal name, and she ceases to be known by her maiden name. By that name she must sue and be sued, make and take grants and execute all legal documents. Her maiden surname is absolutely lost, and she ceases to be known thereby.” In Bacon v. Boston Elevated R. Co., 256 Mass. 30, 152 N. E. 35, the facts disclosed that plaintiff was married in 1921. She registered her car in 1923 under her maiden name and subsequently in that year she and her husband were injured in an automobile accident through the negligence of the defendant. Nevertheless, the court denied recovery on the ground that since the automobile was not properly registered it was a nuisance on the highway, saying that “when she applied for registration of the automobile in 1923 she did so in a name that was not hers; .... As matter of law after her marriage in 1921 her legal name was Alice W. Bacon. . . . The statute . . . contemplates that a motor vehicle shall be registered in the name of its owner. ... It is manifest from the uncontradicted evidence that at the time of the accident the automobile was not legally registered and was a nuisance upon the highway, which precludes recovery by the owner.” In the case of In re Kayaloff, 9 F. Supp. 176 (1934), it was held that a certificate of naturalization should not be issued to a married woman in her maiden name, notwithstanding the fact that she was a musician well known professionally by that name. She sought naturalization in her maiden name because she feared financial loss in the event her naturalization certificate were issued in her husband’s surname and a discrepancy be created between her naturalization certificate and her musical union card. In deciding that the petitioner had changed her name by marriage and could be naturalized only in her marital name, the court said, among other things, that “as all are well aware, many professional women of note and standing, and who are married, are known in private life by the surname of their respective husbands. In the artistic circles in which such women move, they are known by their stage or professional names. It is my judgment that none of them has been damaged professionally by the fact that, upon marriage, she took the surname of her husband. I am not convinced that any loss will accrue to petitioner if she be denied a certificate in her maiden name,” citing the early New York decision of Chapman v. Phenix Nat. Bank, supra.

Neither of the parties has cited any Illinois decision directly in point, but the principle is clearly and fully established by the foregoing and other authorities cited in defendants’ brief, wherein the courts have under .varying facts and circumstances consistently held that by custom and "authority a woman, upon her marriage, takes her husband’s surname. There is nothing, however, in any of the Illinois cases which indicates any lack of adherence by Illinois courts to the established principles of the long and well-settled common law. In fact, the very statute now under consideration supports defendants’ position that upon marriage and by the fact of marriage alone a woman changes her name so that her maiden name is lost and her new name consists of her own given name and her husband’s surname. The statute declares that any registered voter who changes his or her name by marriage or otherwise shall be required to register anew. The provision is general and includes all changes of name whether, by court decree or by voluntary adoption. It expressly recognizes a change of name by marriage, and since it is only in the case of married women that there is any recognized custom or rule of law whereby marriage effects a change of name it must logically folluw that when the legislature expressly referred to the fact that the name of a registered voter might be changed by marriage it had in mind the long-established custom, policy and rule of the common law among English speaking peoples whereby a woman’s name is changed by marriage and her husband’s surname becomes as a matter of law her surname.

The remaining and principal question for determination involves the effect of section 6-54 of the Election Code upon the manner in which married women shall register and vote in Illinois. Petitioner argues that that section does not in fact require a woman registered under her maiden name to register anew after her marriage under her marital name unless she chooses to regard her name as having been changed by her marriage, and to adopt her married name for voting purposes, and the able trial judge seems to have adopted that view when overruling defendants’ motion to dismiss the petition, stating that in his opinion section 6-54 “amounts to nothing more than a request that the name be changed.” In other words, petitioner and the court took the position that the section in question could be interpreted as directory and not mandatory. If that were the correct interpretation to be placed upon the statute, it would permit the act to be obeyed or disobeyed at the option of axiy voter who changes his or her name by marriage or otherwise, and the law would in effect become a nullity. The statute is clear and unambiguous. It requires reregistration by any registered voter who changes his or her name for any reason or by any means, whether by marriage, by judicial decree or by voluntary adoption of a new name without judicial proceedings; and although we are not concerned with the reason underlying the legislature’s enactment of the so-called Permanent Registration Law which requires any registered voter who changes his or her name by marriage or otherwise to register anew in the new name and authorize cancellation of the previous registration, it appears obvious that the provision was intended to prevent fraudulent duplication of registrations, and the question whether the dangers arising from such duplication are sufficient to make this reregistration provision desirable is, of course, a matter of legislative discretion.

Whatever other considerations may enter into a discussion of the desire of a married woman to pursue a professional career under her maiden name and its remunerative effect upon her, the only issue here presented is the meaning of a positive law regulating the exercise of a statutory privilege. The right to register and vote is not a natural or inherent right, and the legislature may impose reasonable limitations on .the right of suffrage. It is well settled that the right to vote is conditional and can be exercised only upon compliance with statutory requirements. Clark v. Quick, 377 Ill. 424. Compulsory registration as a prerequisite to the right to vote has been in force in Chicago, and all other cities which have adopted the City Election Act, since 1885, and the provisions in section 6-54 requiring every voter who changes his or her name by marriage or otherwise to register anew in the new name and authorize cancellation of the previous registration, were adopted by the legislature as part of the City Election Act in 1936. That the legislature may establish registration requirements which place reasonable limitations on the right to vote has long been the well-settled rule. Pope v. Board of Election Com’rs of East St. Louis, 370 Ill. 196; Clark v. Quick, supra.

It would seem to us to require no extended argnment to conclude that the provisions of section 6-54 are imperative and show on their face that any voter who changes his or her name by marriage or otherwise is disqualified from remaining registered and voting under the former name and must, in order to preserve the right to vote, reregister in the new name. If petitioner were permitted to ignore her change of name by marriage and continue to remain registered and to vote under her maiden name, it would follow that any voter, man or woman, whose name is changed by judicial proceeding could likewise ignore that change and continue to remain registered and to vote under the former name, and the same would be true as to any voluntary change of name without judicial proceeding. Such a situation would promote fraud and confusion and make the provisions of the statute a nullity.

Directing attention to the precise language of section 6-54, we find that it states imperatively that any such voter “shall be required to register anew,” and the apparent intent of the legislature that this should be mandatory is emphasized by the further direction that he or she shall ‘ ‘ authorize the cancellation of the previous registration.” In other words, only one legal form of registration is to be permitted to any voter whose name is changed, and it is to be in the new name. Since the right to register and vote is not an inherent right but a conditional privilege which may be exercised only upon compliance with the law, it seems clear to us that section 6-54 prescribes how that conditional privilege may be exercised by directing a single course of action and implying a prohibition of the exercise of the privilege in any other way.

Petitioner emphasizes two authorities, one from Michigan and the other from Pennsylvania, which she characterizes as squarely in point as sustaining her right to continue to be registered under her maiden name. The Michigan citation is an attorney general’s opinion construing the Permanent Begistration Act of that state and appears in the Biennial Be-port of the Attorney General, Michigan, 1922-23, page 138. In that opinion he states that a woman would not by marriage lose the rights she had secured by reason of registration under her maiden name, if her qualifications as an elector in the place where registered, remained the same after marriage. Our Supreme Court held in Peoples Gas Light & Coke Co. v. Ames, 359 Ill. 152,' that the opinion of the attorney general of another State is a circumstance that is entitled to little weight in arriving at the intention of our legislature. Moreover, it appears from petitioner’s brief that the registration laws of Michigan did not contain any imperative provisions similar to those of section 6-54, and the attorney general was merely construing a provision that stated “any person not already registered who possesses the constitutional qualifications of an elector . . . may make application for registration”; and he was of the opinion that under that section a woman qualified to vote, who was in fact registered under her maiden name, was not to be deemed a person “not already registered.” It does not appear from the attorney general’s opinion or in any discussion contained in petitioner’s brief that the Michigan Begistration Law contains any provision requiring a registered woman whose name was changed by marriage to register anew under her marital name. The Illinois statute expressly so provides.

The decision cited and relied upon by petitioner is Egerter’s Appeal, 32 Pa. Dist. & Co. Reports 138. In that case petitioner had been married and divorced. After her divorce she chose to resume the use of her maiden name, and having changed her name she demanded the right to have the registration lists corrected so as to cancel the use of her former marital name, and permit her to be registered under the name she had resumed. Our Supreme Court held in Reinken v. Reinken, 351 Ill. 409, that a divorced woman could, at her option, either continue to use her marital name, including the use of her husband’s surname, or could voluntarily change her name after divorce by resuming the use of her maiden name. The Pennsylvania court merely held that a divorced woman had the same optional right with respect to the choice of her former name, and the petitioner in that case having changed her name was entitled to demand of the election officials that they make a corresponding change in her designation on the registration lists. In other words, the petitioner in the Pennsylvania case was demanding, and was permitted by the court to demand, the right to do that which plaintiff in this case has refused to do even though commanded by the imperative language of section 6-54, reregister after changing her name both in fact and in law by her marriage.

Although petitioner places considerable reliance upon the additional stipulated facts showing that she had for some years practiced her profession under the name of Antonia E. Bago, that she had become commonly and widely known in the neighborhood as an attorney at law under that name as evidenced by a “bronze plaque or professional sign, about 18. inches square, fastened on the front house wall of her home” in Chicago, that she had under her maiden name taken an active part in the political activities of the neighborhood, had been admitted to practice in various courts and had certificates issued to her in that name, and that she would suffer substantial damage in respect to her professional reputation if she were not permitted to vote under her maiden name, in the view we take all these facts are immaterial and irrelevant to any of the issues in this cause and have no bearing whatever upon the duty of the plaintiff to register anew in accordance with the statute in order to preserve her right to vote as a registered and qualified elector in this State. So far as her professional pursuits are concerned, she is of course at liberty to use any name that she chooses. Since we hold that her name was changed by marriage, the plain provisions of section 6-54 are mandatory and disqualify her from continuing to remain registered and to vote under her maiden name; and it would follow of course that it was the duty of defendants, upon being informed as to her marriage and change of name, to cause petitioner’s registration to be cancelled and removed from precinct registration lists.

In view of these conclusions we think the court erred in commanding defendants to restore plaintiff’s registration under her maiden name of Antonia E. Bago and thereafter to permit her to be registered and to vote under that name for succeeding elections, notwithstanding her marriage and without requiring her to register anew under her marital name as provided by law. The judgment order of the superior court is therefore reversed.

Judgment order reversed.

Scanlan and Sullivan, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Edwin L. Bennett, Appellee, v. Chicago and Eastern Illinois Railroad Company, Appellant.
    Gen. No. 43,329.
    Heard in the second division of this court for the first district' at the February term, 1945.
    Opinion filed November 6, 1945.
    Beleased for publication November 20, 1945.
    Rawlins & Wright, of Chicago, for appellant; Lee W. Carrier, of Chicago, of counsel. •
    Wyckoff & Tarpey, of Chicago, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

,On May 9, 1943 John Henry Deck and Fee Deck, his wife, both of whom resided in Hoopeston, Vermilion county, Illinois, came to their deaths at or near Hoopeston as a result of a crossing accident in which their automobile and a Chicago & Eastern Illinois Railroad Company train were involved. Thereafter, on May 26,1943, petitions for letters of administration were filed in each estate in the probate court of Vermilion county, and on June 18 Ernest Deck, the brother of John Henry Deck, was appointed administrator of the estates of both decedents. On June 28, 1943 the administrator filed petitions and was appointed administrator of both estates in the probate * court of Cook county. On the same day he entered into a written agreement, as administrator, with the plaintiff, Edwin L. Bennett, a Chicago attorney, retaining him “to prosecute and/or settle all suits and claims for damages against C. & E. I. Railroad on account of personal injuries and property damages arising out of an accident” which resulted in the death of the two decedents, and wherein he agreed to pay Bennett as compensation for his services a sum equal to one-third of any amount realized from said claims, either by settlement or judgment. All the children of the decedents were minors and also resided in Hoopeston, Vermilion county.

On August 5, 1943 Robert Rodman filed a request in the probate court of Vermilion county to be relieved as bondsman for Ernest Deck as administrator, and 11 days later, the court ordered Rodman released and appointed Leo W. Burk guardian ad litem and special attorney for one of the heirs in the military service. September 7, 1943, by order of the probate court of Vermilion county, the appointment of Ernest Deck as administrator was revoked and canceled, and on the same day, Laura Deck, mother of John Henry Deck, deceased, filed a petition in the probate court of Vermilion county for the appointment of Harry Hamilton as administrator to succeed Ernest Deck. At the same time Belle McBride, mother of Fee Deck, deceased, likewise petitioned the court to appoint Harry Hamilton as the administrator of her daughter’s estate, and the court on that day entered an order appointing Hamilton as administrator of both estates, and he forthwith took his oath and filed his bond, which was duly approved.

Thereafter, on September 11, 1943, Hamilton as administrator filed a petition in the probate court of Vermilion county for leave to settle the claim against the Chicago & Eastern Illinois Railroad Company in the estate of Fee Deck for $1,750, and Burk as guardian ad litem recommended that the settlement be approved. On the same day Belle McBride, mother of Fee Deck, filed her petition asserting that such a settlement would be to the best interest of the estate and should be approved. Also on September 11 Hamilton as administrator petitioned the probate court to settle the claim in the estate of John Henry Deck for the like sum of $1,750, and such settlement was recommended by Burk as guardian ad litem. October 9, 1943 the probate court of Vermilion county entered an order authorizing settlement with the Chicago & Eastern Illinois Railroad Company in the estate of both decedents for the sum of $1,750 each, to which Laura Deck and Burk as guardian both consented. After the settlements were approved October 9, 1943, the railroad company gave Hamilton, the administrator, two drafts for $1,750 each and obtained releases from him. However, no release of lien was taken from plaintiff, Edwin L. Bennett, who was unaware of the settlements until after they had been fully consummated. It is conceded that after plaintiff was retained on June 28, 1943 by the first administrator to prosecute or settle the claims of both estates against the Chicago & Eastern Illinois Railroad Company, he served notice on July 7, 1943 in writing, in compliance with the Attorney’s Lien Act, (ch. 13, par. 14, sec. 1, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 9.13]) stating his interest in the matter and claiming a lien on both claims. Subsequently, on January 7, 1944, after he had been apprised of the settlements made and approved by the probate court of Vermilion county, plaintiff filed his petition in the superior court of Cook county setting forth the essential facts hereinbefore related, alleging that in pursuance of his contract he caused a complete investigation to be made of the accident and entered into negotiations with the railroad company with respect to the settlement of said claims, that he acted with due and reasonable diligence in the prosecution and handling of the mutters entrusted to him, and performed all the acts required of him, but that the railroad company has refused to honor or recognize his attorney’s lien, and that consequently he claims to be entitled to the contingent fee provided for in his contract with the first administrator. After the railroad company had filed its answer, the matter proceeded to a hearing upon the pleadings and oral testimony adduced by both parties . touching principally upon the negotiations for settlement carried on between plaintiff and agents of the railroad company, prior to the time that the successor administrator had been appointed. The court found the issues for the plaintiff and awarded him judgment in the sum of $1,166.66, "being one-third of the aggregate settlements of both claims, from which the railroad company has taken an appeal.

There is substantially no dispute as to the salient facts as hereinbefore set forth, and as already stated, the railroad company concedes that a written contract was entered into between Bennett and the first administrator and that due notice of lien was served by Bennett upon the railroad company. As the principal ground for reversal it is urged that “The petitioner did not have a valid or enforcible lien, as the Attorney’s Lien Act of Illinois does not give an ad ministrator authority" to make a contract on a contingent basis so as to charge the amount recovered on account of an alleged wrongful death with an attorney’s lien,” and in support of that contention defendant cites and relies upon four Illinois decisions: Schottler v. McArdle, 174 Ill. App. 125, Mercer v. Chicago City R. Co., 174 Ill. App. 234, Ryan v. Chicago M., St. P. & P. R. Co., 259 Ill. App. 472, and Coyle v. Velie Motors Corp., 305 Ill. App. 135. In the Mercer case suit was brought for attorney’s fees against an administrator, and the court held that the Attorney’s Lien Act of 1909 does not give an attorney a lien on funds held by an administrator, since the administrator has no authority to charge such funds with payment of attorney’s fees, and as a basis for its decision the court said: “we think it is clear . . . that no such lien attaches to a fund recovered by an administrator for the benefit of the heirs of a deceased person. That the defendant from whom the fund is recovered may he required to account to the attorney if his rights are ignored after notice thereof was held in Standidge v. Chicago Railways Co., 254 Ill. 524. . . . The lien here sought is against the plaintiff, who sued [out a writ of error] as administrator.” (Italics ours.) That case not only does not sustain defendant’s position, but holds directly to the contrary. Schottler v. McArdle evidently did not involve an attorney’s lien because the court points out that the attorney’s lien statute became effective July 1, 1909, which was three year's after the rights of the parties to the suit were fixed. In the Coyle case an attempt was made to assert a lien against the estate, whereas in these proceedings the petition does not seek to charge the funds of the estate but was brtiught against the railroad defendant under a statute designed to protect attorneys against settlements in contravention of their rights. With respect to the Ryan decision, defendant’s counsel say that it is “the only Illinois case . . . which can be said to make any departure from this doctrine.” In that case the court held the contract for fees “binding and valid,” presumably because the administratrix, Mrs. Dow, was also the sole surviving beneficiary of the deceased. None of these cases go any further than to hold that the Act of 1909 does not give an attorney a lien on funds held by the administrator because the latter has no authority to charge such funds with payment of attorney’s fees. None of the decisions holds that a contract between the administrator and an attorney is an invalid undertaking. It frequently happens, as in this proceeding, that the sole asset in the estate consists of a chose in action for wrongful death, and it therefore becomes the duty of the administrator to investigate the circumstances of the accident, determine the question of liability and either institute suit or settle the claim, and for the accomplishment of either of these purposes it is incumbent upon him to engage the services of an attorney. It follows that in doing so it is proper for him to enter into a contract with his attorney with respect to compensation, and since the question of liability may in some instances be doubtful, it is the common practice to engage counsel on a contingent basis. Counsel cite no cases and we know of none that holds that such an agreement is invalid* and as a matter of fact it has been common practice for administrators to enter into them. Nor do we think it was incumbent upon the administrator to file a petition or motion in the probate court of Vermilion county to secure the approval of the contract for legal services. Moreover, in this proceeding the first administrator was specifically authorized to prosecute the claim, as appears frqm the following language contained in the letters of administration: “Know all men by these presents that Ernest Deck has been appointed Administrator of the estate of John H. Deck, deceased, who died on the 9th day of May, 1943, and is authorized to sue for and collect the personal estate of and debts due the decedent, and is authorized to perform all duties imposed on him so far as there is property and the law charges him; and to do all other acts now or hereafter required of him by law. ’ ’ The above also applies to the estate of Fee Deck, deceased. Assuming that the first administrator had succeeded in settling the case with the railroad company, the approved practice would have required him to petition the probate court for approval of the settlement and to pass upon the contract with his attorney and determine the amount of fees to be allowed, and if the court had approved the settlement and allowed attorney’s fees for services rendered in bringing it about, we know of no authority that would have precluded the court from authorizing the administrator to charge the funds of the estate with payment of fees; and of course the railroad company, which would be required to pay the amount agreed upon and approved by the court, into the hands of the administrator, could not raise the question of the validity of such a contract if the court approved it and made the orders necessary to carry it into effect.

In view of our conclusion that plaintiff’s contract with the first administrator was a valid undertaking, and that the railroad company had knowledge thereof and notice that he claimed a lien by reason thereof, it would logically follow that when the railroad company settled the claim with the second administrator without notifying plaintiff, it did so at its peril and should therefore be subjected to the liability contemplated by the statute, because under ch. 3, par. 441, of Administration of Estates (Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 110.538]) “When the letters of án executor, administrator . . . are revoked, all acts done by him according to law prior to the revocation of his letters are valid.”

Several other questions are raised and argued by the railroad company, but its counsel was frank enough to say on oral argument that the determination of the foregoing proposition would be conclusive, and therefore it is unnecessary to discuss the other points.

For the reasons indicated we are of opinion that the trial court was correct in its rulings, and that the judgment should therefore be affirmed. It is so ordered.

Judgment affirmed.

Scahlah and Sullivah, JJ., concur.


author: Mr. Justice Scanlan

text:
    William W. Howard, Appellee, v. Baltimore & Ohio Chicago Terminal Railroad Company, Appellant.
    Gen. No. 43,279.

      Heard in the second division of this court for the first district at the December term, 1944.
    Opinion filed November 6, 1945.
    Rehearing denied November 20, 1945.
    Released for publication November 20, 1945.
    Rawlins & Wright and E. W. Lademann, all of Chicago, for appellant; James F. Wright, of Chicago, and F. W. Johnson, of counsel.
    Joseph D. Ryan and Louis P. Miller, both of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is an appeal from a judgment in a personal injury case upon a verdict of the jury finding defendant guilty and assessing plaintiff’s damages at $50,000.

It was stipulated that at the time of the accident defendant was engaged in interstate commerce and transportation and in intrastate commerce and transportation and that plaintiff was then an employee of defendant and in the performance of his duties in interstate commerce. The complaint is based solely upon the Federal Employers’ Liability Act and the Federal Safety Appliance Act, and the right of action is predicated upon an alleged violation of the said Appliance Act. In cases brought in the State courts under these statutes the law announced by the Federal courts that bears upon said statutes is controlling. (See Bailey v. Central Vermont Ry., 319 U. S. 350.) Under the said Acts neither contributory negligence nor assumption of risk can be interposed as a defense.

Plaintiff states his theory as follows: “Plaintiff’s theory is that he [a switchman] was required to open the knuckle on a standing freight car, so that a moving car could be coupled to it. He attempted to operate the pin lifter in the usual manner, but the apparatus, being defective, stuck and the pin could not be raised. After repeated unsuccessful attempts, plaintiff finally stepped over with one foot between the-rails, and attempted to operate the pin lifter (which normally hangs down in a vertical position and if operating properly opens the knuckle when it is pulled back or up eight or ten inches — to an angle of about 45 degrees) with his left hand, while pulling on the knuckle with his right. While plaintiff was in this position and while pulling the pin lifter with his left hand it suddenly ‘flew’ up, to a point far higher than normal — three inches above the horizontal — and plaintiff was thrown off balance and upon the ground between the tracks”; that after he fell he was struck by the approaching hopper car and thereby suffered serious injuries.

Defendant states its theory as follows: “It was defendant’s theory of the case that plaintiff’s accident and injuries were not incident to a defective coupler and coupling' operation within the meaning of the Safety Appliance statute; that plaintiff’s negligence was the causal negligence; and that the verdict was against the manifest weight of the evidence.”

At the time of the occurrence plaintiff worked for defendant as a switchman. He had been in its employ for twenty-three years. The accident occurred on February 21, 1943, about 12:30 a. m., in defendant’s McDonald yard, near Chicago Heights. The night was dark. “The weather was . . . just about freezing.” There were no artificial lights in that part of the yard where the accident happened. Before the accident a number of preliminary movements of cars were made by the train crew of which plaintiff was a member, but it is not necessary to detail these movements, as they played no part in the accident. Just prior to the accident the crew were moving an engine and two cars attached to it toward a string of twelve standing freight cars for the purpose of coupling them. The twelve cars were standing on track No. 1, where they had been left by another crew. The engine, facing north, and the two freight cars attached to it were being moved backward in a southerly direction along track No. 1 toward the twelve standing cars. The two cars attached to the engine were south of it. The more southerly one was a hopper car. ' It was necessary to couple the south end of this hopper car to the north end of the most northerly of the twelve standing cars, which was a box car. As the twelve standing cars were some distance from the engine plaintiff got on the southerly car of the two attached to the engine in order to ride toward the standing cars. At that time the engine was moving at a speed of about four or five miles an hour. Plaintiff was riding the southeast end of this southerly car, which would be the left-hand corner if one faced the direction in which the car was moving. He was standing on the stirrup and hanging on a handhold. On all freight cars only the left-hand corner is equipped with a stirrup and handholds. On the right-hand corner is the ladder by which the car can be climbed, and also the pin lifter by which the knuckle is opened and coupling effected. It was necessary for plaintiff to ride the southeast corner of the car because the engine was headed north, which placed the engineer on the east side of the train, and the signals between the engineer and plaintiff had to be given from that side. Plaintiff gave the signals by means of his lantern. The testimony of both sides shows that “it is necessary in order to couple cars together to have one knuckle on one car open.” The knuckle on the car which plaintiff was riding was closed and as the pin-lifter was on the opposite side of. the car it was impossible for him to open the knuckle from the position he was then in. When the car on which plaintiff was riding was about five car lengths from the standing cars, he signaled the engineer to reduce his speed, and it was cut down to two or three miles per hour. Plaintiff did not know whether the knuckle on the standing car was open or closed. If it was closed it would be necessary for him to open it and prepare it for the coupling before the moving cars arrived, and therefore he stepped off the stirrup when the standing cars were about four car lengths away and walked rapidly toward said cars. He reached the standing cars while the moving cars were still some distance away. He found that the knuckle on the nearest standing car was closed and he grasped the pin lifter in his left hand and jerked it but it did not work and the pin failed to come up. He gave three more jerks upon the pin lifter but it did not operate. Satisfied that he could not open the coupler from outside of the rails, he then glanced at the moving cars and saw that they were still forty or fifty feet north of him, and, believing that he had ample time to adjust the couplers before the cars would impact, he put one foot between the rails and, holding the pin lifter with his left hand and holding the lantern with the thumb of his right hand, he reached in and grasped the knuckle with the four fingers of that hand. While in. this position and while he was exerting pressure on the knuckle and the pin lifter the latter suddenly and without warning flew up and threw him off balance, and he fell on his back in the center of the track, about six or seven feet north of the end of the car. As he fell he hollered, but before he could get to his feet he was struck by some part of the leading truck or brake rigging on the moving car, and suffered the injuries for which he sues. After taking plaintiff to the hospital the conductor and the entire crew of which plaintiff was a member returned to the place on track No. 1 where the two cars and the twelve cars had been left standing after the accident. The conductor, Schramm, and switchman, English, each made a test of the pin lifter on the north end of the most northerly of the twelve cars — the pin lifter that plaintiff was trying to operate at the time of the accident. Schramm testified that he tried the pin lifter a few times before it came up and when it finally came up “it went way up in the air” but did not open the knuckle. English testified that when the pin lifter came up it came up far above the horizontal, where it should have stopped; that when the pin came up the knuckle did not open and that in order to open the knuckle he had to reach in and open it with his right hand; that the pin lifter in its normal position hangs down vertically; that to pull the pin in order to open the knuckle the lifter must be raised to an angle of forty-five degrees, but must not be raised as far as the horizontal; that although the pin lifter on the car in question raised more than ninety degrees the knuckle did not open. The conductor also testified that the other members of the crew made the same tests and with the same results; that the crew then proceeded with their work, and that in order to make the coupling he found it necessary to hold the lifter up with one hand and open the knuckle with the other; that after they finally made the coupling he took the fourteen cars to Thornton, where he picked up some cars; that “I hung onto these two head cars, and went to Phoenix, and I set the two head cars at Phoenix, and picked up some. I don’t know how many”; that he took the twelve cars to Blue Island and left them there, either on track number two or three. Defendant’s witness Frank Flassig, a ear foreman, testified that at five o ’clock on the morning of the accident the yard master reached him at his home by telephone; that he was in bed at the time; that the yard master directed him to go to the Barr yard in Blue Island and make an inspection of the car in question; that he arrived at that yard about six a. m. and found the car on track 15 in -that yard; that he “never talked to the conductor or the switching crew that was handling that car that was working on it the night that Howard got hurt. I did not ever talk to any member of the crew. I did not ever get any specific information as to how the man got hurt”; that he made a thorough inspection of the car and found that it was O.K. in every particular; that after the inspection he ordered the car placed upon the repair track at Blue Island; that the ear was kept out of service for three days but that no repairs were made upon it before it was put back into service; that on the morning of February 22 he and one of his car inspectors, Felix Duhoski, examined the car on the repair track at Blue Island; that no one else was there at the time; that Duhoski is under his control; that at the time of the examinations he had been told that there was a man hurt on the car but that he did not know whether the man “was thrown off the car from the roof of the car, from the stirrups or anything else”; that he never got any specific information as to how the man got hurt; that he had Duhoski make the inspection with him on the 22d because “it takes two men always to make an inspection for something like that”; that on the 22d he and Duhoski inspected the coupling device again and the pin lifter and found everything all right; that when he pulled up the pin lifter about 45 degrees it operated; that on the afternoon of February 22 they made running tests and the couplings on the car in question coupled on impact. Upon cross-examination the following occurred: “Q. Air. Flassig, if that pin lifter, I mean if that handle, when you pulled it, not only went up as far as horizontal but went up to within 45 degrees of vertical again, would you consider it in proper working order? A. I would not. Q. There would be something wrong with it, wouldn’t there? A. There would be. Q. And if it went up that far and the knuckle still remained shut, then you would know there was something wrong with it? A. That is right. . . . Q. Now, if your pin lifting appliance is working properly, the knuckle can be opened by pulling it up to 45 degrees ? A. That is right. Q. But suppose it shouldn’t open, supposing the pin did go too far or the knuckle stuck. You could open it' by hand, couldn’t you? ... A. You can, yes. Q. You have had experience, in that very thing hundreds of times, haven’t you? A. Yes, sir.” Felix Duhoski, a witness for defendant, testified that he did not inspect the car with Flassig when it was on track 15 in Blue Island nor did he see it there; that the first time that he saw the car it was on the repair track in the Phoenix yard near Harvey; that it was then about one o’clock p. m. on February 22, 1943; that at that time, in company with Foreman Flassig, he made a thorough inspection of the car; that he inspected the coupler and pin lifting device on the car by using the pin lifter; that the pin lifter and the coupler were in good working order; that he did not pull the pins on the car while the locomotive was attached to it but that he observed men doing that; that the handle of the pin lifting device when the pin is down 0and in place is straight down; that when he pulled the handle up it pulled up forty-five degrees from the vertical from the bottom; that it did not at any time go past the horizontal position but it has to be disconnected to go up in the air. Upon cross-examination he testified that nobody had told him that an accident had happened to a man in connection with the car in question, that his attention had not been called to the fact that the pin lifter and coupling appliance was out of order; that he had nothing in particular in mind when he made his examination; that he does not know that anything had been done to the car before he inspected it; that Mr. Flassig ordered him to inspect the car. John P. Burgert, a switchman, employed by defendant, and Edward C. Graertner, a yard foreman, also employed by defendant, testified that they were present when the running tests of the car were made in Harvey on the afternoon of the 22d; that the coupling appliances on each end of the'car in question worked perfectly; that they coupled by impact and without the necessity of a man going in between the ends of the cars to adjust the knuckles of the couplers. Upon cross-examination the witness stated that he did not remember the day when he made the inspection but the gentleman told him it was the 22d; that he had no idea as to the date when he made the inspection. He further testified that he had had a lot of experience in coupling and that once in a while they stick; that dirt and rust would cause a coupler to stick. During his examination the following occurred: “Mr. Ryan [attorney for plaintiff]: Q. Haven’t you had it happen to you dozens and dozens of times in the course of the years when these couplers stick on account of dirt and rust, where you have to step in and open the knuckle by hand? A. We walk around the car and cut it from the other side. Q. Did you ever open a knuckle with your hand? A. Yes, sir. Q. Hundreds of times, haven’t you? A. Frequently. Q. And that is because they don’t work, that makes you do it, isn’t it? A. They stick once in a while. Q. You are not stepping in there unless you have to, to open the knuckle, do you? A. Well, just to speed up the work. . . . Q. But you do know that if a pin lifter went up beyond the horizontal, 45 degrees, that there is something wrong with it, don’t you? A. Yes, sir. Q. If it went that far up and the knuckle stayed closed, you would know there was something definitely defective about it, wouldn’t you? A. Yes, sir. Q. You don’t know what was done with that car before you made this test of it, do you? A. No, sir.” Defendant also called as a witness Maurice C. Murphy, who testified that he was the freight agent, station agent and acting yard master for defendant in Harvey, Illinois; that he keeps records of all cars moving through his immediate area; that his records show that the car in question “was set out by run 215, conductor A. H. Schramm, at 3:30 A. M. the morning of February 21, 1943”; that “the car was set at Bliss & Laughlin, one of the industries at Harvey, for loading at 3:15 A. M. on February 24th by Conductor G. B. Gertner. The car was pulled from Bliss & Laughlin, loaded at 4 A. M. on the 25th by Conductor G. B. Gertner. The car moved to our Blue Island Yard on Conductor Nestrick at 7:30 P. M. February 25th. Car moved to St. Paul at Western Avenue at 3:45 A. M., leaving Blue Island, Conductor Lester, February 26th.” The witness further testified that at 8:30 a. m. February 21, when he reached his office, one of the clerks working in the office called his attention to the-fact that there was a car in his yard that “one of the switchmen had got hurt on”; that he went out to look at it. The car “was set out on what we call our extension track between Halsted and Vincennes Avenue”; that the car was not repaired at his yard at any time, because if a car had been repaired in his yard the records would show it and that he had no record of the car in question being repaired during the time that it was in his yard; that he did not reach the yard on February 21 until about 8:30 a. m.; that when he saw the car in question, about 10 o ’clock a. m. on the 21st, it was standing singly, that the car looked all right to him but that he did not take hold of the pin lifter and try to operate the coupler. The following then occurred: “Mr. Ryan: Q. Did you do anything more than take a look at that car when you saw it that morning in the Harvey yard? A. No, sir.” From the record it appears that defendant made no attempt to prove that the condition of the coupling apparatus upon the car in question at the.time that its witnesses examined it was the same as it was at the time of the accident. Nor did it introduce as witnesses the men who moved this car around from one track to another.

Defendant contends that the court erred in giving to the jury plaintiff’s instruction number two. This instruction defines the issues and informs the jury under what facts they might return a verdict for plaintiff. Defendant argues that the instruction was prejudicial because “the complaint sets forth the pleader’s own conclusions of facts, and these conclusions, coming to the jury from the judge, import a verity to these conclusions which carries great weight-with the jury since they emanate from the office of the trial judge.” Defendant cites Cooney v. Hughes, 310 Ill. App. 371, where instructions like the one in question were criticised. While the First Division of this court in that case did criticise instructions like the one before us, nevertheless, the court stated (p. 383), “in so far as the briefs inform us the courts of this State have not thus far reversed a judgment for this cause. We think the jury here was not misled. The facts were simple, the issues easily understood.” The judgment for the plaintiff was affirmed. Upon the question of liability in the instant case, because of the stipulation of facts entered into by the parties and the effect of the Federal laws that apply to this suit, a simple, readily understandable issue was presented to the jury, viz., Was the plaintiff injured because of a defective coupling appliance while he was attempting to adjust the appliance in order to effect a coupling ? After the opinion was rendered in the Cooney case, the Supreme court, in Goldberg v. Capitol Freight Lines, 382 Ill. 283, had before it an instruction identical with the one before us, and in passing upon it the court said (p. 292): “While unnecessarily lengthy, the instruction so given was not improper. Similar instructions, equally, if not more, verbose in form, while criticized, have been held not to constitute error. Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207; Liska v. Chicago Railways Co., 318 id. 570; West Chicago Street Railroad Co. v. Lieserowitz, 197 id. 607.” Defendant also contends that the instruction charged that the couplers failed to couple on impact, and that there is no proof that the couplers failed to couple by impact. It would be a sufficient answer to this contention to say that the instruction does not charge nor assume that the couplers failed to couple by impact. Defendant states that the evidence shows that “the oncoming car stopped too short of the standing car for a coupling by impact.” This statement is not warranted under the facts and circumstances in evidence. While the cars were found uncoupled after the accident, Conductor Schramm testified that when he made his tests - on the pin lifter, after the accident, “there was a few inches of space between the south end of the most southerly car and the north end of the north car of the twelve”; that when he operated the pin lifter the knuckles did not open, and his evidence shows that in his attempt to couple the cars he had to do the very thing that Howard was attempting to do at the time of the occurrence. From all of the facts and circumstances the jury would have been warranted in finding that the two cars came in contact and that the couplers failed to work on impact. While plaintiff’s fall happened before the two cars had an opportunity to come in contact, it is entirely immaterial whether or not the two cars came, in contact at the time of the occurrence. Defendant’s criticism of plaintiff’s instruction number two is without merit.

Defendant contends that the court erred in giving to the jury plaintiff’s instruction number three. This instruction is in the language'of the Employers’ Liability Act and the giving of the same did not constitute error. (See Minnis v. Friend, 360 Ill. 328, 338.)

Defendant contends that plaintiff’s instruction number four, given to the jury, was erroneous and prejudicial. This instruction instructed the jury, in substance, that it was the absolute duty of defendant under the provisions of the two Acts in question to equip its cars with couplers that would at all times couple automatically by impact, without the necessity of employees’ going between the cars. Defendant contends that the instruction was erroneous and prejudicial because “in the first place it speaks of an absolute duty on defendant to have all cars equipped with couplers that would at all times couple automatically by impact without necessity of employees going between cars. In the first place, such is an abstract statement of the law which could not aid the jury in arriving at its verdict in this case. It could only confuse them because to them, probably, the use of the term ‘absolute duty’ would mean nothing else than that defendant was an insurer, and such is not the nature of the liability of defendant under either the Federal Employers ’ Liability Act or the Federal Safety Appliance Act.” There is no merit in this contention. In Atchison, T. & S. F. Ry. Co. v. Keddy, 28 F. (2d) 952, 955, defendant made a similar argument as to an instruction which “charged the jury that it was the absolute duty of the defendant to equip the car with a coupler that would work automatically by rise of the lift pin lever at all times, and that, if they found that the coupler failed to operate at the time and place of the accident, and that the plaintiff in the performance of his duty went in between the cars to operate the same, and was thereby injured, it was immaterial whether the coupler was operated prior to or after the occurrence of the accident.” The court held the instruction good. In Davis v. Michigan Central R. R. Co., 294 Ill. 355, 359, the court held the duty imposed by the Federal Safety Appliance Act is an absolute duty. In Philadelphia & R. Ry. Co. v. Auchenbach, 16 F. (2d) 550, the court defined the duty as “absolute and unqualified.” In St. Louis & Iron Mountain Ry. v. Taylor, 210 U. S. 281, 294, 295, the court said: “The Congress, not satisfied with the common law duty and its resulting liability, has prescribed and defined the duty by statute. We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is described. It is enacted that ‘no ears, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard. ’ There is no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just.”

Defendant, in support of its contention that the court erred in giving plaintiff’s instruction number seven, argues that it is subject to the objections it made to plaintiff’s instructions numbers three and four. We have heretofore disposed of these objections. It further argues that “instruction 7 is fundamentally bad in that the instruction tells the jury that if plaintiff fell between the cars for any reason he is entitled to recover. Again, plaintiff would make defendant an insurer. Such is not the nature of defendant’s liability under the Safety Appliance Act on cars coupling by impact as we have previously pointed out.” It is a sufficient answer to this argument to say that the instruction does not contain the words “for any reason,”, nor any similar words.

Defendant contends that the court erred in giving plaintiff’s instruction number thirteen. The instruction reads as follows: “13. If you believe from the evidence that any witness in this case has knowingly and wilfully sworn falsely on this trial to any matter material to the issues in this case, as elsewhere defined in these instructions, then you are at liberty to disregard the entire testimony of such witness, except in so far as it has been corroborated — if you find it has been corroborated — by other credible evidence or by facts and circumstances proved on the trial.” The point made by defendant is that the use of the words “to any matter material to the issues in this case,” without explaining to the jury what facts are material, makes the instruction bad. People v. Wells, 380 Ill. 347, is cited in support of the contention. There the court said (p. 358): “Undoubtedly the rule is, that where this instruction is given, other instructions should be given defining the issues, so as not to throw the burden on the jury of ascertaining what are and what are not material issues of fact. ’ ’ In the late case of People v. Lynn, 387 Ill. 549, the court said (p. 554): “Other instructions explained to the jury the essential and material elements of the offense charged, and taking the instructions as a series the jury was not at liberty to determine its own standard of ‘material facts’ or ‘material allegations.’ ” In the instant case the court gave plaintiff’s instruction number two, which fully defined, the issues in the case.

Defendant contends that the court erred in excluding from the jury certain of defendant’s operating rules which prohibited employees from going between the cars, adjusting knuckles with their hands, etc. Defendant concedes, as it must, that these rules would not be received to prove contributory negligence or assumption of risk, but it contends that the rules were proper evidence to show that the causal negligence in this case was plaintiff’s. Defendant apparently ‘ignores the fact that this is an action under the Safety Appliance Act. The following answer, inter alia, by plaintiff to defendant’s contention is a meritorious one: “Unless the supposed negligence of plaintiff was the sole cause of the accident, and the violation of the Safety Appliance Act played no part whatever in it, the rules would be immaterial, since plaintiff is entitled to recover if a violation of the Act contributed to his accident in any degree. ’ ’

■ In Chicago G. W. R. R. v. Schendel, 267 U. S. 287, the decedent was killed while between the cars, trying to disengage "a chain which had been substituted for. a defective drawbar. Among other defenses, the defendant relied on an admitted violation of a company rule which provided that employees should advise the engineer when going between cars, and must know that he understood their purpose before putting themselves in any dangerous position. The Supreme court, in passing upon the defense, stated (p. 292):

“The things shown to have been done by the deceased certainly amount to no more than contributory negligence or assumption of the risk, and both of these are removed from consideration by the Liability Act. When injured he was ‘within the class of persons for whose benefit the Safety Appliance Acts required that the car be equipped with automatic couplers and draw-bars of standard height. . . . His injury was within the evil against which the provisions for such appliances are directed. ’ . . . He went into the dangerous place because the equipment of the car which it was necessary to detach did not meet the statutory requirements especially intended to protect men in his position.”

The recent case of Scrimo v. Central R. R. of New Jersey, 138 F. (2d) 761, was an action under the Safety Appliance Act, where the defendant introduced in evidence a safety rule which provided that if the cutting lever was defective the movement must be stopped before any attempt was made to adjust the coupler. The trial court charged that the violation of the safety rule was not an issue in the case and should not be considered by the jury, and the Circuit Court of Appeals held the charge proper, (p. 762) “since contributory negligence or assumption of risk are no defense if a violation of the Safety Appliance Act contributes to the injury or death.” In the instant case there can be no doubt that plaintiff’s evidence showed that a defective coupling apparatus which he was attempting to adjust in order to effect a coupling proximately contributed to his injuries, and, therefore, the admission of the rules would only tend to confuse and mislead the jury.

Defendant contends that “the verdict was against the manifest weight of the evidence.” This contention assumes that plaintiff made out a prima facie case. We have heretofore stated the material evidence in the case. In People v. Hanisch, 361 Ill. 465, 468, the court said: “Whatever may be the rule in certain other jurisdictions, we firmly adhere to our often-asserted belief that it is the province of the jury, alone, to determine the weight of the evidence and the credibility of witnesses. If it were not so there would be little use for the jury system. The jury, as a fact-finding body, is of such importance that an abridgment of its functions in this regard and an appropriation of them by the judges would mean the forsaking of a valued tradition in our system of jurisprudence. The utmost caution should be exercised not only by the trial courts but by the reviewing courts to uphold the sanctity of the trial by jury. ’ ’ All believers in the jury system must heartily approve this statement of our Supreme court. But we are not obliged to rely upon the rules laid down in the ■ Hanisch case in order to sustain the verdict of the jury in the instant case, because, after a careful review of the evidence, we find ourselves in full accord with the verdict of the jury upon the question of the liability of defendant.

Defendant next contends that “the verdict was for an excessive amount.” Plaintiff was about fifty-one years of age at the time of the occurrence and had been working continuously for defendant for twenty-three years in the capacity of switchman or conductor. The evidence shows that he was a steady worker, who often worked overtime. Prior to the occurrence his health had always been good and he had never suffered any serious injury. After the accident he was at several hospitals and was treated by at least four doctors, all of whom were employed by defendant, and it paid all hospital expenses and all fees charged by the doctors. Plaintiff testified that after he fell some part of the brake rigging underneath the first truck struck his head and “knocked me out momentarily”; that when he came to “I was laying on my back and my head underneath the brake rigging, and the wheels standing on my pants leg. My left arm was smashed off, ’ ’ and “the car hit me in the head, tearing my scalp off”; that when he got to the caboose the conductor tried to stop the blood that was flowing by tying a rope around his arm, making “a sort of tourniquet.” Plaintiff was then taken to a hospital in Chicago Heights and there it was found that the wheel of the car had run down his arm from his elbow to the hand; that that part of his qrm was so crushed that Dr. Donaldson cut off that part with a pair of scissors; that the cut was made “right through the elbow.” Plaintiff remained at that hospital for two weeks and during that time his arm "“was terribly sore and pained me. . . . The stump was discharging, ’ ’ and he was nervous and run down from the shock. He was under Dr. Donaldson’s care for about four weeks, during which time he did not sleep well. On April 30 Dr. Donaldson “transferred” him to Dr. Rauschenbach, at Hammond. That doctor, in his treatment of plaintiff, took X-rays of plaintiff’s head and arm. Dr. Byrne, “a B. &>. 0. doctor,” then attended plaintiff and finally sent him to St. Luke’s hospital to have Dr. Mock examine him. Plaintiff testified that his arm “healed up ultimately,” but that he thinks he still feels some pain in the hand that was amputated; that he very frequently had pains in his head; that “I still have, very frequently have pains and headaches and dizzy spells”; that “last April” (the trial commenced May 31, 1944) he had a dizzy spell and fell in the) street and had. to be taken home in an ambulance. Plaintiff further testified that he was injured “right on top of the head, in the front, right here (indicating),” about at the hair line; that as a result of the accident he has a scar on his forehead. Plaintiff also testified that in 1940 his earnings totaled $3,094.95; in 1941, $3,291.14, and in 1942, '$3,984.38; that for the thirty-five days he worked in 1943 he earned $586.98; that since his accident wages of a switchman have been increased nine cents an hour. As plaintiff’s health prior to the accident had always been good, at the time of the accident he might reasonably have looked forward to many years of employment, and the evidence is conclusive that prior to the accident he was a steady, hard worker. Plaintiff contends that “in fixing the amount of damages, the jury might properly take into consideration the depreciation of the currency and the rising cost of living.”'

In Bowes v. Public Service Ry. Co. (N. J.), 110 Atl. 699, 700, the court said: “The word ‘excessive’ has a relative meaning. ... At a period when the purchasing power of the dollar has in the language of the day been ‘cut in half,’ the value of the sum awarded here is not to be estimated in -the numerical quantum of the recompense, but in its comparative ability to furnish the necessities of life. Of these facts the court must take judicial notice.”

In Quinn v. Chicago, M. & St. P. Ry. Co., 162 Minn. 87, 90, 202 N. W. 275, 276, the court said: “In recent years there has been a noticeable increase in the size of verdicts in personal injury cases. The courts approve of verdicts today which would have been unhesitatingly set aside as excessive 10 or 15 years ago. Measured in money, the earning capacity of most men has increased; measured in purchasing power, the value of a dollar has decreased. No immediate change in the situation is in sight. It is only right that these well-known facts should be taken into consideration. ’ ’

In Weadock v. Eagle Indemnity Co. (La.), 15 S. (2d) 132, 146, the court said: “. . . the decreased pur-, chasing power of the American dollar, with little or no prospect for any change, except probably further decrease, for many years, is a pertinent factor to be taken into consideration in determining the award. ’ ’

We have often recognized, in passing upon the amount of damages awarded, the decline in the purchasing power of money. To cite a few cases: Posch v. Chicago Rys. Co., 221 Ill. App. 241, 254, 255; Maskaliunas v. Chicago & W. I. R. Co., 235 Ill. App. 198, 221; Ehrenheim v. Yellow Cab Co., 239 Ill. App. 403, 409; Lagatutte v. Chicago Daily News Co., 239 Ill. App. 675 (Abst.); Foreman Brothers Banking Co. v. Consumers Co., 226 Ill. App. 662 (Abst.). Many other cases to the same effect might be cited, but we note that defendant, in its reply brief, does not attempt to answer plaintiff’s argument upon the instant point. There is merit in plaintiff’s argument that in his present physical condition he must invest his money in safe securities, and that a three per cent return would be the highest yield compatible with safety. Defendant does not question plaintiff’s further contention that he is entitled to substantial damages for pain and suffering, nor does it dispute plaintiff’s further contention that he is entitled to recover for deprivation of the privileges and enjoyments common to men of his class and that defendant’s wrongful act had deprived him of such privileges and enjoyments. Defendant does not dispute plaintiff’s claim that his days of active railroading are over, but it contends that “the court erred in refusing an offer of proof by defendant that plaintiff could continue in the employment of the defendant”; that “the refused testimony on plaintiff’s capacity and opportunity to stay on with the company as a switch-tender was a material factor to lower the verdict down to a more reasonable level than $50,000.” While defendant was putting in its case its counsel made an offer to prove that if R. F. Jetter were called as a witness he would testify as follows: “That he is now and was at the time of the happening of this accident and had been for a long time prior thereto the assistant superintendent of the Baltimore & Ohio Chicago Terminal Railroad Company. That on June 17, 1943, he, together with C. M. Haugh, trainmaster of said railroad, called at the home of the plaintiff, in Hammond, Indiana, and informed Mr. Howard of his eligibility to his choice of five positions as switchtender for the defendant company at East Chicago, Indiana. All of these switchtender’s positions work seven days per week. I offer to prove further by this witness, R. F. Jetter, that nothing was said at all at that time about this litigation, if it was then pending — I am not sure whether it was or not; that nothing was said about his claim against the company or about any suit against the company, but that he was offered this position, which he could have taken if he had desired to do so.” The counsel also made an offer' to prove by C. M. Haugh, trainmaster of defendant, “that he, in company with Mr. R. F. Jetter, the assistant superintendent of said railroad, went to the home of the plaintiff on June 17, 1943, and informed Mr. Howard that he was eligible to go to work for the Baltimore & Ohio Chicago Terminal Railroad Company as a switch-tender at East Chicago; that there were five positions open and that he could have his choice of any one of those five positions, and "that all of those positions worked seven days per week. That at that conversation, at that time and during that conversation, the plaintiff was informed that he could take any one of these positions and that nothing was said at all about his claim against this railroad company or about any suit that he might then have or might subsequently have against the company because of any injury that he might have received at any time. ’ ’ Plaintiff’s counsel stated that his objection to both offers went to the substance of the offers. Prior to the making of the two offers there had been considerable discussion between the court and counsel for both sides as to the admissibility of the alleged offer of employment. Plaintiff’s evidence strongly tended to prove that he was not physically able to take care of the job that defendant claims it offered him, and defendant did not see fit to produce nor offer to produce evidence to contradict that evidence. During the discussion the court ' stated that before such evidence would be competent defendant would have to show by evidence that plaintiff at the time of the alleged offer was physically able to do the kind of work required by the job that was offered him. Counsel for defendant appeared to agree with the court’s statement of the law, as the following shows: “Mr. Wright [attorney for defendant]: Your Honor, I can show, not by this witness [plaintiff] — of course I cannot do it all at once, but I can show that he is — ivas at this time and is now capable of tahing care of a switch tender job, physically able to do it. Mr. Ryan [attorney for plaintiff]: How are you going to show that? Mr. Wright: By a doctor. The Court: By what? Mr. Wright: A doctor. Mr. Ryan: Put him on, then. Mr. Wright: Well, I can’t do it now. Mr. Ryan: Well, I object. Mr. Wright: Well, you have got to wait. The Court: That would be proper. Mr. Wright: Yes.” While the court made it very plain that defendant would have to make a showing that plaintiff was physically able to do the work required by the offered job before the offer would be admissible, the court never refused defendant an opportunity to offer such proof. Indeed, the court stated that if plaintiff was physically capable of earning money defendant would have a right to show that jobs were open to him. Neither of the two formal offers of proof that defendant made contains any offer to prove plaintiff’s physical condition at the time the offer was made. The only reasonable inference that can be drawn from the record is that defendant was unable to prove by Jetter and Haugh that plaintiff at the time of the offer was physically able to accept their offer. A fortiori, the fact that defendant failed to call any of its doctors who attended plaintiff is very persuasive. The uncontradicted evidence is that at the time of the alleged offer plaintiff was under the care of one or more of defendant’s doctors, that he was highly nervous, and had pains in his head, “headaches and dizzy spells.” It was undoubtedly because of these “headaches and dizzy spells” that Dr. Rausehenbach took X-rays of plaintiff’s head, but defendant’s able and experienced attorneys did not see fit to call Dr. Rauschenbacti, and the record is silent as to what the X-rays showed. We feel impelled to say that it is to the credit of the company doctors who attended plaintiff that they did not give evidence to support defendant’s present contention that plaintiff, at the time in question, was physically able to perform the duties of the offered job. Under the .undisputed evidence, it would have constituted an act of criminal negligence for defendant to place plaintiff, in his physical condition, in the job of switch tender at East Chicago. We also agree with the statement of the trial court in passing upon the admissibility of the offered evidence that the evidence offered, if admitted, would only tend to lead the jury into the field of conjectures and speculations. The trial court also called attention to the fact that the offer was not a promise to plaintiff that he was to have permanent employment. Under the alleged offer defendant would have had a right to discharge plaintiff at its pleasure. In fixing damages, how could the jury, under the offered evidence, determine how long the offered job would last? The ruling of the court sustaining plaintiff’s objection to the offered evidence was proper. After a careful consideration of the evidence bearing upon defendant’s contention that “the verdict was for an excessive amount, ’ ’ we are satisfied that we would not be justified in disturbing the amount awarded by the jury. -

In our judgment, a simple case is presented by this appeal, although the able and astute attorneys for defendant have labored to make the case appear complicated by raising and arguing many contentions, none of which, when analyzed, possesses any. real merit. A study of the record satisfies us that this case was well tried, and that defendant has had a full and fair hearing. The judgment of the Circuit court of Cook county is affirmed.

Judgment affirmed.

Friend, P. J., and Sullivan, J., concur.