text:
    Illinois Minerals Company et al., Appellants, v. Catherine M. Miller, Executor of Will of William E. McCarty, Deceased et al., Appellees.
    Term No. 44M10.

      Heard in this court at the October term, 1945.
    Opinion filed January 7, 1946.
    Released for publication February 14, 1946.
    Lansden & Lansden, of Cairo, for appellants.
    Fordyce, White, Mayne, Williams & Hartman, of St. Louis, Mo., Dorothy Wilbourn and Asa J. Wilbourn, both of Cairo, for appellees.
   On Rehearing.

Mr. Justice Bartley

delivered the opinion of the court.

The questions for consideration by the court are the correctness of the following two orders of the circuit court of Alexander county. On November 9, 1943, upon separate motions of the appellees, the circuit court ordered the appellants, and each of them to make and file their election on or before November 24, 1943, as to whether they will proceed at law or in equity for damages growing out of the cause of action alleged. On December 13, 1943, the circuit court, on motion of .the appellees, entered its order perpetually enjoining appellant, Illinois Minerals Company, from prosecuting the cause of action as stated in Counts two, three, and four in the cause pending in Alexander county, and also its suit at law filed in the circuit court of the City of St. Louis, Missouri, on November 3,1938 ¡-dismissing the claim for damages of the appellant, Aud M. Davis, in Count one of said'cause, and dismissing the cause of action of the Ozark Minerals Company for damages both at law and equity if it failed on or before December 28, 1943, to file an election.

On November 3, 1938, the appellant, Illinois Minerals Company, filed its suit at law in the circuit court of the City of St. Louis, in the State of Missouri, against appellee, Olive Branch Minerals Company, and William E. McCarty, who is now deceased and of whose will, Catherine M. Miller is executor, claiming damages for the alleged wrongful appropriation, acquisition, and use of the appellant, Illinois Minerals Company’s list of customers for the products of the said appellant which it was engaged in producing, mining, milling, and selling, consisting of silica and related products.

On September 12, 1940, the appellants, Illinois Minerals Company, Ozark Minerals Company, and Aud M. Davis, filed their suit in the circuit court of Alexander County, Illinois, against William E.- McCarty and appellee, Olive Branch Minerals Company. William E. McCarty died. Catherine M. Miller, as executor of his will, has been substituted in his stead, and is the other appellee here. The complaint, as amended, and as it now exists, consists of four counts, all growing out of the alleged wrongful appropriation, acquisition and use of appellant’s list of customers. Count one seeks to permanently enjoin the appellees from soliciting and selling silica and related products to the customers of the appellant appearing on the list alleged to have been wrongfully appropriated and acquired, and also asks judgment for damages for the alleged wrongful acts in appropriating, acquiring and using said list of customers. Counts «two to four, inclusive, are at law and seek damages for the same alleged wrongful acts, and all are pending against both appellees with the exception that by reason of the action of the circuit court of Alexander county and this court in'the case of Illinois Minerals Co. v. McCarty, 318 Ill. App. 423, the alleged cause of action alleged in count three, has been abated as to appellee, Catherine M. Miller as executor of the will of William E. McCarty, deceased. This is a count for conversion. The count in equity and the remaining two counts at law are based on fraud. (Illinois Minerals Co. v. McCarty, 318 Ill. App. 423.)

In pursuance of the order of the circuit court of Alexander county of December 13,1943, the appellant, Illinois Minerals Company, elected to proceed in equity for damages. Appellant, Ozark Minerals Company, failed or refused to make any election. Appellant, And M. Davis, elected to proceed at law for damages. Following these elections and failure or refusal to elect, the circuit court entered its order of December 13, 1943, enjoining appellant, Illinois Minerals Company, from prosecuting its cause of action as stated in counts two, three, and four of the Illinois action, and its suit at law filed in the circuit court of the City of St. Louis, Missouri; dismissing the claim for damages of the appellant, Aud M. Davis, alleged in count one; and dismissing the cause of action at both law and equity as to damages of appellant, Ozark Minerals Company, in the event it failed to file its election on or before December 28, 1943. Appellant, Ozark Minerals Company, failed to file an election.

It appears from what has heretofore been said in this opinion, that the ultimate question to be decided by this court, is whether the so-called doctrine of election of remedies should have been applied in this case.

The general rule cannot be well controverted that a court of equity will, in a proper case, compel a party to make an election in which court he will proceed, and the proceedings in the other court will in such case be stayed where one is seeking to proceed in a court of equity and a court of law for one and the same thing at the same time. (Erikson v. Ward, 185 Ill. App. 269; Fetzer v. Clark, 153 111. App. 152; Smith v. Billings, 62 Ill. App. 77.)

In considering the applicability of the rule, however, in any given case, we must consider the purpose, effect, and limitations of the rule. The doctrine of election of remedies, as more generally understood, is applicable only as between inconsistent remedies for the same injury or cause of action. (Jackson v. Industrial Board, 280 Ill. 526; Pars. 4, 5, and 6 of chapter on Election of Remedies, 18 Am. Jur. 130, 131.) In speaking of election of remedies, courts sometimes 'fail to observe the distinction between the doctrine of election of remedies and other more or less related phases of the law, such as choice of substantive rights and abatement of actions. This has brought seeming conflict of judicial opinions in relation to the doctrine of election. (Par. 5 of chapter on Election of Remedies, 18 Am. Jur. 130, 131.) The doctrine of election of remedies here under consideration is more akin to the rules pertaining to an abatement of an action because of another action pending. The reason for abatement of actions in this sense, is that one should not be vexed with a litigation in one or more suits at the same time for the same cause of action. (Par. 14 of chapter on Abatement and Revival, 1 Am. Jur. 28; par. 17 of chapter on Abatement and Revival, 1 C. J. ¡3. 51; par. 38 of chapter on Abatement and Revival, 1 O. J. 45; Schneider v. Smith, 271 Ill. App. 414; Smith v. Billings, 62 Ill. App. 77.) The doctrine has its application as between suits at law and as between suits in equity in the same jurisdiction. It has no application, however, in most jurisdictions to suits at law and in equity. (Lowry v. Kin sey, 26 Ill. App. 309; Haas v. Righeimer, 220 Ill. 193; Dukeman v. Beisley, 250 Ill. App. 537; Erikson v. Ward, 185 Ill. App. 269.)

As between suits at law and in equity, it is said that one cannot be pleaded in abatement of the other because the rules of procedure, relief obtainable, manner of execution, and so forth, in the two courts are not alike. (1 Am. Jur. 37, 38, par. 31 of chapter on Abatement and Revival; par. 49 of chapter on Abatement and Revival, 1 C. J. S. 79; par. 54 of chapter on Abatement and Revival, 1 C. J. 51; Erikson v. Ward, 185 Ill. App. 269.) In those jurisdictions like Illinois where it is held that a suit at law or in equity cannot be pleaded in abatement of the other, the procedure was established to bring about the same result by a rule on the plaintiff to make an election whether to proceed at law or in equity. (Par. 31 of chapter on Abatement and Revival, 1 Am. Jur. 37, 38; par. 7 of chapter on Election of Remedies, 18 Am. Jur. 130, 131; par. 49 of chapter on Abatement and Revival, 1 C. J. S. 79; pars. 54, 57 of chapter on Abatement and Revival, 1 C. J. 52; Erikson v. Ward, 185 Ill. App. 269; par. 32 of chapter on Election of Remedies, 28 C. J. S. 1107; par. 41 of chapter on Election of Remedies, 20 C. J. 44; Smith v. Billings, 62 Ill. App. 77.)

In the application of a plea in abatement in such actions as it is pleadable in, among the requirements are that the two causes of actions be the same or substantially the same, so that the action of one would be a bar to the action in the other. (Pars. 27 and 28 of chapter on Abatement and Revival, 1 Am. Jur. 34, 35; pars. 80 and 83 of chapter on Abatement and Revival, 1 C. J. 61, 66; pars. 39 and 42 of chapter on Abatement and Revival, 1 C. J. S. 62, 69.)

Likewise, in the application of the rule requiring plaintiff to elect as between a proceeding at law and a proceeding in equity, an election will only be com-polled where the suits have substantially the same aim and scope, and the relief sought in each case is substantially the same, so that the one could be pleaded in bar of the other. (Par. 30 of chapter on Election of Remedies, 18 Am. Jur. 150; par. 32 of chapter on Election of Bemedies, 28 C. J. S. 1106; par. 40 of chapter on Election of Bemedies, 20 C. J. 43; Fleming v. Courtenay, 95 Me. 135, 49 Atl. 614.)

In discussing the application of the rule, the court in the case of Fleming v. Courtenay, 95 Me. 135, 49 Atl. 614, at page 614, said:

“The practice of ordering an election between an action at law and a suit in equity does not appear to have been considered in any reported case in this state, but it is a well-settled and familiar rule of procedure in all courts exercising general equity jurisdiction that where a plaintiff is prosecuting an action at law and a suit in equity against a defendant at the same time, for the same cause, he may be compelled by the court, upon application of the defendant, to elect whether he will proceed with the action at law or in equity. (Ambrose v. Nott, 2 Hare 649; Fennings v. Humphrey, 4 Beav. 1; Rogers v. Vosburg, 4 Johns Ch. 84; Central R. Co. of New Jersey v. New Jersey W. L. R. Co., 32 N. J. Eq. 67; Sears v. Carrier, 4 Allen 339.) The practice is said to have originated in an order of Lord Bacon, in which it was declared that ‘double vexation is not to be admitted; but, if the party sue for the same cause at common law and in chancery, he is to have a day given to make his election where he will proceed, and, in default of such election, to be dismissed. ’ 2 Daniell, Ch. Sec. 961. The suits must be practically for the same cause, and brought by the same parties, or in the same right, and must be such that a judgment or decree in one would be a bar to the other. But the plaintiff will not be compelled to elect unless the remedy in the suit at law is equally complete and adequate with the remedy in equity. Whitehouse, Eq. Prac. Sec. 441, and cases there cited.”

The purpose of the rule is to avoid vexing, harassing and oppressing one by requiring him to defend a suit at law and a suit in equity for one and the same purpose at the same time. (Smith v. Billings, 62 Ill. App. 77.)

Under the present Practice Act in Illinois, causes of action in equity and at law are permitted to be joined together in the same suit. However, under the terms of the present Practice Act, the substantial distinctions between actions in equity and suits at law still remain; (Dunham v. Kauffman, 385 Ill. 79; Frank v. Salomon, 376 Ill. 439; Hawley Products Co. v. May, 314 Ill. App. 537; People ex rel. Barrett v. Fritz, 316 Ill. App. 217.)

Under the law in Illinois, a court of equity cannot adjudicate a question of damages recoverable at law unless there is some principle of equity involved which gives the court jurisdiction and the damages are assessable as an incident to the equitable relief sought. In such cases where the claim for equitable relief fails, the jurisdiction to assess damages also fails. (Patterson v. Patterson, 251 Ill. 153; Stickney v. Goudy, 132 Ill. 213; Perlman v. Thomas Paper Stock Co., 319 Ill. App. 109.)

In a suit for injunction, a court of equity might go on and award damages in a case where no suit at law for damages would lie. (Garden City Sand Co. v. Southern Fire Brick & Clay Co., 260 Ill. 231.) In cases where a court of equity allows equitable relief and a claim for damages is made as an incident to such relief, while ordinarily in such case a court of equity will go on and adjudicate- the question of damages in order to do complete justice between the parties and avoid a multiplicity of suits, it is still in the sound judicial discretion of the chancellor as to whether he will go on and adjudicate the question of damages or relegate the plaintiff to his action at law to determine that question. (Braithwaite v. Henneberry, 222 Ill. 50.)

In a suit in equity in Illinois where equitable relief is sought and damages also claimed, such suit would be a bar in a later action at law to the extent that such issues were determined by the court. (Pillsbury v. Early, 324 Ill. 562; Dempster v. Lansingh, 224 Ill. 402; Wright v. Griffey, 147 Ill. 496; Stickney v. Goudy, 132 Ill. 213.) As to the extent, however, that such suit may be a bar in a suit at law necessarily cannot be determined until the culmination of the suit in equity, for the reason that until the case is decided, it cannot be determined whether the court will have jurisdiction to, or in its judicial discretion will adjudicate the damage claim. (Braithwaite v. Henneberry, 222 Ill. 50; Garden City Sand Co. v. Southern Fire Brick & Clay Co., 260 Ill. 231; Patterson v. Patterson, 251 Ill. 153; Stickney v. Goudy, 132 Ill. 213.)

With the principles of law applicable, hereinbefore stated, we can come now quickly to the decision of the issues presented for consideration here. Count one of the amended complaint herein is in equity for damages, counts two to four, inclusive, are at law for damages. The action pending in the State of Missouri between the parties is at law for damages. As to whether, and to what extent, a count in equity may be decisive of the issues or in bar of the claim for damages, cannot be determined until the trial and decision of the issues made by the count in equity. (Braithwaite v. Henneberry, 222 Ill. 50; Garden City Sand Co. v. Southern Fire Brick & Clay Co., 260 Ill. 231.) If the plaintiff is unsuccessful in his suit for injunction, the right of the court of equity to determine the isstle as to damages would fail. (Patterson v. Patter son, 251 Ill. 153; Perlman v. Thomas Paper Stock Co., 319 Ill. App. 109; Stickney v. Goudy, 132 Ill. 213.)

If the court should determine that an injunction should issue, it would still remain in the sound judicial discretion of the court as to whether to proceed to adjudicate the issue as to damages. (Braithwaite v. Henneberry, 222 Ill. 50.)

It would seem clear, therefore, that at this time it cannot be determined as to how far, and to what extent the count in equity may be in bar of the counts at law. It must follow; therefore, that the rule heretofore set out is applicable that the court, by election, will not compel one to choose between a suit in equity and a suit at law, unless one is in bar of the other. (Fleming v. Courtenay, 95 Me. 135, 49 Atl. 614.)

Obviously, the count in equity and the counts at law cannot be tried and determined at one and the same time without bringing about confusion and conflict. However, inherently and particularly by reason of various provisions of the present Practice Act, adequate power exists in the trial court to so control the time of trial of the equity count and of the three counts at law so as to avoid any confusion and conflict and any undue inconvenience or vexation, harrassing or oppression of the defendants.

It is our opinion that the better practice is for the trial court to first proceed to the trial of the issues made by the equity count, particularly in view of the fact that the thing that gives the jurisdiction to a court of equity to adjudicate the damages is to avoid a multiplicity of suits and to do complete justice between the parties. Upon the determination of these issues, the trial court could then proceed to a determination of the issues made by the law counts, and, of course, after the determination of the issues made by the count in equity, the question would then arise as to how far, and to what extent the decision of the issues made by the equity count may be in bar, either by way of res adjudicata, estoppel, or otherwise, of the issues made by the law counts. If this procedure were adopted by the trial court, the circuit court of the City of St. Louis, Missouri, may, out of the spirit of comity, delay the trial of the suit at law pending there, until the termination of the equitable proceedings. (Par. 39 of chapter on Abatement and Revival, 1 Am. Jur. 44; Harris v. Pullman, 84 Ill. 20.)

However this may be, should the counts at law for damages be first determined, then the problem would arise as to what extent the adjudication in the damage counts at law may be in bar of the issues made by the count in equity.

The judgment of the circuit court of Alexander county is therefore reversed, with directions to vacate the order of December 13,1943; to dissolve the injunction as to appellant, Illinois Minerals Company; to reinstate all counts dismissed as to appellant, And M. Davis; to reinstate the cause of action at both law and equity dismissed as to appellant, Ozark Minerals Company; and to overrule the motions of the appellees to require the appellants to elect whether to proceed at law or in equity for damages.

Reversed and remanded with directions.

Stone, P. J., and Culbertson, J., concur.


source: Caselaw Access Project

author: Mr. Justice Bartley

license: Public Domain

text:
    Lawrence C. Wildy, Appellee, v. Newman Woodruff and George V. Gruenewald, Sheriff of St. Clair County, Appellants.
    Term No. 4,505.
    Heard in this court at the October term, 1945.
    Opinion filed January 7, 1946.
    Released for publication February 7, 1946.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellants.

      Johnson & Johnson, of Belleville, for appellee.
   Mr. Justice Bartley

delivered the opinion'of the court.

Lawrence C. Wildy, plaintiff appellee (hereinafter for convenience called appellee), recovered a judgment in the circuit court of St. Clair county, Illinois, in a trial before the court without a jury, against Newman Woodruff and George V. Gruenewald, sheriff of St. Clair county, Illinois, defendants appellants (hereinafter for convenience called appellants), for $3,000.

The basis of the suit by the appellee is the claim by him that the appellant, Woodruff, while a duly commissioned special deputy sheriff of St. Clair county, appointed and commissioned by appellant, Gruenewald, sheriff of St. Clair county, and while acting as such in directing traffic on a public highway known as Missouri avenue, negligently shot and discharged his revolver in such a manner as to cause a bullet discharged therefrom to strike the appellee in the head, and thereby caused him serious injury.

The appellants predicate their defense *on the assertion that at the time of the occurrence in question, the appellant, Woodruff, was not acting as deputy sheriff nor for the defendant appellant, Gruenewald, sheriff of St. Clair county; that at the time and place of the occurrence in question, the appellee and the appellant, Woodruff, were respectively employees of companies subject to the Workmen’s Compensation Act, and acting as such, that they are each hound by said Act, and that therefore appellee’s rights are determined by such Act.

The acts of a deputy sheriff when acting by virtue of the office are the acts of the sheriff, and when acting as such officially the sheriff is liable for the negligent acts of such deputy. (Pars. 12 and 13, ch. 125, Ill. Rev. Stat, 1945 [Jones Ill. Stats. Ann. 124.12, 124.13].)

An injured employee cannot maintain a cause of action against a negligent third party who is bound by the Workmen’s Compensation Act as such cause of action is by the Act transferred to the employer who is limited in his right of recovery to the amount of the award for which he has become liable, and a negligent third party who is an employee bound by the Compensation Act, is a “person bound” within the meaning of sec. 29 of the Act [Ill. Rev. Stat. 1945, ch. 48, par. 166; Jones Ill. Stats. Ann. 143.44] providing for the transfer of causes of action to the employer of the injured party. (Thornton v. Herman, 380 Ill. 341.)

At the trial of the cause, it was stipulated between the parties that the Aluminum Company of America (for convenience hereinafter called the Aluminum Company) which employed appellee, was engaged in a business which made them bound under the Workmen’s Compensation Act of Illinois and placed appellee under that Act, so that at the time, both were under the terms of the Act. It was also stipulated that appellant, Woodruff, was an employee of the Aluminum Ore Company of East St. Louis (hereinafter for convenience called the Ore Company) at the time of the occurrence in question; that he was working for such company, and that the company and appellant, Wood-ruff, were under the provisions of the Workmen’s Compensation Act, and that if he were acting as an employee of the company, he was under the terms of the Act. Appellee reserved the right to contend that the appellant, Woodruff, was acting as a special deputy sheriff at the time in question.

Appellant, very pointedly, in their brief state the issue before the court here for consideration:

“In this case there is only one question to be considered and that is, was appellant Woodruff an employee of the Aluminum Ore Company and acting as such at the time of the occurrence in question? If he was, then there can he no question but that appellee’s rights are determined by the provisions of the Workmen’s Compensation Act of the State of Illinois.”

Appellee in his brief, just as directly, meets the issue and says:

“In the first sentence of this argument, the defendants appellants have stated that the only question on the appeal is whether the appellant Woodruff was an employee of the Aluminum Ore Company and was acting as such at the time of the occurrence in question.

The contention of plaintiff appellee is that the defendant Woodruff, at the time and place of the occurrence, was acting in his capacity as a special deputy sheriff, and that therefore the findings and judgment of the trial court should be affirmed.”

It appears therefore from the foregoing, that the sole issue for the determination of this court is whether the appellant, Woodruff, was, at the time of , the occurrence in question, acting in pursuance of his capacity as deputy sheriff, or as an employee of the Ore Company.

Appellant, Woodruff, went to work for the Ore Company in August 1940, as a laborer, and on July 20, 1943, the date of the occurrence in question, he was a plant guard, having been such for about two years. The plant of the Ore Company was on the south side of Missouri avenue. The plant of the Aluminum Company was on the north side. On April 24, 1943, appellant, Woodruff, obtained a commission as deputy sheriff from appellant, G-ruenewald. About 5:00 o’clock on the afternoon in question, he went on Missouri avenue to direct traffic, at the direction of the chief of the guards of the Ore Company. The company had two signs which said “Stop” and one was put on one side of the crossing and one on the other. At the time, some 1,500 to 2,000 employees of the Ore Company were leaving the plant to cross to the parking lot for the company on the north side. The- cars would then be driven out of the parking lot and come out on Missouri avenue and go either east or west. Appellant, Woodruff, was in the middle of the street where officials' and employees were coming out of the plant. There was also other vehicular traffic on Missouri avenue. While appellant, Woodruff, was in the center of Missouri avenue, a truck came from the west going east on Missouri avenue. Appellant, Woodruff, blew his whistle to stop the truck. The truck did not stop, but ran towards Woodruff so that he had to run off of the street. He then fired a couple of shots in the direction of the truck. Appellee was crossing Missouri avenue, in the course of his duties as guard for the Aluminum Company, some two blocks east of appellant, Woodruff, and one of the shots struck him in the head above his left ear, causing him the injuries complained of. The truck did not stop. The Ore Company, at the time of the occurrence in question, had some 50 guards, seven of whom were commissioned as deputy sheriffs. The Aluminum Company had nine men as guards on the' shift at the time of the accident, and at one time, it had as many as 13 on the shift.- Appellant, Woodruff, wore the same uniform as the other guards of the Ore Company and of the Aluminum Company — Khaki pants, khaki shirt, and helmet. They all carried revolvers and wore company badges.

The appellant, Woodruff, worked at various duties as plant guard as might be directed by the chief of the guards, and when assigned to directing traffic, would do so for about 45 minutes and then return to the plant, or go on home if his time of work was up. He worked from December 1940, to the time he received his commission on April 24, 1943, as a plant guard without any commission, and did the same work as he did before he received his commission, at the same pay, and in no different manner, and under the direction of his chief of guards of the Ore Company. He knew appellant, G-ruenewald, by sight only, received no pay from him, did not take any instructions from him, nor did he report to him.

It is not clear as to just why the appellant, Wood-ruff, became a deputy sheriff. He testified that he had not been advised to become a deputy sheriff in order to perform traffic work on the highway, but was advised to become such so that if there were an accident, he would have the right to hold a man until the sheriff could get there and take care of it.

From the foregoing statement of facts as disclosed by the record, and from an examination of the record, we are satisfied that at the time of the occurrence in question, the appellant, Woodruff, was acting as an employee of the Ore Company in "the course of his duties as such, and was not acting in the capacity of deputy sheriff of St. Clair county. Would the appellant, Woodruff, have acted as he did at the time of the occurrence in question, if he were not clothed with a commission as deputy sheriff? The obvious answer to this question is yes. He was performing the same duties in the same manner as he had been before he became deputy sheriff; he received no directions as to his work by the sheriff either before or after receiving his commission; he was paid by the Ore Company, at the same pay and in the same manner all of the time, as were all of the other guards, whether commissioned as deputy sheriffs or not. This was true of the other guards of the Ore Company and the Aluminum Company, some of whom performed the same duties in direction of traffic as he did. He wore the same uniform, carried a like revolver, and wore a like badge, as did all of the other guards of-the Ore Company and the Aluminum Company, all of whom were directed and assigned in their work by the chiefs of guards of the respective companies. His work, excepting 45 minutes of the working day when he was directing traffic, took him in the boundaries of the plant of the Ore Company. It is apparent that the duties of the appellant, Woodruff, as an employee of the Ore Company, were the same as the other guards of the companies. These duties were to guard and protect the plant and personnel of the company, which included the protection, as assumed by the Ore Company of its personnel while crossing Missouri avenue to go to the parking lot for the Ore Company, and these duties had no relation to his office of deputy sheriff.

It follows therefore that the judgment of the trial court will be reversed.

The conclusions we have reached are supported by the case of Chicago & I. Midland Ry. Co. v. Industrial Commission, 362 Ill. 257.

The judgment of the trial court is reversed and remanded with directions to find the issues in favor of the defendants, and to enter judgment in favor of the defendants and against the plaintiff and judgment for costs against the plaintiff.

Reversed and remanded with directions.

Stone, P. J., and Culbertson, J., concur.


text:
    Marietta Raymond and Brower Raymond, Appellees, v. William C. Lowe and Edna Lowe, Appellants.
    Term No. 45,013.

      Heard in this court at the October term, 1945.
    Opinion filed January 7, 1946.
    Rehearing denied February 14, 1946.
    Released for publication February 14, 1946.
    Jacoby, Patton, Manns & Coppinger, of Alton, for appellants; V. M. Jacoby, of Alton, of counsel.
    Everett B. Dodd, of East Alton, for appellees.
   Mr. Justice Bartley

delivered the opinion of the court.

Petitioners, Marietta Raymond and Brower Raymond, file a petition praying that a writ of habeas corpus issue directed to respondents, William 0. Lowe and Edna Lowe, in which they allege, in effect, that they were the parents of Patrick Raymond, a male child of about eleven months, who was detained and unlawfully restrained of his liberty, by respondents without authority of law; that said child was placed to board with respondents and that upon the request of petitioners to return said child to them, respondents refused to so do, and that said respondents were holding said child against the wishes and without the consent of the petitioners; that there has been no proceeding in any court concerning the custody, control and education of said child.

Respondents filed an answer and cross petition denying that Marietta Raymond and Brower Raymond were the parents of Patrick Raymond, the child in question, and allege that said Patrick Raymond was the illegitimate child of petitioner, Marietta Raymond, by respondent, William C. Lowe; that said child was in the custody of respondent, William C. Lowe, and was receiving care, support and maintenance from the respondents, William C, Lowe and Edna Lowe, by reason of an oral agreement- entered into by petitioner, Marietta Raymond, and respondents; that petitioner, Marietta Raymond, is not entitled to the custody of said child, by reason of the agreement entered into between petitioner, Marietta Raymond, and respondents in the month of January 1943; that petitioner, Marietta Raymond, is not a fit and proper person to have the care, custody, control, maintenance and education of said child, Patrick Raymond; that respondents are able to provide more suitable living quarters for said child,. Patrick Raymond, than petitioners who reside in a houseboat on the Mississippi river, in Alton, Illinois; that the premises on which petitioner, Marietta Raymond, resides is located in an improper area.

Due notice of the filing of a petition was given by respondents to petitioner, Marietta Raymond, as provided by the Bastardy Act, in which petition it was alleged that petitioner Marietta Raymond, was not a suitable person to have the care and custody of said child, Patrick Raymond; and wherein respondents ask for the custody and control of said child.

Petitioners filed a reply to respondents ’ answer and cross petition, and upon a hearing of the cause, the evidence shows that petitioners, Marietta Raymond and Brower Raymond, were married in 1924; that they lived together as man and wife ever since, and that there were three children born of the marriage: first child horn in 1940; second child, being Patrick Raymond, born in 1942; and the third child born in 1943.

The trial court found that Patrick Raymond, the child whose custody is in controversy herein, is the child of petitioners, Marietta Raymond and Brower Raymond, who were lawfully husband and wife; that said child was born in lawful wedlock and that petitioners, Marietta Raymond and Brower Raymond, lived together in said marriage relationship continuously for more than one year prior to the birth of their child, Patrick Raymond; that said child was temporarily with respondents for board, care and maintenance; that respondents received valuable consideration for said care from the child’s mother; that respondents are not holding the child from the petitioning mother under authority of any judgment or decree or process of any court, and that the custody of the child is unlawfully held by respondents. The custody of the child, Patrick Raymond, was given and restored to petitioners by the court.

A motion for new trial and amendment thereto, was filed and denied by the trial court.

This court, having examined the evidence presented by petitioners and respondents, finds the trial court to be correct in finding that Patrick Raymond, the child whose custody is in question herein, is the child of petitioners, Marietta Raymond and Brower Raymond, and that petitioners were rightfully entitled to the care, custody and control of said child.

The Supreme Court, in discussing the proof necessary to rebut the presumption of the legitimacy of a child, stated in Orthwein v. Thomas, 127 Ill. 554, at page 562, as follows:

“And the cases cited by the court go to this extent: that the law- is unwilling to bastardize children, and throws the proof on the party who alleges illegitimacy, and in the absence of evidence to the contrary, a child, eo nomine, is therefore a legitimate child. Nor does the law' require an acknowledged and conceded child to prove an act of marriage to maintain his legitimacy. The presumption and charity of the law are in his favor, and those who wish to bastardize him must make out the fact by clear and irrefragable proof. The presumption of law is not lightly to be repelled. It is not to be lightly broken in upon, or shaken by a mere balance of probabilities. The evidence for repelling it must be strong, satisfactory and conclusive; ’ ’

The evidence fails to prove that petitioner, Marietta Raymond is not a suitable person to have the control and custody of the child, Patrick Raymond.

The finding of the trial court was not contrary to the evidence submitted, and the trial court did not err in not granting a new trial. We find no-error in the record. The decision of the trial court is therefore affirmed.

Affirmed.

Stone,. P. J., and Culbertson, J., concur.


author: Mr. Justice Culbertson

text:
    Nell M. Belcher, Appellee, v. Citizens Coach Company, Inc., and Elizabeth Keiser, Appellants.
    Term No. 4,507.

      Heard in this court at the October term, 1945.
    Opinion filed January 7, 1946.
    Released for publication February 7, 1946.
    Green & Hoagland, of Alton, for appellants; Kenneth E. Kelly, of counsel.
    Philip G. Listeman, Josiah Whitnel and Lloyd Middleton, all of East St. Louis, for appellee; Whitnel, Browning, Listeman & Walker, of East St. Louis, of counsel.
   Mr. Justice Culbertson

delivered the opinion of the court.

This case is before us on appeal from a judgment ' in favor of appellee, Nell M. Belcher (hereinafter called plaintiff), and as against appellant, Citizens Coach Company, Inc. (hereinafter called defendant), in the sum of $6,000.

The cause was first tried in February of 1944, upon a complaint which charged the defendant, Citizens Coach Company, Inc., with negligence in parking and stopping two of its busses on Washington street, in Alton, Illinois, and charged another defendant, Elizabeth Keiser, with wilful and wanton misconduct in the operation of her automobile. Verdicts were returned in favor of plaintiff as against both defendants in that action, and separate motions for judgments notwithstanding the verdicts, as well as the motion for new trial by the plaintiff on the ground of inadequacy of the verdicts were made and granted. On appeal to this court, we held that the judgment was improperly entered in the plaintiff’s suit as against the defendant, Citizens Coach Company, Inc., but affirmed the action of the trial court in entering judgment in favor of the defendant, Elizabeth Keiser. Following the reversal and remandment of the cause for new trial, the cause was again tried in the circuit court of Madison county upon the second amended complaint of plaintiff, and the answer of the defendant, Citizens Coach Company, and it is from a judgment in favor of the plaintiff in the sum of $6,000 as against such defendant, that this appeal is taken. Motions for judgment notwithstanding the verdict, for a new trial, and in arrest of judgment were denied in the court below.

As we indicated in the previous opinion in the appeal considered in this court resulting from the first trial of this cause (Belcher v. Citizens Coach Co., Inc., and Elizabeth Keiser, 324 Ill. App. 226, Abst.), the complaint in the action charged the defendant, Citizens Coach Company, Inc., with ordinary negligence and the defendant, Keiser (who was not involved as a defendant in the present trial), with wilful and wanton misconduct. The accident on the basis of which the action was filed, occurred on April 8, 1943 at about 11:00 o ’clock in the morning, on a sunny day, when the pavement was dry and the weather was mild. The defendant Keiser (who is the daughter of the plaintiff), was driving her husband’s automobile in a southerly direction on Washington avenue, in the City of Alton, Illinois. In the automobile with Mrs. Keiser were her infant child, another passenger (a Mrs. Laszewski), and the plaintiff. Plaintiff was holding her grandchild upon her lap as the automobile proceeded south toward the intersection of Washington avenue and East Broadway. Just north of the intersection at Washington avenue and East Broadway, Washington avenue is intersected by another street called “Bozza Street.” Between East Broadway and Bozza street, Washington avenue is only slightly upgrade, and beginning at Bozza street, Washington avenue rises to a sharp grade to the north. It is a straight and unobstructed avenue. Washington avenue is an extensively traveled business street.

The evidence indicates that one of the motor busses operated by the defendant Coach Company was parked on .the east side of Washington avenue just below the Bozza street intersection, with its front end headed into the curb and its rear end extending out over the center line of the street. There were other automobiles parked along the west side of Washington avenue. Just below Bozza street another motor bus of defendant company had turned south from Bozza street and was headed south on Washington avenue. The evidence discloses that this bus was stopped east of the west curb of Washington avenue and was parked directly across from the north-bound bus, with the result that the two busses of the defendant company occupied all but about 5 or 5% feet of the traveled portion of Washington avenue. There was, apparently, no other moving vehicular traffic on Washington avenue between the automobile being driven by Mrs. Keiser, and the parked busses of the defendant company.

As we have indicated, plaintiff, who had been totally blind for about four or five years at the time, was seated in the front seat of the automobile being driven by her daughter, Mrs. Keiser, between Mrs. Keiser and Mrs. Laszewski. Mrs. Keiser’s child was in plaintiff’s lap. At the top of Washington street hill, going south, Mrs. Keiser had stopped her automobile and a bottle was made available for the baby. Thereafter, Mrs. Keiser started to drive south down Washington avenue toward Bozza street. When the car had reached a point about 180 feet distant from the Bozza street intersection she saw the defendant’s busses standing on Washington street south of Bozza street. Mrs. Keiser stated, that she thought, there was space enough between the two busses for a car to go between them, but it developed that there was not sufficient space for her car to pass between the busses. The brakes on Mrs. Keiser’s car apparently failed to work and as she was heading in the direction of the busses she stated, “We are going to have a wreck.” About four or five seconds elapsed between the time of the making of that statement and the collision. There was a violent collision as the Keiser car struck the left side of defendant’s bus, which was on the east side of Washington street. The Keiser car had been traveling at about 25 to 30 miles an hour at the time of the collision. The collision caused the Keiser automobile to be completely demolished. As the result of the collision, plaintiff suffered a severe fracture of her right knee cap, and she was hospitalized and surgery was required to unite the broken patella and to close the wound. She has suffered permanent injury to the knee, and limitation of flexion, and, likewise, incurred substantial medical expense. Defendant in this action does not question the amount of the damages awarded by the jury in the court below.

Defendant Coach Company, on this appeal, contends that the court below erred in disallowing its motion to strike the second amended complaint, its motions for directed verdict, and motions for judgment notwithstanding the verdict, and for new trial, as well as motion in arrest of judgment. The contentions of the defendant can best be summarized as being, (1) That defendant Coach Company was not liable because the sole proximate cause of plaintiff’s injuries was the negligence of Mrs. Keiser; (2) That plaintiff was guilty of contributory negligence; (3) That the complaint of plaintiff was insufficient; (4) That a certain instruction given on behalf of plaintiff constituted prejudicial and reversible error; and (5) That the verdict was against the manifest weight of the evidence. We do not believe that any of these contentions, in the state of the record, justify a reversal of this cause.

As we indicated in our previous opinion in this cause (Belcher v. Citizens Coach Co., Inc., and Elizabeth Keiser, supra), the blocking of a highway or overcrowding of a pavement has been held to constitute negligence which could constitute a proximate cause of a collision even though negligence of a third party intervened in the chain of events leading to the injury (Rhoden v. Peoria Creamery Co., 278 Ill. App. 452). We also indicated that the jury has a right to determine as a question of fact what was the proximate cause of the collision under a state of facts such as we find in the instant case, and that a jury could be justified in concluding that the defendant Coach Company was negligent, and that such negligence was a proximate cause of the injury to plaintiff.

Similarly, we indicated that the question of plaintiff’s due care was one for the jury to determine, and that under the facts plaintiff was not chargeable with the negligence of the defendant Keiser (Thompson v. Atchison, T. & S. F. Ry. Co., 258 Ill. App. 123, 131). It is difficult indeed to understand the contention that á blind woman could be charged with contributory negligence, as a matter of law, where she hears a statement that a collision is about to occur four or five seconds before it does occur and she does or says nothing. It seems to us there would have been greater likelihood of negligent conduct contributing to the accident if some attempt had been made by the sightless woman to interfere with the probable efforts of the driver to avoid an accident. There are enough hazards in driving which result from directions from those who apparently are able to see.

It is obvious from a review of the record that a question of fact was raised by the proof, and that the jury’s findings should not be set aside as being against the manifest weight of the evidence (Goldstein v. Metropolitan Life Ins. Co., 324 Ill. App. 168, 174). Two juries have found the issues in favor of the plaintiff as against this • defendant (Jenisek v. Riggs, 320 Ill. App. 158, 163). There is no basis in the record upon which this court could be justified in setting aside the judgment as being against the manifest weight of the evidence.

As to the contention that the second amended complaint, upon which the cause was tried, fails to state a cause of action, we should note that defendant failed to challenge the complaint upon the first appeal. The complaint contains a general averment of negligence as against the defendant Coach Company. It is true that in the complaint another defendant was charged with wilful and wanton misconduct, but those allegations could be treated ■ as surplusage insofar as this proceeding is concerned, since the action against the Coach Company alleges a different breach of duty, that is, the negligence on part of the Coach Company growing out of the same transaction, and which is set up in the same count. The evidence justified the conclusion by the jury that the Coach Company was guilty of negligence in angle parking and double parking of the busses so as to obstruct the street. Under the ■ circumstances and in view of the record, the complaint is adequate to sustain the verdict and the judgment (Scally v. Flannery, 292 Ill. App. 349, 352).

The instruction complained of by defendant company states that plaintiff’s complaint alleges that defendant carelessly parked two of its busses along Washington avenue so that traffic traveling south could not operate and safely proceed, and that as a direct and proximate result thereof, the automobile in which plaintiff was riding collided into one of the busses, whereby plaintiff was injured, and such instruction goes on to state that, if the jury found from a preponderance of the evidence and under the instructions of the court that the defendant was negligent as so alleged, and that such negligence, if any, was the proximate cause of the collision and injuries in question, if any, and that the plaintiff immediately, before and at the time of the collision was in the exercise of due care and caution for her safety, then that the jury might find the issues in favor of plaintiff “even though they may also believe from the evidence that the driver of the automobile in which plaintiff was riding was also guilty of negligence in the operation of her automobile, which negligence, if any, contributed to said collision.” It is contended that the instruction leaves out the element of the negligence of the driver of the automobile being an intervening, independent, efficient proximate cause of the collision and the plaintiff’s injuries, that is, whether the negligence of the driver of the automobile, Mrs. Keiser, was the sole proximate cause of the collision. The instruction requires that defendant’s negligence be the proximate cause of the injuries sustained by plaintiff before the jury could find in favor of the plaintiff. The term “proximate cause” presupposes that there was no intervening or independent cause. If the jury found the facts as outlined in the instruction, to be established by the preponderance of the evidence, then there was no independent intervening cause (Wennmacher v. Choate, 224 Ill. App. 42, 49; Anderson v. Steinle, 289 Ill. App. 167). The instruction complained of did not direct a verdict, but merely announced a rule of law applicable to the facts in this case. Under the facts and in view of the instructions given, we do not believe the giving of the instructions complained of constituted reversible error.

The judgment of the circuit court of Madison county will, therefore, be affirmed.

Affirmed.

Stone and Bartley, JJ., concurring.


author: Mr. Justice Stone

text:
    Empire Fluorspar Company, Appellant, v. E. A. Knight et al., Appellees.
    Term No. 45F2.

      Heard in this court at the October term, 1945.
    Opinion filed January 7, 1946.
    Rehearing denied February 14, 1946.
    Released for publication February 14, 1946.
    Franklin J. Stransky, Francis V. Healy and Robert G. Dreffein, all of Chicago, and A. E. Somers, of Harrisburg, for appellants; Franklin J. Stransky, of Chicago, of counsel.
    Feirich & Feirich, of Carbondale, Charles Durfee, of Golconda and Clarence E. Scward, of Elizabeth-town, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

This is a suit brought by Empire Fluorspar Company, a corporation, plaintiff appellant, hereinafter designated as plaintiff, against E. A. Knight, individually, and E. A. Knight, A. D. Knight, and E. C. Clark, a copartnership, and others, defendants appellees, hereinafter designated as defendants, for an accounting for unpaid royalties covering the five year term of a written fluorspar mining lease dated March 12, 1927, executed by said company and said ■ copartnership on the basis of the terms of said lease and also for damages to the property. In addition thereto, plaintiff asks for an accounting covering the years 1932 to 1937, inclusive, during which time it is alleged said partnership, after the expiration of said lease, as trespassers, wrongfully and without knowledge of plaintiff company, removed and sold fluorspar, zinc and other minerals from property owned by plaintiff.

The pleadings are quite voluminous. Count 1 of the amended complaint sets forth that plaintiff on March 12, 1927, was an Illinois corporation and was lawfully possessed of lands situated in Pope county, Illinois, aggregating 514 acres, together with all minerals underlying said lands, including fluorspar, lead, zinc and mining equipment; that on March 12, 1927, it executed a five year term written lease with said E. A. Knight, A. D. Knight, and E. C. Clark, a copartnership ; said count setting forth in haec verba a copy of said lease; that at said time the top surface of the soil on said lands was in good level, affording easy access to the various shafts of the mines for the purpose of carrying on mining operations; that after the execution of said lease and during the five year term thereof, said defendants entered into mining operations under said lease, removing therefrom upwards of 10,000 tons of fluorspar and large quantities of lead, the exact tonnage and amounts of which could not be ascertained without an accounting by said lessees; that said lease by its terms terminated on March 11,1932; that said lease also provided that said lessees would pay plaintiff company a royalty of $1.50 per ton on all fluorspar mined and marketed and 10 per cent of the gross proceeds of all other minerals taken from the property, with a guaranteed minimum royalty of $2,400 per annum after the first year; that at the time said lease was executed one Prank H. Staubitz was plaintiff company’s president and manager, but that he died on May 15, 1930, and for a time said company was without management; that said E. A. Knight while one of the lessees of plaintiff company, and while said lease was in force and effect, acquired 334 shares of the stock of plaintiff company; that thereafter on July 29,1930 at meetings respectively of the stockholders and directors of plaintiff company said E. A. Knight was elected a director and vice president.

Said count 1, of the complaint further alleged that said E. A. Knight was possessed of a broad and extensive experience in matters of and concerning business, finance and corporate management, and was trained and skilled in the operation of fluorspar mines; that at all times after the death of Frank H. Staubitz, E. A. Knight was the only director of plaintiff company intimately acquainted with its business affairs and with any mining operations on said property ; that the remaining directors of said company resided a long distance from said property and having taken no active interest in the affairs of the plaintiff’s business, except as to royalties paid by said lessees under and by virtue of the terms of said lease; that on July 29, 1930, L. P. Staubitz, the owner of 333 shares, Nellie E. Pierce, executrix of the estate of Henry B. Pierce, deceased, the owner of 333 shares, and E. A. Knight, the owner of 334 shares, in plaintiff company, were elected directors; that at the directors meeting immediately following said L. P. Staubitz was elected president, E. A. Knight, vice president, and one Grover E. Holmes, secretary and treasurer; that in or about the latter part of 1932, said E. A. Knight was elected to the office of treasurer of plaintiff, company and continued to act as such until the 8th day of November 1937, when A. C. Churchill was elected a director and secretary treasurer of said company; that the said L. P. Staubitz and the said Nellie E. Pierce reposing confidence and trust in said E. A. Knight as a confidential advisor and one of the directors of plaintiff company and believing his statements to be true, made no further demand on said E. A. Knight for an accounting until on or about the 8th day of November 1937, when A. C. Churchill, newly elected director and treasurer-elect of plaintiff company, demanded of said E. A. Knight that he report his acts and doings as treasurer of plaintiff company ; that at said time said E. A. Knight advised A. C. Churchill that he was unable to render an itemized statement of receipts and disbursements or to furnish any information about the affairs of plaintiff company for the reason that all books and records of plaintiff company were lost and destroyed.

Said first count further alleged that during all the period of time said E. A. Knight acted as director and lessee of plaintiff company he assumed a fiduciary relationship toward plaintiff company; that during the time of said relationship he made large and divers profits and gained much property by reason of his relation as lessee and director of plaintiff company; that after the time said E. A. Knight was elected to the office of treasurer up to November 8, 1937, no corporate meetings were held nor was any business transacted or communicated to the remaining directors, except with reference to the filing of income tax, capital stock tax and franchise tax returns.

Count 2 was substantially the same as count 1.

Count 3 set forth that in or about the month of March 1938, plaintiff learned for the first time that after the expiration of the five year term of said lease, and during the years 1933 to 1937, said E. A. Knight, A. D. Knight and E. C. Clark, individually and as copartners, without any right or authority and as unlawful trespassers, employed various persons (naming them) to enter plaintiff’s property and to remove fluorspar to the extent of 9,000 tons, owned by plaintiff and without the knowledge or consent of plaintiff.

In their several separate and joint answers said defendants admitted the corporate existence of plaintiff company and the ownership by it, on March 1927 of 514 acres of land described in the complaint. They further admitted that after the death of Frank H. Staubitz, he, the said E. A. Knight was named as director and vice president of the company.

Defendants averred that they had no sufficient knowledge of matters set forth in the complaint to enable them to answer with reference to what occurred at the meeting of the board of directors on March 28, 1938, at which meeting there were present E. A. Knight, L. P. Staubitz, and A. C. Churchill, and with reference to large portions of fluorspar and other substances being taken out of said mine without lawful right or authority during the years, 1933, 1934, 1935, 1936 and 1937, or with reference to the filing of reports as required by the State of Illinois.

The answers further set forth, by way of special affirmative defense, that at the expiration of the five years mentioned in said lease, they elected to and did extend the terms of said lease from year to year for five years in keeping with the terms thereof, and that from time to time after the commencement of said extension they continued the operation of the mine, paying the plaintiff company a royalty of $1.50 a ton.

It is further set forth in the answers, as a special affirmative defense to count 3 of the amended complaint, filed August 15,1940, that the extension of said lease and their possession and operation of the mine was fully known and acquiesced in by plaintiff and that in the operation of said mine said E. A. Knight, A. D. Knight and E. C. Clark, said lessees, did employ workmen to aid in the operation thereof, and that plaintiff is estopped from claiming that said defendants, or either of them, is guilty of trespass, and deny that they should be required to account.

Defendants further averred that on the 4th day of August 1927, plaintiff sold and assigned to one Albert Likens all of the royalty provided for and coining to it under the terms of said lease and authorized and directed said defendants as lessees to pay to said Albert Likens the royalty payments under said lease and that thereafter, pursuant to said authorization said defendant paid said royalties to the said Likens and that plaintiff in consequence is estopped from demanding payment of said royalties from these defendants.

On August 15, 1940, defendants E. A. Knight, A. D. Knight and E. C. Clark filed their answer to count 2 of the amended complaint in which they set forth as an affirmative defense, an alleged cancellation or waiver of paragraph 5 of the lease providing that the lessees would guarantee and pay a minimum royalty to plaintiff from and after the year 1927 of $2,400 per annum, which said cancellation or waiver it was alleged was made with Prank H. Staubitz (then deceased) president of plaintiff, through a verbal conversation alleged to have been had between said Prank H, Staubitz and E. C. Clark, one of defendants.

By amendments subsequently filed October 13, 1941, by E. A. Knight, individually and by E. A. Knight, A. D. Knight and E. C. Clark, individually and as co-partners, said defendants further set forth as a further affirmative defense the claim that the alleged wrongs set forth in said amended complaint if committed at all were barred by the five years Statute of Limitations.

In answer to the allegations of the complaint that defendants had from 1933 to 1937, both inclusive, without right or authority mined and carried away approximately 9000 tons of fluorspar, defendants as an affirmative defense alleged that on or about the 29th day of July 1933, defendant E. A. Knight became a director and officer of plaintiff company, and as such knew of these operations, and acquiesced therein and the knowledge of said E. A. Knight as such officer was properly chargeable to plaintiff company, whereby said company should be held estopped from complaining of such wrongs.

Defendant E. A. Knight also set up a tender of $1,314.30, as another affirmative defense.

Replications filed by plaintiff denied any and all new matters as set forth in said answers and amendments thereto, and rejoinders were filed by defendant E. A. Knight individually and E. A. Knight, A. D. Knight, and E. 0. Clark, a copartnership, denying the affirmative averments of said replications.

The cause was referred to a special master in chancery, to take proof and report findings.

The master recommended a decree against E. A. Knight for $1,314.30, which was the amount tendered, without costs, also a decree against E. A. Knight, A. D. Knight, and E." C. Clark, partners in the amount of $2,638.46 and costs, and that suit be dismissed as to all other defendants.

Both plaintiff and defendants filed objections to the report of the master, which were allowed to stand as exceptions, and all exceptions were overruled by the court except that one half of the costs were assessed against the plaintiff and judgment for the remaining half was given against the partnership. From this decree, appeal is prosecuted to this court.

The record is large. It is shot through with accusations, charges of false swearing, deception, fraud, violation of fiduciary relations, contradictions, etc. This makes more important than usual the findings of the master, approved by the chancellor. The master saw the witnesses and heard them testify. He doubtless had personal acquaintance with most, if not all, of them. He was in a much better position to judge of the weight and credibility to be given to their testimony than an appellate court can be.

To the findings of the master, and his supplemental findings, a very large number of objections was filed by the plaintiff. Most of these, however, are not urged here, and consequently are considered waived by this court. We shall deal with the case on the assignments of error of the respective parties which are presented to this court in the briefs.

On March 12,1927, the defendants Knight, Knight & Clark took possession of the premises in question and operated them as fluorspar mine for a period of some nine to ten years, the exact length of time being somewhat indefinite in the record. The character and right of their operations for a part of that time is brought strongly in question.

The case may well be divided into two phases: first, the period from 1927 to 1932 under which the defendants operated in pursuance of the lease; secondly, the balance of the time under circumstances which the plaintiff has sought to designate as trespass.

The first assignment of error is: “The Master erred in finding and recommending, and the Chancellor erred in approving, the portion of the Master’s Report which found by inference only that during the time said defendants mined, removed and sold fluorspar and other minerals from the mine in question covering the period from 1933 to 1937, they did so as a matter of right with full knowledge on the part of plaintiff that mining operations were going on during all of such time; the Master and the Chancellor should have found from the evidence that there was no renewal of said lease from year to year and no waiver of the advance deposit of $1,000 per year as specified in said lease, and that the plaintiff did not have knowledge of the operations going on on said premises during 1933 to 1937, and did not know of such operations until sometime in 1938 and that during said time defendants mined said premises without right or authority as trespassers and were liable, as such, for the full value of the fluorspar removed and sold. ’ ’

This assignment, if we take them in their order, compels us to discuss the second phase of the tenancy first. Surely defendants would not be trespassers merely by the fact that they continued to operate the mine after the first five year term expired. The lease gave them right to do that. Furthermore, it was done under the direction of two of the stockholders of plaintiff, one of them a director. It is apparent, therefore, that the claim of plaintiff that defendants were trespassers is based upon the fact that defendants did not pay the sum of $1,000 advance royalty. That brings us to a discussion as to whether this advance royalty was waived. The master found that it was. Beyond these contentions the evidence shows that defendants paid the $1.50 royalty on all fluorspar taken from the Empire mine, and the mine got the benefit of it either in payment of its debt, or in cash. It would not be a trespass to mine the ore at the price agreed upon in the original lease. The alleged trespass, therefore, must rest upon the failure to pay the $1,000 royalty. Otherwise the terms of the lease were complied'with.

To our minds, this $1,000 royalty as well as the $2,400 royalty which was to obtain during the first five years of the lease is conclusively shown by this record to have been waived. First of all, two witnesses called by plaintiff, E. C. Clark and Mr. Likens, testified that they visited the president of plaintiff with the lease in their pocket, for the purpose of cancellation; that they told him that they could not operate and pay the $2,400 advance royalty, and that they had decided to give up the lease. This the lease provided for in terms. The president then told them to go ahead, pay the royalty of $1.50 and that the company would waive the advance royalty. This evidence is undisputed. The president at that time was the sole manager of the company, had the authority to speak for it, and in our judgment under the law had undoubted power to waive or cancel this portion of the lease. Secondly, said waiver was acquiesced in by all the parties and no demand was ever made for it again by anybody until this lawsuit was started, Plaintiff knew, — it must have known, through its president it was charged with such notice, — that the mine was being operated on the new scheme of $1.50 royalty per ton. This made a perfect setting for the waiver of the $1,000 royalty for the last five years, if, in fact, it did not fully waive it as a modification of the lease. It was apparent to everybody concerned that defendants could not operate the property and pay the $2,400 advance royalty; they were losing money. Is it likely that under that circumstance they would take up the proposition of a thousand dollars'a year royalty for the second five years, after the mine had been worked and obviously could not offer the hope of being as good a mine as it was the previous five years % The waiver of the advance royalty was a reasonable thing to expect under the circumstances. The proof shows affirmatively that it was waived. When we add to this the doctrine of constructive knowledge on the part of the stockholders it seems to us conclusive that all parties acquiesced the arrangements. It would be a very unusual circumstance that the stockholders of plaintiff would sit idly by and never inquire what was going on in and about their property for years. The very things which plaintiff now claims helped to deceive them were enough to put them on inquiry. They made no complaint. In this they were distinctly negligent.

As to assignments 2 and 3, 4 as in our judgment the proof shows that both advance royalties had been waived, there is nothing further to say except that the master was wrong and that the chancellor erred in not finding that the $2,400 royalty had been waived.

It is urged that E. A. Knight acted in a fiduciary capacity to plaintiff. This might present a debatable question were it material here. However, if we are correct in our conclusion that the advance royalties were waived, then the record shows that E. A. Knight fully discharged any obligations which the law placed upon him because of such fiduciary relation.

From this point this case proceeds upon the accounting which was made under the direction of the master in chancery, and which accounting has been approved by the chancellor. Bitter attacks are made upon the character of proof admitted whereby the master made his findings of accounting, but nothing-affirmative is shown. It is not enough to say that evidence is untrustworthy unless the court is shown wherein it is untrustworthy. The record in this case shows that the original/record of accounts of the defendant was in court; that an audit was made from it, that it was open for examination to plaintiffs and that plaintiffs actually used it on cross-examination. Much is said about the books of the company being washed away by the great flood which came upon that locality and effected this defendant company. This book, among- other property, was washed away and lost and remained lost for some two or three years until it was found in a barn where the witness who identified it had left it. Plaintiff attacks this and attempts to ridicule it and casts suspicion upon it. Maybe it looks suspicious, but the fact remains that the evidence shows affirmatively that it is the book of accounts, that it was found and that it was brought into court for all parties to use. Courts cannot decide issues of importance on suspicion or vituperation. There is no evidence of an affirmative character which in any way contradicts the statements of the witness concerning this book. The only thing that is said against it is in substance that it is very fishy.

The auditor Harry Curtis made an audit of this book. The sheets of the audit are in evidence as defendant’s Exhibits 12, 13 and 14. This audit was made in the usual way; was offered to the court in the usual way with the book of accounts on which it was made in the court ready to be offered in evidence, and we cannot see, under the authorities, wherein it fails to be competent. Whether or not it is trustworthy is a subject that counsel may believe or not believe, and may argue for or against. But the fact is that it was in evidence, and competently in evidence in. our judgment. Stevick v. Vennum, 227 Ill. App. 86; People v. Hartenbower, 283 Ill. 591. The master acted upon it, and that cannot be overthrown by the mere statement that the finding of the book was fishy, and that the evidence of the witness Curtis was not to be believed. Issues are not decided that way. Further it was shown by this book and testified to by the witness who made the figures, that they were made in the regular course of business; they came from the shipping accounts, and that they are true and correct. The evidence also shows that the accounts of the three or four mines which the defendant operated were kept separately, and that the product mined from the various mines was never commingled until it was actually put in the car. Each had a separate bill of lading.

So we cannot understand the claim of the plaintiff for the large amount of fluorspar which it said was mined between 1932 and 1937 and sold and not accounted for except upon the theory that they claimed an interest in all the product which came from the various other mines which defendants operated. This is not borne out by the evidence and the conduct of the parties in dealing with the product of the different mines is not such as to make defendant responsible for plaintiff’s claim of all of the amount of fluorspar that was handled by the defendant during those years. Such claim, it seems to us under the facts and circumstances and the actual proofs shown by this record, are extravagant indeed. So far as we can see from the evidence in this record the master and the chancellor ruled correctly as to the accounting for those years.

Much argument is indulged in by the plaintiff on the question of the tender made by E. A. Knight of $1,314.30, the amount of his individual indebtedness. In this argument counsel made the unqualified statement that no tender was ever made. It is difficult to deal with statements of this character which are entirely disproven by the record. The evidence shows conversation between the agents of plaintiff and Mr. Knight in which this tender was made and the parties agreed to accept it as payment in part, which Mr. Knight declined. Had he accepted their proposition it would have been a suggestion at least, if not ah admission, that it was only in part payment and that he still owed more. But the point about it is that all hands know that this tender was made in manner and form as it was made.

After this naked statement that no tender was made plaintiff proceeds with argument that the tender was not kept good. This is a very certain admission that the former blanket statement was wrong. It would be difficult indeed to keep good or not keep good anything which never was made at all. We have gone through the law cited and other cases on the subject of tender. This tender is not subject in our judgment to the technical rules laid down in cases at law. The evidence here shows that Mr. Knight made the tender, that he was ready, able and willing at any time to pay it and that he actually deposited it in the bank waiting until such a time that it should be paid. This the chancellor held was a sufficient tender in equity. In Thompson v. Crains, 294 Ill. 270, our Supreme Court said in substance “that in a court of equity the law interprets the conduct of the parties as to a tender according to their apparent intention and determines its sufficiency upon the objections which are then stated.” We are of the opinion under the facts and circumstances shown by the evidence that the chancellor ruled correctly in holding that Mr. Knight made the tender and that said tender was kept good as a tender in equity.

Unless we were disposed, which we are not, to wipe out the accounting made by the master in chancery and approved by the chancellor, this case must rest upon whether the waivers of the advance royalties were had. As to the facts of these waivers there can be no question from this record. As to their legality we find ample authority in the following authorities: Selman v. Geary, 334 Ill. 642; Becker v. Morstadt, 381 Ill. 422; Geo. E. Lloyd & Co. v. Matthews, 223 Ill. 477; Independent Brewing Ass’n v. Powers, 80 Ill. App. 471; Rosehill Cemetery Co. v. Dempster, 223 Ill. 567.

A decision of this case has been made difficult and laborious because of the minutia of argument on matters which have been of no probative value to this court. The plaintiff far from carrying the burden of proof has offered little or no affirmative evidence to prove its complaint. Much has been written on the theory of throwing suspicion on much of the evidence, both oral and documentary, offered by the defendants, but affirmative proof is lacking. The master elected to believe the witnesses.

When all is said and done the simple story is that the defendants leased the mine in question from the plaintiff; they operated it for some 10 years, paid a dollar and a half a ton royalty on the fluorspar taken therefrom. The advance royalties were waived. The master’s report is replete with figures showing the payments of these royalties. There is substantially nothing to dispute the accuracy of these figures.

The trial court did not abuse its discretion in apportioning the costs. However, since the account of this case is to be recast, it may become necessary for the trial court to review, and perhaps recast, his own findings and orders as to costs. This should be done in pursuance of the new account.

Except as to the error of the court in refusing to hold that the $2,400 advance royalty was waived, we find no error in this record to justify a reversal. In view of the holding as to that royalty it is our judgment that this case should be reversed and remanded to the trial' court with instructions to that court to recast its account in harmony with the views herein expressed. It is so ordered.

jReversed and remanded with, directions.

Culbertson and Bartley, JJ., concur.


text:
    Birtie Recklein, Appellant, v. Alvin Recklein, Appellee.
    Term No. 4,502.
    Heard in this court at the October term, 1945.
    Opinion filed January 7, 1946.
    Released for publication February 7, 1946.

      McGlynn & McGlynn, of East St. Louis, for appellant; Charles M. Whealon, of counsel.
    Goldenhersh & Goldenhersh, of East St. Louis, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of St. Clair county wherein an original decree for divorce was modified. The original decree for divorce was entered and filed on the 27th day of October 1944, wherein, Birtie Recklein, plaintiff appellant, who will be hereinafter called plaintiff was awarded a divorce from Alvin Recklein, defendant appellee, who will be hereinafter called defendant.

By the terms of the decree plaintiff was awarded defendant’s interest in and to certain real estate which was in the name of the parties, as joint tenants, said award being in lieu of any and all alimony to which plaintiff might be entitled.

On the 15th day of March 1945, defendant filed a petition to modify the aforesaid decree, setting up as reason therefor that plaintiff and defendant had, prior to the divorce proceedings, entered into an agreement regarding the real estate.

Plaintiff filed a motion to dismiss the petition to modify, and after the court overruled said motion, the cause was heard before the court, and the court ordered the original decree modified to the extent that plaintiff quitclaim her interest in and to the real estate to defendant, upon the payment to her, by him, of the sum of $500, for said interest. Plaintiff prosecutes her appeal to this court and alleges as error relied upon for reversal that the lower court erred in entertaining and granting defendant’s petition to modify decree since more than 30 days had elapsed since the filing of the original decree and the court was without jurisdiction to entertain or grant said motion.

The record discloses that plaintiff filed suit for divorce, personal service was had upon defendant, he defaulted, and the cause was heard by the court as a default matter. Upon the hearing, or the petition to modify, defendant testified that after he was served with the summons, he went to the home of plaintiff and talked to her, and that it was then and there agreed that she was to take $500, for her interest in the property, for the raising of which amount defendant was to have 10 days, and that because of that agreement he did not appear and defend. Plaintiff testified that this proposition was discussed, but not agreed upon.

It is conceded by defendant that as a general proposition, a decree becomes final after the expiration of 30 days, but contends that the exception to this rule is that a court in chancery has jurisdiction at any time to correct a judgment obtained by fraud. To sustain this contention defendant relies largely upon the cases of Nash v. Park Castles Apartment Bldg. Corp., 384 Ill. 68; and Callner v. Greenberg, 376 Ill. 212.

We do not believe that these cases are in point. In the former case, a receiver appointed in a tax receivership proceeding had filed a report and final accounting and it was shown that the report of the receiver was incomplete and inaccurate. The court held that if the report of the receiver was inaccurate and false, he had perpetrated a fraud on the court and would constitute sufficient grounds, for vacating (not modifying, as in the instant case), the judgment, even after the term at which it was entered. The court held that the order approving the report was not a final order, which would oust the court of further jurisdiction. The court said, “We are satisfied, from the record, that the Circuit Court did not lose jurisdiction of the cause by any orders entered. Such jurisdiction continued and will continue until the receivership matter is entirely closed . . . .” Both in this case, and in the Callner case, the only question relating to jurisdiction was whether or not a court may entertain a petition to vacate or set aside a decree for fraud, under the general equity powers of the court.

Courts of equity have no inherent powers in cases of divorce. The jurisdiction of courts of equity to hear and determine divorce cases, and all matters relating thereto, is conferred only by statute. Smith v. Smith, 334 Ill. 370. While such courts may exercise their powers within the limits of the jurisdiction conferred by the statute the jurisdiction depends upon the grant of the statute and not upon general equity powers. Smith v. Smith, supra; Smith v. Johnson, 321 Ill. 134. Section 18 of the Divorce Act [Ill. Rev. Stats. 1945, ch. 40, par. 19; Jones Ill. Stats. Ann. 109.186] does not enlarge the general equity powers of the court. It reserves a limited power to review alimony decrees. Being in the nature of a special power it will not be extended beyond its terms.. It only authorizes the court to make “alterations” in the allowance of alimony “as shall appear reasonable and proper.”

In the instant case it appears that there were no children born of the marriage, and no weekly, monthly or yearly allowance of alimony, which the court would be empowered to modify at any time according to the varying circumstances and needs of the parties. Where the decree of divorce awards a sum in gross for or in lieu of alimony, as was done herein, the decree will be regarded as final. Maginnis v. Maginnis, 323 Ill. 113. In the case of Martin v. Martin, 195 Ill. App. 32, at page 34, the court said: “No complaint is made as to the action of the last-mentioned chancellor in denying the motion to modify that portion of the decree in regard to alimony and solid-tor’s fees, and it is plain that the chancellor acted properly in that regard. Where the provision for alimony in the decree takes the form of a weekly, monthly or yearly allowance, the power is expressly reserved by the statute to modify such a provision of the decree at any time, according to the varying circumstances and needs of the parties, but in the present case the decree awarded a sum in gross for alimony and such a decree is final, and the chancellor before whom the motion to modify was made had no power to change the same, the term at which the decree was entered having gone by.”

We are constrained to hold that the trial court had no jurisdiction to entertain a petition to modify the decree in question, after the lapse of 30 days, and the cause will be reversed.

Reversed.

Culbertson and Bartley, JJ., concur.


text:
    Charles L. Porter, Appellee, v. Terminal Railroad Association of St. Louis, Appellant.
    Term No. 4,506.

      Heard in this court" at the October term, 1945.
    Opinion filed January 7, 1946.
    Rehearing denied February 14, 1946.
    Released for publication February 14, 1946.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.
    Jos. B. MgGlynn, of East St. Louis, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is an action instituted by Charles L. Porter, plaintiff appellee (hereinafter called plaintiff) against Terminal Railroad Association of St. Louis, a corporation, defendant appellant (hereinafter called defendant), in the circuit court of St. Clair county, to recover damages alleged to have been sustained by plaintiff on account of personal injuries suffered by him on the 13th day of October 1941. He was then employed as a pilot by defendant, and was engaged in •piloting a locomotive engine from the Ashley street plant of the Union Electric Company of Missouri to the Cahokia plant of the Union Electric Company of Illinois. The accident occurred on the tracks of the Union Electric Company of Illinois, south of East St. Louis, Illinois. Plaintiff sustained a fracture of the right leg and other serious injuries.

The suit is brought under the provisions of the Federal Employers ’ Liability Act and the Federal Safety Appliance Act.

Plaintiff’s complaint contained one count. It alleged in substance that defendant was a common carrier, engaged in intrastate and interstate commerce; that for 21 years plaintiff had been employed by said defendant as a switchman; that on the 13th day of October 1941, plaintiff was instructed by defendant to pilot a steam locomotive from the Ashley plant of Union Electric Company of Missouri, in St. Louis, via defendant’s lines, to the Cahokia plant of the Union Electric Company of Illinois, at East St. Louis, Illinois ; that pursuant to said instructions, under its own power operated by the Electric Company’s crew, said locomotive was taken to a point near the Cahokia plant, where it was derailed, while plaintiff was riding in the cab. He was thrown to the ground and injured.

Together with other allegations of negligence on the part of defendant, it is alleged that defendant failed to use ordinary care to make the place where plaintiff’s duties as pilot of said locomotive required Mm to be, reasonably safe.

Defendant’s answer admitted being a common carrier, denied that at the time of the accident, both plaintiff and defendant were engaged in interstate commerce, and denied the other material allegations of the complaint.

The cause was tried before the court and a jury. At the close of all of the evidence offered on behalf of plaintiff, defendant moved for a directed verdict. This motion was denied. At the close of all the evidence in the case, defendant renewed its motion. This was also denied. The jury returned a verdict finding defendant guilty and assessing plaiiitiff’s damages at the sum of $17,500. A motion for a new trial was filed by defendant and was overruled by the court. Judgment was entered for the above sum and this appeal was perfected.

The record discloses that pursuant to defendant’s order of October 13, 1941, plaintiff took charge of Union Electric Company steam locomotive Number 1, to pilot it to the Cahokia plant of the Union Electric Company of Illinois. Plaintiff was an experienced railroad man and an experienced pilot, having been employed by defendant for 21 years. The locomotive in question was operated by an engineer and fireman, who were employees of the Union Electric Company, furnished to defendant for the purpose of transporting the engine from the plant in St. Louis to the East St. Louis plant. The duties of plaintiff were to pilot the engine over the company’s tracks, or any tracks that the engineer or fireman was not familiar with; to line switches for them; telling the engineer where signals were for or against him and when to stop and go on signals; to call up the yardmaster and get the route over which to travel and on arriving at destination to report to station master at Union station and ask him for further instructions. It is undisputed that plaintiff was at all times under the direction of his superiors in the employ of the defendant; that he had to get clearance from the yardmaster at St. Louis and authority and direction as to what rails to use in going over the Merchant’s Bridge between St. Louis, Missouri and East St. Louis, Blinois; that he again had to get clearance orders and directions as to the tracks he was to use in going through East St. Louis ; that it was his duty to stay with the locomotive until it had been delivered inside the Union Electric plant, and that he was not to be relieved from duty until he would go to St. Louis and make out a written report as to what he had done.

The evidence shows that plaintiff rode the front footboard of the locomotive for about a quarter of a mile, but due to the lightness and construction of the engine, he was bounced around so much that it was unsafe for him to continue riding there and he made the rest of the journey in the cab of the locomotive.

After leaving St. Louis, they crossed the Mississippi River via the Merchant’s Bridge to Madison, Illinois, thence through Venice, Brooklyn and East St. Louis. After leaving East St. Louis, the journey commenced over the rails of the G. M. & O. R. R. to a switch that led over the rails of the Union Electric Company, thence across a public road and thence inside the fence of the Union Electric Company. Immediately upon leaving the rails of defendant company, plaintiff advised the engineer in charge of the locomotive that he had never before been over the rails from that point on; inquired of the engineer if he had been over them and was advised by him that he was completely familiar with the rails, as he was the man who used to deliver their engines at Cahokia. He then told the engineer that he, the plaintiff, would have to rely upon him to show him the way from there on, and advise him as to the rules, signals, and location of switches.

As they proceeded along the Gr. M. & 0. rails, the engineer indicated a switch that was necessary to be thrown, and plaintiff unlocked it, let the engine through, threw the switch back, locked it, and climbed back on the deck of the locomotive on the right side or engineer’s side, where he was at the time of the accident. At this time the locomotive was still several hundred feet outside the Cahokia plant. After they had proceeded something in excess of 150 feet they struck a derailer on the rails, causing the engine to be derailed and injuring plaintiff.

The undisputed evidence in the record is to the effect ' that for a distance of about one hundred feet before reaching the derailer, weeds had been permitted to grow up, so that one could hardly see any of the roadbed between the rails. Plaintiff testified that there was nothing visible to him on the rails at that point.

There is no question raised as to excessiveness of the verdict. It is conceded by defendant that plaintiff and defendant were both engaged in interstate commerce at the time of the injury and subject to the provisions of the Federal Employers’ Liability Act.

It is argued on behalf of defendant that if the negligence which caused the derailment was an unforeseeable and transitory act of negligence in the operation of the locomotive, in failing to discover or throw the derailer, such negligence was that of either plaintiff or an employee of the Union Electric Company, for which plaintiff cannot recover from defendant. Counsel contend that there was no actionable negligence on the part of defendant, in connection with its duties regarding the furnishing of plaintiff with a safe place in which to work. It follows necessarily, they maintain, that the trial court erred in failing to grant defendant’s motions to direct a verdict in favor of defendant.

It is conceded by defendant, and the evidence is undisputed that plaintiff was an employee of defendant at the time of the accident. The statute under which suit is brought provides in substance: “Every common carrier by railroad while engaging in interstate commerce . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed ... or other equipment,” 45 USCA Sec. 51. It is the duty of the master to furnish the servant with a reasonably safe place to work. This duty also applies to machinery and instrumentalities used by the servant in his work; and this duty follows the master even though the servant is sent upon the premises of another to do his work. This duty is nondelegable and affirmative, and must be continuously fulfilled and positively performed. 45 USCA Sec. 51; Shearman and Bedfield on Negligence, Rev. Ed., Vol. 2, Secs. 193 et seq.; Bailey v. Central Vermont Ry., Inc., 319 U. S. 350; Cincinnati N. O. & T. P. Ry. Co. v. Hall, 243 Fed. 76; Coal & Coke Ry. Co. v. Deal, 231 Fed. 604; Panama R. Co. v. Minnix, 282 Fed. 47; Kansas City Southern Ry. Co. v. Nectaux, 26 F. (2d) 317; Albert Miller & Co. v. Wilkins, 209 Fed. 582; Illinois Terminal R. Co. v. Thompson, 210 Ill. 226; Cummins v. Sanitary Dist. of Chicago, 185 Ill. App. 639; East St. Louis Ice & Cold Storage Co. v. Crow, 52 Ill. App. 573; McBeath v. Rawle, 93 Ill. App. 212; Ohio & M. Ry. Co. v. Wangelin, 43 Ill. App. 324; Sprickerhoff v. Baltimore & O. R. Co., 323 Ill. App. 340; Armstrong v. Chicago & W. I. R. Co., 350 Ill. 426.

There is no evidence that plaintiff ever agreed to a change of masters. There can be no question but what he still looked to defendant as his employer. The presumption arises therefore, that he continued to be the servant of the railroad. There is no way that the contract relationship of master and servant can be created without the consent and assent of both parties, express or implied. That relationship, once established, is presumed to continue until there is evidence of change. Costigan v. New York & S. Ry. Co., 160 App. Div. 597, 145 N. Y. S. 1029.

In a somewhat similar case, Wegman v. Great Northern Ry. Co., 189 Minn. 325, 249 N. W. 422, defendant railroad company made a contract with the Northwestern Telephone Company for the use of the latter company of that portion of the rails of its interstate railway system between two stations in Minnesota for a motor car with trailer to be furnished by the Telephone Company for the transportation of its crews and supplies over defendant’s tracks. For such use of defendant’s rails it was to receive a certain stipulated sum per day. Defendant railroad agreed to furnish a “conductor-pilot” for the motor car. The Telephone Company was to pay for his services. It also agreed to observe and obey all rules, regulations and orders of the defendant railroad and its proper officers applicable to the exercise of the permission to use the rails.

It was further stipulated that the “conductor-pilot” should be regarded as employee of the Telephone Company, which agreed to indemnify the railroad for damages through personal injuries to employees or to property. On October 7, 1930 plaintiff was the conductor-pilot serving with the telephone crew. He was injured in a collision, resulting from the negligence of an employee of the Telephone Company, who was operating the motor car. There was a verdict and judgment in favor of plaintiff, which was affirmed by the Supreme Court of Minnesota. That court held that plaintiff was to be regarded as an employee of defendant, in spite of the contract, and was responsible to defendant. With reference to the question as to whether or not defendant could be charged with the negligence of the employee of the Telephone Company, the court held that where injury results from the negligent operation of a railroad, whether by its owner or by another whom the owner authorizes or permits to use its tracks, both the railroad and the person or corporation permitted to use it were liable, jointly and severally, to respond in damages to the injured parties, ‘ and the negligence of the Telephone Company employee was held to be the negligence of defendant. The court further said that it was not necessary even to inquire whether the negligent employee was a servant of the railroad company.

The case most nearly in point with the case at bar is that of Ryan v. Twin City Wholesale Grocer Co. and Minnesota Transfer Railway Co., 210 Minn. 21, 297 N. W. 705. In this case plaintiff, Ryan, was employed by the Minnesota Transfer Railway Company as a checker and trucker at its Charles street freight depot in St. Paul. Nearby the G-rocer Company did business in a large building on University avenue. By agreement between the two concerns Ryan was sent to the place of business of the Grocer Company to check freight intended to be shipped over the railroad and also freight to be shipped by truck. The Grocer Company agreed to reimburse the railroad for Ryan’s wages, social security tax and its contribution to the pension fund of railway employees. He was directed by his superiors to keep busy and do anything he was ordered to do when not engaged in checking. In obedience to this order, he was taking down some heavy sacks of sugar which had been negligently stacked up by the Grocer Company employees, when one fell on him and seriously injured him. Ryan brought suit against both the Grocer Company and the railroad. The Grocer Company was directed out and there was a verdict and judgment against the railroad, which appealed. In sustaining the judgment of the trial court, the Supreme Court of Minnesota held that for the purposes of the lawsuit the Railway Company would be liable for the consequences of any negligent piling of the sacks of sugar by the employees of the grocery company in the same manner as if the piling had been done by the employees of the railway company in the ordinary course of its business. The court further held that the Grocer Company’s building was the one place wherein defendant had directed plaintiff to do all of his work, hence its duty was to use ordinary care to see that it was a reasonably safe place for that purpose.

So in the instant case, defendant sent plaintiff to the place where he was injured, in the performance of the duties assigned to him. He had no control of the instrumentalities at the place where he was so injured. So far as the plaintiff was concerned the place where he worked and was injured was furnished him by defendant.

Whether or not permitting weeds to grow on the right of way, so that the derailer could not be seen, was negligence, under the facts and circumstances of this case, was a question for the jury. Chicago, B. & Q. R. Co. v. Kelley, 74 F. (2d) 80; Chicago, St. P. M. & O. Ry. Co. v. Henkel, 52 F. (2d) 213.

We are constrained to the opinion that the trial court did not err in refusing to direct a verdict.

It is alleged as error, that the court erred in permitting plaintiff, over objection of defendant to testify to the fact that he informed Wolfe (the engineer) that he had never been over the M. & 0. tracks before. No authority is furnished the court as to why this would be incompetent, and no authority is furnished the court by plaintiff, as to its competency. However, practically the same evidence was elicited on cross-examination by counsel for defendant, and we hold this error, if it was an error, was cured. Error in the admission of evidence offered by one party is cured where practically the same evidence is afterwards introduced by the adverse party or elicited on cross-examination. 4 C. J. 983. In any event we hold that this evidence was immaterial.

It is alleged that the court erred in refusing to give defendant’s instruction number five, which was as follows; ‘ ‘ The court instructs the jury that if you believe from the evidence that the injuries which the plaintiff received were occasioned to him through his sole negligence, then the plaintiff would not be entitled to recover and you should find the defendant not guilty. ’ ’

The instruction so requested was not based upon any evidence on the trial of the case. An instruction not based upon some evidence in the case is improper and it would be error to give it. New Ohio Washed Coal Co. v. Hindman, 119 Ill. App. 287; Peters v. Madigan, 262 Ill. App. 417; Elliott v. Atchison, T. & S. F. Ry. Co., 262 Ill. App. 466.

The same ruling is applicable to instruction number six, requested by the defendant and refused by the court, which is to the effect that if the injuries received by the plaintiff were occasioned to him through the acts of persons who were not the officers, agents, servants or employees of the defendant, then the plaintiff would not be entitled to recover.

Complaint is made of the prejudicial argument to the jury on the part of counsel for plaintiff. Timely objection was made by defendant, and we do not find the argument so prejudicial as not to be cured by the action of the court.

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

Affirmed.

Culbertson and Bartley, JJ., concur.