author: Pleasants, J.

text:
    City of Champaign v. Sarah E. Jones.

      Municipal Corporations—Personal Injuries—Action against City for Negligence—Injury the Result of Negligence and Accident Combined— Liability of Defendant.

    1. Where an injury is the result of accident and the fault of the defendant combined, and each is necessary in the combination to produce the injury, the defendant is liable therefor.
    2. In an action against a city for alleged negligence in the care of its streets, where the evidence showed that, on the first of March, the mud and slush had been scraped to the middle of the street, and allowed to remain there in a ridge over night, when it froze, and was not removed for a week, when the accident occurred, this court holds that the jury were warranted in finding that the city was guilty of negligence.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Champaign County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. S. Philbrick, George W. Gere and E. L. Sweet, for appellant.
    Messrs. Ray & Slauson, for appellee.
   Pleasants, J.

The city of Champaign, in undertaking to clean its main street, which was paved with brick, on the 2d of March, 1888, caused the mud and dirt thereon to be scraped together in a row along the middle of it, which on that night there froze solid, and so remained until after the 9th, when the injury for which this action was brought was received. As appellee, on that day, in a two-wheeled cart drawn by an old and gentle horse, was driving on an easy trot between a hitched team and the mudrow, the team suddenly backed, whereat her horse swerved toward the mudrow, causing the left wheel to strike it, and the cart to be so tilted, and its motion so arrested as to throw her out. For the injury thereby sustained, which was severe and permanent, she recovered judgment below for $2,000. No complaint is here made of the amount awarded her, if the city is liable at all, nor of any action of the court except its refusal to set aside the verdict as being against the law and the evidence. But it is said that this mud, after it was so frozen, could not be removed without the use of the pick, which would endanger the pavement; that the condition of the street was patent and known to the appellee; and that her own carelessness in attempting to pass the hitched team on a trot, in so narrow a way, was the cause of the injury. The case of the City of Centralia v. Krouse, 64 Ill. 19, is cited and relied on as decisive of this.

There the dangerous condition of the sidewalk was wholly due to a disastrous fire, followed by sleet, and the city was in no way at fault, while the plaintiff saw the danger of the attempt to pass over it and took the risk, though there was a safer way that was only a little longer. Lovinguth v. City of Bloomington, 71 Ill. 238; City of Quincy v. Barker, 81 Id. 300, and C., B. & Q. R. R. Co. v. Dougherty, 12 Ill. App. 189, also cited, are all cases of contributory negligence. In none of them do we see any likeness in principle to the case at bar. Here the condition of the street complained of was due to the time and manner of doing the work. For these the city alone was responsible; and whether there was carelessness in choosing them as it did was a question for the jury. The street superintendent says: When it was first shoveled up the stuff was slushy, kind of running, and without having a water-bed you couldn’t haul it.” A jury might think it carelessness to have it shoveled up until he could haul it; certainly it was less dangerous and inconvenient as spread over the street, than as shoveled up in the middle of it. And he ought to have known that slushy stuff like that, exposed to the weather in this climate, is liable to freeze in any night about the first of March, and to remain frozen for days. So, the jury might have found it easily practicable, by a reasonably careful use of the pick, and therefore a reasonable duty of the city, to remove it or a substantial part of it, promptly. They must have found it negligent in some of those particulars, and we are not prepared to say it is clear the evidence did not warrant such finding.

But the street was not closed. The city authorities invited its use, notwithstanding the mudrow. It was the principal business street of the city, and they knew it was and would be used and occupied as before by teams and vehicles hitched and in motion. On the occasion in question there was no apparent danger in appellee’s attempt to drive between the ridge and the hitched team. Any ordinarily competent driver with an ordinarily safe horse might make it without incurring the imputation of rashness or carelessness. She was an experienced driver, with a very safe horse. Her injury was not caused by her own act or neglect, as in cases of contributory negligence. There was room enough for her passage, and her driving was good enough to make it safely. Her injury was attributable in part to accident—the restlessness and backing of the other team—for which nobody was to blame; but in part also to the mudrow, without which it would not have been done; and for this the city alone was responsible. Where an injury is the result of accident, and the fault of the defendant combined, and each is necessary in the combination to produce it, the defendant is liable. City of Joliet v. Verney, 35 Ill. 58; City of Bloomington v. Bay, 42 Ill. 503; City of Lacon v. Pace, 48 Ill. 500; Village of Centerville v. Cook, opinion lately filed at Mt. Vernon, but not yet reported.

Judgment affirmed.


source: Caselaw Access Project

author: Wall, J.

license: Public Domain

text:
    Samuel Ritchie v. Village of Warrensburg.

      Practice—Prosecution under Village Ordinance—Appeal from Justice.

    1. Although a motion appears in the record, yet where it bears no file mark and it does not appear that it was brought to the attention of the court below, no error can be held to have been committed regarding it.
    2. Where on trial in the County Court of an appeal from a justice, papers are missing which the transcript shows to have been issued by the justice, the proper practice is to issue a rule on the justice to send them up, or if they have been lost to require the plaintiffs to supply copies.
    3. An objection to the admission of evidence can not be urged here, the same not having been specifically called to the attention of the trial court.
    [Opinion filed November 23, 1889.]
    Appeal from the County Court of Macon County; the Hon. W. E. Nelson, Judge, presiding.
    Mr. I. D. Walker, for appellant.
    Messrs. Mills Brothers, for appellee.
   Wall, J.

This was a prosecution begun before a justice of the peace for violation of section 17, ordinance No. 3 of the village of Warrensburg. The defendant was fined $3 by the justice and appealed to the County Court, where upon a trial by jury he was again found guilty and the same fine was imposed. By further appeal the case is brought here. It is urged that the court erred in not dismissing the case for the reason there was no complaint or warrant on file. Such a motion appears in the record but it bears no file mark and it does not appear that it was ever brought to the notice of the court. Hence there 'was no error committed by the court in regard to it. ,

The transcript from the justice of the peace shows there was a complaint for violating the section of ordinance above named, and if these papers were missing the correct practice would have been to enter a rule upon the justice to send them up or if there was reason to believe they were lost or destroyed, the plaintiffs might have been required to supply copies.

It is objected the court erred in admitting the ordinance in evidence.

The only reason suggested to the court for not permitting the ordinance to be read, was that the complaint and warrant were not among the files. This, of course, was not a valid objection.

The transcript sufficiently showed what section of the ordinance the suit was based upon and if parties went to trial without the original complaint or a copy of it, there was no occasion to exclude the evidence, because of the absence of such papers, if or is it competent now to urge an objection not then specifically presented to the court. Doyle v. Village of Bradford, 90 Ill. 416; Garrick v. Chamberlain, 97 Ill. 620.

The remaining objection, that the verdict is against the evidence, must also be overruled.

There was sufficient proof to warrant the jury in finding defendant guilty, and though there was conflict in this respect and though the degree of guilt was not extreme, as is attested by the small fine imposed, we are not inclined to interfere.

The judgment is affirmed.

Judgment affirmed.


author: Pleasants, P. J.

text:
    Sarah Fleming v. Samuel G. Weagley et al.

      Practice—Fraudulent Conveyances—Cross-Bill—Attempt to File without Leave of Court—Not Constructive Notice—Laches—Husband and Wife —Husband as Witness.

    1. A paper filed by a third party in an equity case, purporting to be a cross-bill, without leave of court, is not constructive notice to the parties to the action of the claims therein set up.
    2. Whether or not the complaining party in an equity suit has been guilty of such laches as to bar his right to relief depends largely upon the circumstances of the particular case, and the final decision of the question is largely committed to the chancellor.
    3. In an action by creditors of the husband to set aside a conveyance of real property made to the wife by the husband, the latter is a competent witness for the wife.
    4. The husband has the right to prefer the claim of his wife to that of other creditors.

      5. In the case presented, this court holds that there was no sufficient evidence to impeach the conveyance to the wife as fraudulent, the creditor not having any lien at the time the conveyance was made, and there being evidence to show that the property in question was purchased with funds derived from the wife’s estate.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Morgan County; the Hon. C. Epler, Judge, presiding.
    Mr. M. T. Layman, for appellant.
    Messrs. Brown & Kirby, for appellees.
   Pleasants, P. J.

On March 4, 1883, Weagley and Boyce, as creditors of Robert C. Johnson, filed their bill in chancery, to set aside a deed of conveyance by said Johnson and Eliza J., his wife, to Martin H. Cassell, of certain lots in Jacksonville, executed on the 17th of August, 1876, and another of the same date from said Cassell to said Eliza J., of the same lots, and to subject said lots to the payment of their claim. The three parties to these deeds only were made defendants.

On the 13th of June, 1883, Johnson and his wife filed their answer denying the fraud charged in the bill, and setting up several distinct defenses—among others, that before the execution of these deeds the equitable title, to said lots was in Mrs. Johnson, that complainants’ claim arose out of transactions subsequent to the execution of said deeds, of which complainants then had notice, and that the defendant Robert C. Johnson retained an abundance of means to pay all his existing liabilities.

On the 19th of September, 1883, appellant here filed a paper in the case which purported to be a cross-bill, rehearsing the facts alleged in the original bill, and averring that at the time of the execution of said deeds she held a note signed by said Johnson as surety, for $850; that at the May term, 1877, she obtained judgment thereon against him and Peter Tilton (the principal) for $1,038.89 and costs, on which execution was issued July 9, 1877, and returned October 5, 1877, unsatisfied; that this judgment was prior to that of Weagley and Boyce, who, with the defendants in the original bill, are named defendants; and that said conveyances were fraudulent and void as to creditors. It asks that they be set aside and the lots sold to satisfy her judgment, and for general relief.

After several continuances, on motion of the complainants in the original bill, this paper was stricken from the files December 13, 1887, for the reasons that appellant was not a defendant to the original bill and had filed the paper without an answer and without the leave of court. She then obtained leave to interplead as defendant to said bill, and to answer the same and file a cross-bill, and in pursuance thereof, on the 26th of that month filed her answer denying, on information and belief, the allegations of the bill, and averring as in the paper that had been stricken, and also re-filed that paper as a cross-bill.

The defendants Johnson and wife answered this cross-bill, admitting the note, judgment, execution and return as therein alleged, and that said judgment was prior to that of Weagley and Boyce, but denying that she had any lien upon the lots at the time of the conveyances attacked, or that they were made to defraud creditors, and claiming that the lots had been purchased with money of Mrs. Johnson and the equitable title was in her. They also claimed that the statute of limitations had run against her judgment before she filed the cross-bill. Weagley and Boyce also answered, denying all the material allegations in said cross-bill. Appellant afterward obtained leave to amend it, and on the 27th of December, 1888, filed an amendment averring that her judgment was revived by scire facias on May 19, 1888, that execution on the revived judgment was issued September 8, 1888, and returned unsatisfied, and that said judgment is in full force.

The amended cross-bill was dismissed, on motion of defendants for the reason that when the original was filed she had no enforceable judgment; but leave was given her to withdraw and re-file it as an original, which she did. The defendants Johnson answered as to the former cross-bill and amended cross-bill, setting up the same grounds of right to make the conveyances complained of as were stated in their answer to the original bill, denying that the judgment of appellant had been revived and execution thereupon issued and returned as alleged, and claiming that by her own laches she had lost whatever right she might have had to the relief here sought.

The issues having been made up and proofs taken, the court, on final hearing, dismissed both the original-and cross-bills, from which decree, so fa,r as related to the cross-bill, the complainant therein took this appeal.

On what particular ground the court based its action, we are not advised. The premises in question are the homestead of the appellees; the conveyances assailed were recorded on October 9, 1876, and the appellees have been in actual occupation of them continuously from that time. Appellant’s judgment was obtained in May, 1877. If she can be said to have asserted her claim in September, 1883, when she filed tie paper that was stricken, there was a long delay for which no reason has been given. But that paper was not constructive notice to appellees of the claim here made, and whether they had actual notice of it or of that paper before December, 1887, when the motion was made to strike it from the files does not appear. If they had, it was no better than a verbal notice given on the street, which would not be an act of diligence in the sense of the law. The earliest assertion of her present claim that could be considered effective was made December 26, 1887, and that was when her judgment could not have been enforced against any property of Robert C. Johnson. And since what is laches depends so much upon the special circumstances, its determination is so far committed to the chancellor that if he regarded the neglect and delay here appearing as sufficient reason for dismissing the cross-bill we ought not to overrule his judgment. But whether he did so regard it we are not advised; and in another view of the case we deem it unnecessary to express our own opinion upon that question. That view makes it also unnecessary to decide whether the amount and character of the property retained by Johnson would justify the gift of that in question to his wife. We think the decree was fairly supported by the evidence tending to show that these conveyances were not without a valuable and sufficient consideration.

Johnson married his wife in 1856. They both testified that in 1861 her father purchased and caused to be conveyed to her certain lands, which she sold to Charles Pratt for $2,300; that it was then expressly agreed between them that this money should be invested for her benefit, and when, with the profits, it should come to be enough to pay for a home for herself and children, satisfactory to her, it should be so applied and the deed therefor be taken in her name. He states a series of purchases and sales following, in each instance at an advanced price, and that these purchases were made, first, with the money received from Pratt, and thereafter with the proceeds of preceding sales; that with a portion of the money so increased he purchased of E. G. Grierson, on March 20, 1869, for $2,250, the lots in question, then unimproved, and for the house he built thereon and the other improvements paid $6,450, out of the same fund, and other money from her share of the proceeds of Missouri land belonging to the estate of her father; that not a dollar of his own means was put into the property; and that, though he took the deed on the several purchases mentioned in his own name, he believed his wife did not know it. All of the deeds referred to were put in evidence, and so far as they go, confirm his statements and show an increase of the fund to $6,000.

Mrs. Johnson testified to the same express agreement with her husband, to the same understanding as to the investments, and to her ignorance of the fact that the deeds of the lands so purchased were not in her name, until just before the conveyances here in question were executed. Appellant then had no lien on the property.

There was no evidence in contradiction of any of these statements. On behalf of appellant, Mrs. Loar, a near neighbor and intimate friend of the Johnsons, stated that she heard both of them at different times speak of these conveyances about the time they were executed — Mr. Johnson, she thought, before that time—but was uncertain as to dates. The substance of what they said, as she understood it, was that they were made or to be made “ to keep from paying this security debt of Mr. Tilton.” Mr. Johnson stated that he had no recollection of any such remark and was not clear as to any conversation with her on that subject, but might have said to her he owed his wife, or had this arrangement with her, and thought it his duty to make this title in her before he paid any security debt. Mrs. Johnson denied that she so stated, and said she did not then know her husband was security on a note of Tilton, or indebted on any note.

Appellant also took and introduced the deposition of Mrs. Boyce, the widow of Mrs. Johnson’s brother; but as it all related to gifts of money by their father to his children— inferentially of $500 to each—-long before his gift to Mrs. Johnson of the land from which they claim to have derived the means that paid for their homestead, we fail to see its relevancy here. It does not tend to disprove that claim.

And if their testimony is to be believed this homestead property was specifically due from Johnson to his wife. At the time of these conveyances there was no lien upon it. He had a right to put the title in his wife for the purpose of securing it to her against any that were threatened. The statement to Mrs. Loar, as she relates it, is no evidence of an intention to defraud appellant, although the effect of the conveyance was and was intended to be to prevent her from making her debt out of that property. He had the right so to prefer the claim of his wife. Tomlinson v. Mathews, 98 Ill. 178, and cases there cited. He was a competent witness for her. Eads v. Thompson, 109 Ill. 87.

The court properly overruled the offer of appellant to prove that the controversy with Weagley and Boyce had been compromised and settled. It could have no bearing on any issue between her and the Johnsons. Perceiving no error in this record the decree will be affirmed.

Decree affirmed.


author: Conger, J.

text:
    Celia Ann Meyers v. Benjamin Meyers.

      Parent and Child—Adoption—Appeal.

    An appeal to the Circuit Court will not lie from an order entered by the County Court for the adoption of a child under the provisions of Chap. 4, R. S.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Coles County; the Hon. J. F. Hughes, Judge, presiding.
    Mr. F. K. Dunn, for appellant.
    Messrs. Craig & Craig, for appellee.
   Conger, J.

Benjamin Meyers filed a petition in the County Court of Coles County, under the provisions of Chap. 4 of the Revised Statutes, entitled, “ Adoption of Children,” for the adoption of Luella May Meyers; “alleges that she is a female child about seven years old; that her mother, Celia Ann Meyers, is a resident of St. Louis, Missouri, and does not consent to the adoption; that petitioner is the grandfather of said child and its father is unknown to petitioner; that petitioner has had the custody, control and education of the child since her birth; that she was abandoned when two years old by her mother, who has since followed a life of prostitution and not contributed anything to the support of said child; that petitioner’s wife is dead and he is able financially to care for said child, owning eighty acres of land in Humbolt Township, worth §3,200, and personal property worth about §600. Prayer for an order of adoption.”

The County Court made the order of adoption as prayed for, whereupon appellant, the mother of the child, prayed for and obtained an appeal to the Circuit Court, when, upon motion of appellee, her appeal was dismissed, from which order, dismissing the appeal, she brings the record to this court for review. The only question involved is, does an appeal lie to the Circuit Court from an order of the County Court in such cases.

We think the Circuit Court held rightly that no appeal would lie. No provision is made in Chap. 4 for an appeal, and we think the principles announced in the case of The People ex rel. v. Gilbert, 115 Ill. 59, and in the case of Cramer v. Forbis, decided by this court at the last November term, should govern in this case.

The proceeding is to provide homes for children who may be so unfortunate as to have none; it is a summary statutory proceeding; it does not bind the parents, as they are not parties to the proceeding, but they or either of them, if they think their children are unlawfully taken or withheld from their custody, may have an investigation under a writ of habeas corpus to ascertain and assert their rights.

The decree of the Circuit Court dismissing the appeal will be affirmed.

Decree affirmed.


text:
    Martin Leinweber v. The Forest City Insurance Company.

      Fire Insurance—Action on Premium Note—Alleged Fraud of Insurance Agents—Evidence—Rebuttal—Instructions—Error without Prejudice.

    1. In an action on a promissory note given for the premiums on policies of insurance, to which the defense was that the company’s agent fraudulently misrepresented to defendant the contents o£ the application signed by defendant at the time the note was given, the weight of the evidence being strongly against the truth of the allegations of fraud, this court declines to interfere with verdict for plaintiff.
    2. The refusal of the court to admit evidence on a question which, by other evidence in the case, was conclusively settled against the party excepting, does not constitute reversible error.

      3. Although instructions given to a jury might, as abstract propositions of law, require qualification, yet such qualifications may be rendered unnecessary by undisputed evidence in the case.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Mason County; the Hon. George W. Herdman, Judge, presiding.
    Messrs. H. R. Northrup and Josiah Jackson, for appellant.
    Messrs. Wallace & Lacey, for appellee.
   Pleasants, P. J.

This suit was brought on a promissory note of appellant to appellee for $375, dated August 10, 1882, and due September 1, 1883. It was agreed that under the general issue, any good defense might be shown as under an appropriate special plea. There was a trial by jury, verdict for plaintiff, and judgment thereon for $413.

The note was given for the premium on six policies of insurance, numbered respectively, in regular order, from 22,122 to 22,127 inclusive, for $12,000 in all, and running for five years from the date of the applications, which was the same as that of the note. Appellant was a large farmer, owning some twelve hundred acres of land, on which, besides bis own, he pastured a considerable number of cattle belonging to other parties. The first in order of these policies was for $10,200, and covered, among other things, “his horses, mules, colts and cattle on the farm or in the neighborhood,” insuring them for $3,200 against loss by “fire, lightning and tornado.”

In April, 1883, a storm billed twenty-four head of cattle on the place, of which only two belonged to appellant. The loss on these was adjusted at $60, and settled by a credit of that amount indorsed on the note July 26, 1883; but because the company declined to pay him for the others, and for no other reason, according to his own statement, he refused to pay his premium note, or any part of it.

The defense rested on the allegation that the company’s agents who took it, promised him insurance upon ah the stock on the place, to whomsoever belonging, and fraudulently represented that his application, prepared by them, was so made; that he signed those papers in consideration of and reliance upon that promise and representation; that he is a German, unable to read or write English, and did not know, until the company refused to pay for the agisted cattle killed, that the application and policy did not cover them; and that within a reasonable time thereafter he rescinded the contract and returned all the policies.

It appears that the arrangement for insurance was made with Hr. Sherratt, then the general agent, and since January 1887, assistant secretary of the company. Hr. John O’Dowd was with him, but what particular relation he sustained to it was not stated. He was not a witness on the trial, and Hr. Sherratt did not know where he was, but testified that though he might have said something during the preliminary conversations, the whole of the negotiation and transaction was between appellant and himself. After they had gone over the place together and looked at the buildings and other property, of which he made memoranda, they returned to appellant’s dwelling house, and there the papers were made out by Sherratt and signed by appellant. Several others were there, who heard different portions of the- conversation at different places, and testified to their recollection of its substance.

It would certainly appear from their statements that appellant in the course of it did inform these agents that his own stock was mortgaged and that he was pasturing some belonging to other parties. As one puts it, he “objected” to insuring, for those reasons, and they told him they could insure it all for him notwithstanding, and that they wanted to do so. But there is less evidence to show that such was the understanding finally arrived at before the papers were signed, and still less that either of said agents represented, alter the application was made out, that it contemplated the insurance of stock on the place belonging to other parties.

It is clear that no such insurance is contemplated by the application, or by the policy, which strictly corresponds with it. Sherratt testified that appellant did not say he wanted to insure any such stock, and with special emphasis that “no representations were made by him that this insurance would cover any property except his own;” and further, that he read to him each of the six applications in full, together with the note, before they were signed. Appellant himself, on his first cross-examination, was asked this question: “At the time they took the applications for this insurance didn’t the agent read the applications over to you?” and his answer was “Yes, sir.” Mr. Hiliken. his hired man, testified that he read over one of them to him before it was filled out, and remarked to him at the time that he “ thought it pretty good insurance,” a thought and remark that were not sensible nor probable if the paper was only a blank form. At a later stage appellant, being recalled, stated that “ they read only a part of them and before they were filled out”—a useless and senseless proceeding. He admitted that his hired man and members of his family could have read them to him, but he did not ask them to do so. Ho witness mentioned an act or word of these agents which, upon a review of the transaction, appears to have been intended or of itself calculated to prevent his having them read to him, un^ss it be their statement that it was all right. He received this policy, with the others, about the 21st of August, 1882, kept it in his possession at his home until the adjustment, eleven months afterward, was then informed by the adjuster that it did not cover stock belonging to others, and that for the loss of his own the company would pay by crediting the amount on this note—all of which was testified to by himself—and thereupon, on the 26th of July, 1883, with all this information and knowledge, he voluntarily signed and delivered the following receipt: “ Received of the Forest City Insurance Company, of Rockford, Illinois, sixty dollars, in full of all demands for loss or damage by fire, lightning or tornado, to property insured under policy Ho. 22,122, and destroyed by either lightning or tornado on the 22d of April, 1883.”

If there was any fact or circumstance tending to explain, qualify or impair the effect of this receipt as a ratification of the contract of insurance and an admission of his obligation upon the note according to its tenor, and therefore also as evidence that there had been no fraudulent misrepresentation made or deceit used to obtain it, we do not find it in this record.

These were questions for the jury, and an error that would justify the disturbance of a verdict for the plaintiff upon this evidence, must be gross indeed. We discover none that appears to be material.

It is said the court erred in refusing, upon the plaintiff’s objection, to admit parol evidence that Sberratt himself gave the description, in the application, of the barn therein mentioned to be insured for $500; that lie saw it and knew its proper description, but so misdescribed it as a “ frame barn,” when, in fact, it was made of poles set in the ground and thatched over with prairie grass,” that defendant could not have recovered for it, in case of loss, under the policy. This alleged misdescription is said to show a fraudulent intention not to pay.

The description or misdescription was given in an answer among others, in writing, and signed by the defendant. There was no claim of misrepresentation by the agents in respect to it, and therefore the writing was conclusive upon the question, who gave it. Defendant had already testified that his reason for refusing to pay his note was that the company had refused to pay him for the loss of cattle of Harry Hughes. If the testimony excluded was proper at all, it was as part'of his defense in chief; but it was not offered until after the plaintiff’s evidence in rebuttal had been closed. The barn intended having been seen by the company’s agents at the time of taking the application, could have been sufficiently identified in case of its loss, though it was not properly described as a frame barn ; and therefore such a misdescription was no evidence of a fraudulent intent. We think there was no serious error in its rejection.

Defendant was asked, “What was said about insuring the cattle against death from any cause?” which was objected to and excluded. It is said that was the kind of insurance promised, and that there was a failure of consideration to the extent of the difference in value between such, and the limited kind he got. If this was error it certainly did no harm; for notwithstanding the exclusion of that particular question at that time, the record shows evidence enough on the point in view, to settle it against him. Thus Matthews says, “ The agent stated they wanted to insure it against fire or anything else;” but the defendant said, some time after the question above was excluded, “I understood that the stock was insured against fire, lightning and storms. I wanted the stock insured against storms. The other property was not.” Hiliken, his hired man, says: “The agents said it was insurance against loss by fire, lightning and storms.” It has been already observed that defendant made no complaint except that he was not insured against loss of cattle other than his own.'

The court sustained objections to other questions calling for what was said in the preliminary talk, to show the actual agreement, holding it to have been merged in the writing. We think on that point the court was right. Mercantile Ins. Co. v. Jaynes, 87 Ill. 199. But the matter was received upon the question of fraud in reducing it to writing and obtaining defendant’s signature thereto, and the jury were instructed with sufficient liberality to him, as to its bearing in that direction. Among others, the following was given:

“In this case if you should believe from the evidence that the plaintiff, by it agents, made false and fraudulent statements in regard to the insurance of the defendant’s property, knowing them to be false, for the purpose of getting the note offered in evidence, and that the defendant believed them to be true and relied upon them and was thereby induced to execute said note, then he would have the right, when he received such policies, to repudiate such contract, and would not be bound thereby, provided he rescinded the contract as soon as he received the policies or within a reasonable time thereafter.”

Another included the proposition that “if the plaintiff had failed to execute a part of its promises given to the defendant which induced him to execute the note,” the jury should allow to the defendant a deduction to the extent of such failure of consideration.

Those for the plaintiff relating to the legal effect of the receipt, and of a failure of defendant to ascertain the contents .of the policies when he received them, or within a reasonable time thereafter, as abstract propositions might need to be qualified, but the evidence in this case, which is undisputed, made such qualification unnecessary.

We think no injury was done to defendant by any error of the court, and that the verdict was right.

Judgment affirmed.


text:
    The Illinois Central Railroad Company v. Alexander Burns.

      Railroads—Injury to Stock—Evidence as to Experiments—Rebuttal— Discretion of Court—Instructions. „
    1. In an action against a railroad company for injury to stock on its track, where the main question was whether or not the engineer could, by the exercise of reasonable care, have seen the animals in time to avoid the accident, evidence of experiments made to determine the distance from the point of the accident at which the stock could have been seen by the engineer was admissible, although the conditions of the experiments were not precisely those existing at the time of the accident.
    2. The admission of such testimony in rebuttal was discretionary with the court below.
    3. In an instruction on the subject of the engineer’s duty to keep a lookout for obstructions upon the track, the phrase “ordinary care ” would be presumed to mean such care as the engineer could reasonably exercise in keeping a lookout, taking into consideration his other duties.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.

      Messrs. Palmers & Shutt, for appellant.
    Messrs. Patton & Hamilton, for appellee.
   Conger, J.

This was an action brought by appellee against appellant to recover damages for the killing of appellee’s horses, by the train of appellant upon its railroad between Springfield and Clinton. The verdict and judgment were for $550.

The principal question was, as to whether the engineer by the exercise of reasonable care could have seen the animals in time to have avoided the injury. The objections urged upon the part of appellant are principally two, the admission of improper testimony and giving an improper instruction.

As a part of the evidence for the defense, appellant had given the result of certain experiments, made by placing a train in the position, as nearly as possible, of the one causing the injury, and detailing to the jury the opinion of those taking part therein, of how far away at certain points upon the track the horses could probably have been seen from the engine.

In rebuttal appellee was permitted by the court to give the result of an experiment made by himself and witnesses, made after appellant’s evidence upon the subject had been given, in which they had placed a man on a ladder in the track, intending thereby to raise his head to the same height as though he were standing in the cab of a locomotive, and then placing others in the ditch at the point where it was claimed the horses were, and giving to the jury the result of such observations.

Counsel for appellant, in their brief, make their objection to this testimony in the following language, which we quote, “ It is difficult to classify testimony of the character of this under consideration. The defendant offered proof of experiments carefully conducted by the engineer in charge of the same train under the identical conditions, in order to determine the distance necessary to stop the train at that point, when it was moving at the same rate of speed. In addition, the persons who conducted these experiments were experts, whose opinions would have been admissible upon the points involved upon general, well understood principles.

In the experiments made by the witnesses, Fagan and Guyant, there is no pretense that the conditions of the experiments were identical with those of the actual transaction.

The primary question before the jury was as to the actual distance as well as the position of the engineer at the time, when he could have seen the horses on the track. These points of inquiry were supposed to involve the question of reasonable care on the part of the engineer to observe the animals on the track and control the engine to avoid injury to them. The hypothetical experiments of the witnesses lack all the elements which are necessary to render such testimony admissible. The experiment did not include all the facts necessary for a comparison between the results obtained and the actual facts of the transaction, but the facts assumed are confessedly unlike the actual facts. The witnesses were confessedly without experience in the operation of trains upon railroads. The actual facts of the transaction were fully detailed to the jury by witnesses who knew them, and were unimpeached. The mischief which would result from the admission of testimony of this class is too obvious to need discussion.”

There is no good reason for rejecting appellee’s evidence of experiments, because not made by appliances as perfect, or by witnesses with as much experience and knowledge as those of appellee.

In so far as the experiments made failed to comply with the true condition of things at the time of the accident, the results obtained would not be as satisfactory and convincing to the jury as when all the conditions of the experiment were precisely like those existing at the time of the accident, and the jury should and doubtless did make allowance for these imperfect conditions.

But to say that appellant may place an engine at a given point, and permit an engineer standing thereon to state to the jury at what distance horses at the side of the track could be observed, and deny to appellee the right to show the result of experiments made by himself or his witnesses, because he can not place an engine at the point of observation, but is compelled to use something else to bring his line of vision as nearly as may be to the place the engineer would occupy, would not be in accordance with reason or justice.

As to this evidence having been admitted upon rebuttal, it was entirely within the discretion of the trial court, and we see no such abuse of discretion as would call for interference.

There was but one instruction given for appellee, which was as follows:

“ The court instructs the jury, that if they believe from the evidence that the engineer, by the exercise of ordinary care, could have seen the plaintiff’s horses in time to have avoided striking them, and that by the reason of the failure of said engineer to exercise such ordinary care, said horses were injured, then the jury should find for the plaintiff.”

It is urged that this instruction “ assumes that it was the duty of the engineer in charge of the train to look out for animals upon the track, and then, alike regardless of all other considerations of duty, avoid striking them.”

We do not think this instruction subject to the objection made. Ordinary care would be such care as the engineer could reasonably exercise in keeping a lookout, taking into consideration his other duties, and we do not think a jury would understand the language of this instruction in any other light.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    George I. Brown v. Joseph Walker.

      Replevin—Identity of Rigs—Alleged Improper Remark of Trial Judge —Instructions.

    1. In an action of replevin, brought to recover possession of some pigs, where the question was one of identity, which was in some respects a matter of opinion, the verdict of the jury is entitled to the same weight as upon a pure question of fact.
    2. A ruling of the trial court on a question of admitting certain testimony, can not be complained of where the complaining party received the benefit of all (he evidence of the witness to which he was entitled.
    3. An instruction setting forth that the jury in determining the credibility of witnesses should take into consideration their interest in the result of the suit, and the relationship of any of them to either party to the suit, or any other feeling or interest they may appear to have in the case, is proper.
    4. In the case presented, this court holds that certain remarks of the trial judge made in the course of the trial can not be complained of.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Clark County; the Hon. J. F. Hughes, Judge, presiding.
    Messrs. S. S. Whitehead and J. W. Graham, for appellant.
    Messrs. Golden & Hamill, for appellee.
   Per Curiam.

This was an action of replevin for six pigs, begun before a justice and appealed to the Circuit Court. Verdict and judgment for plaintiff. The question involved was one of identity, and more than twenty witnesses were examined upon it. Many on each side were confident, for reasons stated. A more appropriate case for final decision by a jury could hardly be imagined. A verdict .either way, in such a case, should stand undisturbed, unless material error in law had intervened.

It is suggested the same defense is not due to the finding here as where there is a conflict of evidence as to facts and the credibility of witnesses is to be determined; that here there was no such conflict; that the facts were uncontroverted and the testimony could have been reconciled; and that thereupon the verdict should, indeed must, have been for the defendant.

Plaintiff’s witnesses testified to facts respecting plaintiff’s pigs, which were uncontroverted as to them, but these may all have been untrue as to the pigs he replevied. Defendant’s witnesses testified to many facts concerning defendant’s pigs, which were also uncontroverted, but these may all have been untrue as to the pigs in controversy. Each side so claimed. The facts stated on both could not have been true as to those in controversy, but only those stated on one. Who but the jury was to determine which? They are to determine what witnesses are mistaken as to opinions founded on facts undisputed, where such opinions are admissible, and the application of such facts to the subject in controversy, as upon a question of identity no less conclusively than where facts only are involved, which depend on the memory, intelligence, attention or veracity of the witnesses.

The action of the court in several particulars is complained of. While the constable, with the plaintiff and others, was driving the pigs from defendant’s premises under the writ of replevin, defendant’s father appeared on the scene, and had some conversation with Mr. Evinger, of plaintiff’s party, about the ownership of the property. He did not state that plaintiff heard or could have heard it. On the contrary he said he could not so state; and all he said on that point, further, was: “ I guess he has ears; he was not very far off.” The court might, therefore, have properly excluded the whole conversation. But the witness went on, without objection, stating what he claimed as to the ownership, and what Evinger said, until he said, “ I told him if he was as anxious to pay his honest debts— ’’when counsel for plaintiff interposed an objection “ to the conversation” which the court sustained, with the remark, I don’t think anything said there will settle this question,” in relation to which the record states that counsel for defendant excepts,” but whether to the language of the judge or to the exclusion of the testimony does not appear therefrom. The complaint here made is of the language, and several cases are cited to show its impropriety. We have examined these authorities and think them inapplicable. The judge expressed no opinion as to the weight of any evidence admitted, but simply a legal opinion as to evidence offered, or bein^- given—• excluding it. If counsel knew of anything the witness could have stated that bound the plaintiff by reason of his presence, hearing and silence, and which was pertinent, he should have called the court’s attention to it, and offered to prove it. So far as then appeared the conversation was immaterial and improper, and the witness was apparently beginning an impertinent and offehsive remark. It was high time then, for the judge, of his own motion, to arrest it and exclude the whole matter. He did it upon objection made, and, as we think, in a manner that was sufficiently mild. His language simply expressed his legal opinion that “ the conversation” was immaterial, and had no relation to anything else that might have been said by or to or in the hearing of plaintiff on that occasion.

Plaintiff claimed and introduced evidence tending to prove that his pigs were marked with a swallow fork in their ears, and that the ears of those in controversy had been recently cut off, but that in some of them the mark was still visible. Defendant claimed they had been frozen off and not cut, and introduced evidence tending to prove that the ears of these and also of other pigs on his place had been frozen. He called Dr. Tobey, as an expert, to testify to his observation of the ears of other hogs on defendant’s place, “ said to have been frozen off during the same winter,” and to give the conditions as to the effect of freezing.” The court said “ he can do that without the interview about the hogs on Brown’s place, if he is an expert,” and excluded the proposed evidence as to them. This is claimed to have been error. It appears that the witness then went on and gave his opinion about the ears of the pigs in controversy, from personal examination of them, and also from comparison of them with-those of other hogs he observed, and with the ears of some he knew to have been cut. We think the defendant got the full benefit of all the evidence he was entitled to, notwithstanding the ruling in question. The witness stated that on the Monday preceding his examination as a witness he “ examined Mr. Walker’s hogs on his place and those in controversy, Mr. Simmon’s hogs and the hogs of defendant, Brown,” and gave his opinion, on the subjects of inquiry, fully, with his reasons therefor. If anything sought to be put in the case was shut out by this ruling, counsel has not indicated it and we do not discover it from the record, unless it was an “ interview ” with the defendant. We therefore deem it unnecessary to pass upon the propriety of the ruling.

By agreement the court instructed the jury orally, and, among other things, in so doing, said: “ In determining the credibility of witnesses you will take into consideration their interest in the result of the suit, and the relationship of any of the witnesses to either party to the suit, or any other feeling or interest they may appear to have in the case.” It is said this tells the jury that relatives have interest and feeling because they are relatives, and discredits them.

We do not so understand it, nor do we perceive any valid objection to it. The court assumed nothing as to any matter of fact, nor expressed any opinion as to the credibility of any witness, but left it exclusively to the jury, to be determined, on grounds alike and equally applicable to the witnesses on each side—grounds clearly recognized by law and sound reason, and always urged in argument to the jury, where they apply.

It is also objected that in the course of his instruction the judge said that the controversy ought to end with that trial. This was said as a reason why the jury should make an earnest effort to. agree.” In this class of cases there is apt to be unusual difficulty in reaching an agreement, and the costs of a single trial is usually out of all proportion to the value of the property in controversy. The remark was natural and not inappropriate. It certainly was impartial in all its bearing. The entire charge as it appears in the record seems to us eminently simple, clear, brief and fair.

Perceiving no material error in the case the judgment will be affirmed.

Judgment affirmed.


text:
    Job Coates v. John Harmon.

      Negotiable Instruments—Note—Signature on Face by Payee—Understanding of Parties—Instructions.

    1. Where a payee places his name with the maker on the face of a note for the purpose of constituting himself a joint maker, such signature can not be treated by a third party as a blank indorsement.
    2. If a payee signs a note at the time it is executed by the maker, and upon an understanding that it shall only serve as a memorandum between them, no subsequent statement by the payee, in the absence of the maker, will render the latter liable to a third person.
    3. In the case presented, this court holds that certain instructions given in behalf of plaintiff, touching indorsements-in blank, should have been so qualified as to show that the position of the signature of the payee raised no presumption that it was intended as an indorsement, and that one refused on behalf of defendant, touching, among other things, the alleged understanding upon which the payee’s signature was written, should have been given.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Morgan County; the Hon. George W. Herdman, Judge, presiding.
    This was an action brought by appellee, claiming as an indorsee upon a promissory note. The case was originally brought in a justice court, whence it was removed by appeal to the court below. Three trials were had before juries, each resulting in a verdict for the plaintiff. The two former verdicts were set aside by the court. On the last judgment was entered and this appeal taken by the defendant.
    In February, 1882, John Meredith held an auction sale of cattle and other property in Franklin, Morgan county. The appellant purchased at such sale two steers for $126. According to the testimony of appellant and Meredith, at this time Meredith owed Coates on a note, $200. This note had been left by appellant at home. According to the testimony of Meredith and Coates it was then agreed that Meredith should sign a note from Coates to himself, and that it should stand as a memorandum of the amount with which Meredith should be credited, when he should settle his note for $200 held by Coates. The truth of this testimony of Coates and Meredith is disputed by appellee.
    This note, with others, was placed by Meredith in the Jacksonville National Bank without indorsement or assignment. During this time Meredith was buying and shipping cattle and appellee had guaranteed to the bank payment of any overdrafts he might make in this business.
    The note in controversy was not paid by Coates and remained at the bank until 1886. It was then given to appellee, who wrote over the signature of John Meredith, “ pay to the order of John Harmon,” and brought suit thereon in his own name.
    A copy of the note is as follows:
    “$126. Franklin, Feb. 3, 1882.
    Six months after date we promise to pay to the order of John Meredith, one hundred and twenty-six dollars, at 8 per cent, from date, if not paid at maturity. Value received.
    (Signed) Job Coates,
    John Meredith.”
    Messrs. Brown & Kirby, for appellant.
    Messrs. Owen P. Thompson and W. P. Callon, for appellee.
   Conger, J.

Without determining the disputed questions of fact in this case, the judgment of the Circuit Court will have to be reversed for errors which we deem material in the instructions, especially the fifth and seventh, of appellee, and in refusing to give appellant’s eighth instruction. The testimony of the parties was direct and explicit that the note was only intended as a memorandum of the amount of the purchase by Coates, to be afterward placed as a credit upon the note which Coates claimed to hold upon Meredith, and equally explicit that Meredith’s name was placed upon the face of the note below Coates’ at the time of its execution, and with the intention and purpose, on the part of Meredith, of making himself a joint maker with Coates of the note. Mow, if such was his purpose in signing the note, it could not be treated by a third person as a blank indorsement of the note.

The fifth instruction of appellee in substance tells the jury that if Meredith indorsed the note in blank, that is, by signing his name thereon without date, then appellee might treat such signature as an indorsement in blank, and that appellee would, if the note had been properly delivered to him by the bank, be presumed to be the bona fide owner of such note; and by the seventh they are told that an indorsement in blank is the signing his name by the payee upon the note without mentioning the assignee.

While these propositions of law are correct in general, we think as used in this case they tended to mislead the jury. They might have understood that, finding Meredith’s name written below Coates’, apparently as a joint maker, would give rise to the same presumption as if they had found it upon the back of the note. It is true in appellant’s instructions, as given by the court, the jury are told that the note upon its face appears to be the joint note of Coates and Meredith, but we are of opinion that under the peculiar facts in reference to this note the instructions alluded to should not have been given without some qualification showing the jury clearly that the manner of Meredith’s signature would raise no presumption that it was intended as an indorsement of the note. The following instruction presented by appellant was refused:

“8th. The court instructs the jury, for the defendant, that if they believe from the evidence that John Meredith signed the note sued on at the same time that it was signed by the defendant, Coates, and upon an understanding between him and Coates that the same should serve only as evidence of the amount which Meredith should be credited upon a settlement between them, then no subsequent statement made by Meredith, in the absence of Coates, would make Coates liable to any other person upon said note.”

We think this should have been given, as it clearly stated the law, and we find nothing in the instructions given which supplies its place.

For the errors indicated the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed wad remanded.


text:
    James Dowdall v. Alsie A. Cannedy.

      Administration—Transfer of Interest—Subsequent Sale—Fraudulent Misrepresentations—Cancellation of Deeds—Interest.

    1. The denial of the petition of a legatee for an order on the administrator to pay a balance claimed to be due over and above the sum paid for the legatee’s interest by said administrator, who, subsequent to the purchase, sold the property in question by order of court, can not operate as a bar to a bill in behalf of the legatee to set aside the conveyances made, upon the ground of fraudulent procurement.
    2. Honest misstatements by an administrator as to the legal effect of the provisions of a will do not constitute fraud.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Greene County; the Hon. G. W. Herdman, Judge, presiding.
    Mr. Mark Meyerstein, for appellant.
    Mr. John G. Henderson and Rinaker & Rinaker, for appellee.
   Pleasants, P. J.

The parties to this suit are brother and sister residing in the county of Greene. George L. Dowdall, another brother, who resides in Macoupin, died there on the 6th of June, 1879, leaving a will by which he devised all his real estate to his wife for her life, and in case she should have issue by a future marriage, to her and such issue in fee, but if she should die without issue, then that at her death it should be sold and the proceeds equally divided between his father, brothers, sister, sister-in-law, and two half sisters jointly, making eight equal parts. The same disposition was made of his personal property. His wife was named to be his executrix, but she did not survive him, and he left no descendant. On the 1st day of July, appellant was duly appointed administrator with the will annexed. As such, in the fall of that year he made sale of the personal effects, which realized about enough to pay the debts. In November, 1880, he purchased of appellee her interest in the real estate for $1,200 cash, and took a conveyance thereof in the form of two quit-claim deeds, the land lying in two counties. In August, 1881, he sold all the real estate, under an order of the County Court, to Don A. Burke for $11,750, one-half cash, and the balance in a note, at one year, with interest at eight per cent. In November following appellee tiled her petition to that court for an order on appellant as such administrator to pay over to her the balance of the share of the proceeds of said estate to which she was entitled under the will, after deducting the $1,200 paid to her as above stated, which petition he successfully resisted, the court holding that by virtue of the quit-claim deeds mentioned she had ceased to have any interest in said estate. On her appeal from that order denying her petition the Circuit Court held the same way and affirmed it. Thereupon on the 12th day of January, 1885, she filed the bill herein, praying to have said deeds canceled, and for the relief sought by said petition.

It sets forth the facts above stated, excepting the filing of said petition and the proceedings therein, and avers that before she was informed of the provisions of the will or oilier rights thereunder, and before defendant, as administrator, had made any report of the condition of said estate, he came to her and solicited the purchase of her interest in it; that she then told him she did not know what it amouted to, nor what right or power she had to sell or convey it, nor when she would be entitled to it ór any part of it; that he told her he didn’t know just what it would amount to; that there were debts coming against the estate of which he had not heard until recently; that the land would have to be divided by a partition suit, which would involve cost and expense and delay; that there now was a minor heir less than a year old, which she knew was a fact; that he then further stated that the land could not be divided, nor the proceeds thereof, until said minor was of age; that complainant therefore might not receive anything from them in her lifetime; and that he would then, November 6, 1880, give her in ready money the sum of $1,200, for all her interest in said estate; that knowing he was a man of business experience, and well acquainted with the condition of the estate and the provisions of the will, and haxdng confidence in him and in his disposition toward her “as her brother and as the trustee, as it were, of her interests,” she accepted all his statements as true, and sold and conveyed all her interest in the real and personal estate of the testator on the terms proposed. It then avers that she afterward discovered he had “grossly deceived” her in respect to the condition of the estate and the terms and effect of the will, and as to when the land could be dixnded and when she could obtain her share of the proceeds of the sale of the same; that from his reports thereafter made by him as administrator it appeared that of the proceeds of real and personal property of the estate she was entitled, for her share as heir and under the will, to $1,939.92.

Besides the averment that he had “ grossly deceived ” her, as above set forth, all that the bill contains as a charge of fraud is the following: “ That by the abuse of her confidence in his fairness and good faith, and by the disregard of his duty in the premises, and the abuse and betrayal of his trust, seeking to speculate upon the trust funds so being in his hands to administer and to wrongfully deprive your oratrix of her fair share of said estate, he has wronged and cheated her out of more than one entire third of her just net share of said estate.” A demurrer to this bill was overruled and the defendant answered, denying the gravamen thereof, and setting up as a further bar the order and judgment of the Circuit and County Court above referred to, as having been made upon a-hearing on the same grounds of claim here relied on. To these special matters in the answer exceptions were filed, the consideration of which was reserved to the final hearing.

Upon the pleadings and the proofs taken and reported by the master, the court found that said sale and conveyance was procured to be made by the fraudulent representations and deceptions practiced by defendant, and abuse of confidence reposed in him by his sister, the complainant, because of his relationship to her and of his being administrator with the will annexed of said estate, and thereupon decreed the sale and deeds void and canceled, and that defendant account for and pay over to her so much of the proceeds of his sale of said lands and of the personal estate as she was entitled to, to-wit, thirty-five two hundred twenty-fourths of the same, with interest from the date of the filing of the bill, which on further reference to the master to ascertain and compute, was found and decreed to be (including interest to November 24, 1888, the date of the decree, amounting to $131.83) the sum of $895.23. Exceptions were duly taken to the master’s reports and to the several orders and decrees of the court.

Upon the assumption that this sale by appellant was obtained by fraud, we do not think she had a remedy at law, either in the Probate or Circuit Court, nor that the judgments of those courts upon her petition referred to were such adjudications as would bar the relief sought by this bill. The deeds of conveyance stood in the way, an insurmountable obstacle. The direct object of the bill was to remove it by their cancellation, and the power to cancel them was in the chancellor alone. Obtaining jurisdiction for that purpose he would retain it to do complete justice in the premises between the parties. Bnt we are clearly of opinion that no proper case was here made for the rightful exercise of that power.

Besides the documents introduced, the only evidence in the record is the testimony of complainant and her husband, in her behalf, and of the defendant in his own. At the time of the sale in question she was about fifty years of age, for many of which she had been, as she then was, living with her husband, who was something over sixty, on their farm in Greene county. Habitual or frequent personal association with the defendant had thus been long broken up and her life identified with that of a nearer and dearer one. She consulted her husband most fully throughout this whole transaction. The purchase of her interest was not proposed until June, 1880, nearly or quite a year after the death of the testator and probate of the will. Within two weeks after his death she was correctly informed of the provisions of the will and of her interest in the estate. With her husband she had attended the sale of the personal property, which took place on the farm, the fall before; and according to her own statement, she found out that night or the next morning what it amounted to. She also says she knew there was a considerable indebtedness against the estate. She did not know the amount of that. But the defendant was .then also ignorant of it, as debts were coming in and the estate was not settled until April, 1885 ; and yet he told her he thought the personal property would pay all the debts. She had often before been on the land, and was qualified by experience, as .was her husband, to form an opinion of its character, condition and value. She distinctly admitted that she knew as fully and well as did the defendant, the will, the devisees, the estate and her interest therein. He offered her for it the sum of $1,000, in cash. She conferred with her husband and made inquiry about it of others—among whom she named Ike Powell, a relative—and having so satisfied herself that it was not enough, she so informed him, saying she was going to try to sell to somebody and that if he, the defendant, didn’t buy it, some one else would. She also stated what was not true—that Powell had offered $1,200; to which he replied that if anybody would give that amount he would, as he did not want a stranger to have it. Again she consulted and inquired. Powell hadn’t the money. Her husband was in debt and paying interest. They wanted cash. They didn’t get another offer of $1,200, cash. After talking over the matter between themselves, according to his stf tement, they “ came to the conclusion that if what he said in regard to the situation of the real estate—that we could not have it sold under the will without a decree—we expected it was as good as we could do to take $1,200.” And so they said to him, “How if this is the situation of things, as you have stated, and if you are willing for us to go up there and ask Mat’s and Ike’s advice about the matter, and if they advise us not to sell it we will not do it, but if they don’t advise us that way we will sell it for $1,200.” He assented. She advised him of her acceptance, and she procured Powell to prepare the deeds. She signed them before her husband did, and upon his objecting to sign, defendant told them to “ drop it all and burn the deeds;” but, as she says, “he studied it over, I guess, and signed.”

All of the foregoing is taken from her testimony, excepting the single statement quoted as .from his, from which it would seem she was quite as active in working up the sale as the defendant. There was no appearance of pressure or urgency or even persuasion on his part, nor of any special confidence in him on hers. She acted on her own judgment and that of her husband and other friends, as if he ha.d been a stranger. So far as relates to his knowledge and influence and her ignorance and confidence, her testimony is in direct contradiction of the averments in the bill; and her husband’s, relating to the same fact, accords with it.

But whatever may have been the truth in that respect we have looked in vain through the bill, proofs, decrees and argument for the specification of a word, an act or an omission on the part of appellant that is charged, proved, found or asserted to have been fraudulent. The same witnesses positively and completely exonerate him. Complainant testified, “ I don’t pretend to say that my brother here deceived me wilfully, but he did buy that land of me when it was worth more than he said it was. I know this' because he sold it for more.” That is her case in a nutshell, as she understood it. It amounts to this: that she thought now, it was worth more when she sold than she thought then. And her thought was but an inference from a single fact which did not warrant it. When she sold, there was no railroad near the land, nor any in contemplation, so far as the parties were informed. Soon afterward it began to be talked of, and when he sold—more than nine months later—it had been surveyed and located and a station near the land determined on. The worth of the land was what it would bring. She sold for $1,200, cash, and he, nearly a year after, for $1,468.75, one-half cash and the other on a year’s time. Such an enhancement in that time is no uncommon effect of the location of a railroad in the vicinity.

Again, she testified, “ I would not say my brother told me a falsehood * * * but he did misrepresent things to me.” Being asked in what respect, or how, she said he told her it couldn’t be sold under the law without a decree of court, which would involve a considerable cost, and that the land was not in as good condition as when the testater died, because the fences had gone down and the crops were poor, and he didn’t consider it worth near as much as before that time. She was then requested, “ If he ever made any other misrepresentation, please state it. And her answer was: “I don’t know as I can think of it. I wouldn’t say that he did.” And she added, “I don’t pretend to say that these statements were false, but I do pretend to say that it was worth more, because it brought more.” The bill contained not a word about any representation as to fences or crops, nor is there in the record a word of proof that the fences had not gone down or that the crops were not poor. Neither the complainant nor her husband denied the truth of anything they say he stated as matter of fact. He charges no misrepresentation except as to the necessity of a decree of court in order to have the land sold, which was, that it could not be lawfully sold, while there was a minor heir, without such a decree. They knew that was mafter of opinion, and that appellant did not profess any special knowledge of the law, nor represent that he had taken any legal advice on the subject. If he expressed only his real opinion, then, however mistaken, it could not have been fraudulent.

That it was his honest opinion and belief is put beyond doubt by his oaths and his acts. If he had supposed he had power to sell, there was no reason for refusing or delaying to exercise it. It was desirable that the parties interested, including himself, should realize and control their respective interests as soon as might be. But it is evident that they understood they had an interest in the land itself, as tenants in common; for they talked of dividing as well as of selling it. What appellant proposed to buy and appellee to sell was her interest in the land. Their contract was executed by a .deed of quit-claim of her interest in the land specifically described. He understood that his office and function were those of an administrator, notwithstanding the annex, and that as such, having no need to sell in order to pay debts of the estate, he ha'd nothing to do with the land, but its disposition rested with the heirs or devisees. They all knew that one of them, Hayden Dowdall, had died very soon after the death of the testator, leaving an infant child, and it was plain to him that this little child could not take a binding part in a partition or sale. Hence the supposed necessity for a decree of court. Appellant swears that he fully so believed, until advised to the contrary by the county judge long after he had made the purchase from appellee. By direction of that officer he filed his petition for leave to sell, and made the sale in conformity with the order so obtained.

We think it was quite easy and natural for a man who was not a lawyer, and especially for one of large business experience,” to make all the mistakes appellant did, and to be so confident in his opinion as to want no lawyer’s advice about it. To entertain such an opinion and to express it and to act upon it without such advice, may not be very wise or prudent, but certainly it is not fraudulent.

In our opinion, then, if the bill states a case of fraud by wilful misrepresentation of facts and abuse of confidence— which is by no means clear—it finds no substantial support in ' the proof. The decree, annulling the contract of sale and canceling the deeds, was therefore erroneous. And if the court below was not justified as to the relief by the case made it could grant none further, for want of jurisdiction. Hence it is unnecessary to inquire into the particulars of the decree, although we do not see from the record on what ground the master and court found the share of complainant, which the hill and the will stated as exactly one-eighth of the proceeds of the personal as well as of the real estate, to be so much more nearly one-sev'enth. They also charged appellant with the rent of the land accrued after the death of the testator, and also with the interest on the note given by Burke for half of the price on its sale to him. While he might be properly so charged in favor of the other parties, who retained their interests in the land or its proceeds, he should not be in favor of appellee if he had lawfully bought hers. Appellant testified that the personal estate proper, all went to the payment of debts of the estate.

But for the reasons above given the decree will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.


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    Sampson B. Rawlings v. The Village of Cerro Gordo.

      Municipal Corporations—Hawkers and Peddlers—Agents and Canvassers—Licenses—Sec. 63, Chap. 24, R. S.—Practice—Finding by this Court.

    1. Canvassing or taking orders for books, pictures, etc., is not peddling or hawking within the meaning of the statute authorizing municipal corporations to license or prohibit the same.
    2. An ordinance providing that a person engaged in canvassing or taking orders shall be required to take out a peddler’s license, is void.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Piatt County; the Hon. E. P. Vail, Judge, presiding.

      Messrs. S. R. Reed and H. H. Crea, for appellant.
    Mr. W. C. Johns, for appellee.
   Wall, J.

The village of Cerro Gordo ordained:

“ Section 1. No person shall attempt to sell, or sell any goods, articles or things (except farm products offered for sale by the producer thereof) by peddling, hawking or public outcry, or at any temporary or uninclosed stand or place of business, without obtaining a peddler’s license there for, under a penalty of five dollars for each offense; provided, that the village trustees may in their discretion, by vote or resolution, exempt any person, having been a bona fide resident of the village for six months, from the provisions hereof, or may order license to be granted to such person at a lower rate than is hereinafter specified.
“ Section 2. Every person canvassing or taking orders for books, pictures, publications or other articles, shall be deemed within the scope of this division and be required to take out a peddler’s license; if, however, no license was taken out by the canvasser, the article shall not be delivered without a peddler’s license; provided, that regular commercial travelers employed by wholesale houses and selling staple articles to merchants of the village, shall not be deemed to be within the meaning of this section.”

The authority to pass this ordinance must be found, if it exists, in Chap. 24, Sec. 63, par. 41 and 96, which read thus: “ The city council in cities, and the president and the board of trustees in villages, shall have the following powers:

“Forty-first. To license, tax, regulate suppress and prohibit hawkers, peddlers etc., and to revoke such license at pleasure.”
“ Ninety-six. To pass all ordinances, rules and make all regulations proper or necessaiy to carry into effect the powers granted to cities or villages, with such fines or penalties as the city council or board of trustees shall deem proper; provided, no fine or penalty shall exceed $200, and no imprisonment shall exceed six months for one offense.”

The question is whether the statute supports the second section of the ordinance. By that section the village undertook to say that persons canvassing or taking orders for books, pictures, publications or other articles should be deemed peddlers. Bouvier’s Law Dictionary, Vol. 2, page 323, defines peddlers thus: “ Persons who travel about the country with merchandise for the purpose of selling it.” Webster’s definition is, “A traveling trader; one who carries small commodities about on his back or in a cart or wagon and sells them.” We are of opinion that the business aimed at by the second section of the ordinance can not be termed peddling, and that persons so occupied are not peddlers. It may be that there would be as much reason for requiring a license in the one case as the other and there may be many occupations which should be taxed by means of a license as well as peddlers, but that is beside the question. The power of the village is to be found in the provision of the statute and the authority thereby conferred can not be exceeded. “ Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation and the power is denied.” 1 Dillon on Municipal Corporations, Secs. 55 and 251; Magor v. Cincinnati, 1 O. St. 268. It follows that said section is void for want of power in the village to enact it.

The appellant was charged with selling groceries and dry goods by peddling and hawking without license. The proof was that he went about carrying samples of sugar, tea, coffee, etc., in a sample case, taking orders for goods addressed to a mercantile house in Chicago by whom the orders were to be filled and the goods sent per express C. O. D. to the persons giving the orders. The appellant represented himself as the agent of the Chicago house. This is not peddling nor hawking and unless section Ho. 2 of the ordinance is valid the offense charged was not made out.

The case was tried by the court without a jury, and certain propositions of law taking in substance the view above stated were submitted to the court to be held as the law of the case. But the court refused to so hold and finding appellant guilty imposed a fine of $10 and costs. In so doing we think the court erred. The judgment will therefore be reversed.

Judgment reversed.

The clerk will incorporate in the final order a special finding of fact by this court that upon the evidence as contained in the record appellant was not guilty of the offense of peddling and hawking as charged in the amended complaint.


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    The Chicago & Alton Railroad Company v. Alfred Legg.
    Railroads— Injury to Stock— Evidence — Opinion — Instructions —' Watchfulness—Duty of Trainmen—Damages.

    1. In an action against a railroad company to recover for injuries to stock struck by a train upon its track, the judgment of a witness, derived from an observation of the tracks, of the animals, and other indications, as to the place where they came thereon and as to their direction and speed, is admissible in evidence.
    2. Testimony as to experiments made by witnesses to determine whether stock could have been seen by the servants of a railroad company before coming upon its track, the character of the ground and obstructions to the view at the place in question being involved, is admissible.
    3. It is the duty of trainmen to use ordinary care in looking ahead, and in discovering whether or not any obstructions are on the track. It is not sufficient to use due care after animals are discovered, if, by the use thereof, they might have been seen in time to avoid an accident.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Mason County; the Hon. L. Lacey, Judge, presiding.
    Messrs. Brown & Kirby, for appellant.
    As to all of the rulings on the questions quoted (see opinion) the court below was in error. It was competent for the witness to state and describe the horses’ tracks, but it was not for him to tell what conclusions he arrived at. It was the jury’s province to do that. His conclusion was a mere opinion.
    That this evidence was improperly admitted is settled in this State by the following cases: Linn v. Sigsbee, 67 Ill. 75; Chicago v. McGivin, 78 Ill. 347; Penn. Co. v. Conlan, 101 Ill. 93. See also Clark v. Fisher, 1 Paige, 174; Mayor of New York v. Pentz, 24 Wend. 668; Ramage v. Ryan, 9 Bingham, 333; Norman v. Wells, 17 Wendell, 136; Hopkins v. I. & St. L. R. Co., 78 Ill. 32; C. & N. R. Co. v. S. & N. R. Co., 67 Ill. 142; Keith v. Bliss, 10 Ill. App. 424; Collins v. Crocker, 15 Ill. App. 109.
    The evidence of the experiments made in October, three months after the accident, in the absence of proof that the conditions were the same, is inadmissible from any standpoint.
    As to the instructions, the rule of law applicable to such case is laid down in I. C. R. Co. v. Godfrey, 71 Ill. 509.
    “If defendant’s servants, who were in the management of the engine, after becoming aware of plaintiff’s danger, failed to use ordinary care to avoid injuring him, defendant might be liable.”
    In T., W. & W. v. Barlow, 71 Ill. 640, it is said:
    “ The rule of liability in such a case as the present, when an animal is unlawfully upon a railroad track, we conceive to be, that the company is not, in general, liable, unless its servants, after they discovered that the animal was in danger, might, by the exercise of proper care and prudence, have prevented the injury.” Citing Redfield on Rys., Sec. 126; Godfrey v. Ill. C. B. Co., 71 Ill. 500; see also C. & A. R. Co. v. Hill, 24 Ill. App. 619.
    Messrs. G. W. Ellsberby, T. N. Mehan and E. Lynch, for appellee.
    Opposing counsel contend that the court erred in giving all or any of appellee’s instructions, and in ignoring appellant’s theory that its engineer was not guilty of negligence if he used, ordinary care to avoid injuring the animals after he discovered them, even though in the exercise of such care he might have seen them in time to have avoided the collision altogether. The bare statement of this theory at once suggests its harshness and unsoundness. Such was substantially the rule in this State many years ago, but it was overruled and forever laid to rest in I. C. R. R. Co. v. Middlesworth, 46 Ill. 497. In R. R. I. & St. L. R. R. Co. v. Irish, 72 Ill. 406, the court refers to the rule in the Middlesworth case and says, “ This has ever since been the ruling of this court.” If appellee’s first and second instructions are good then all the others are. The first.one is a substantial copy of an instruction approved by this court in C. & A. R. R. Co. v. Bock, 17 Ill. App. 17. The second is similar to one fully discussed and approved in T. P. & W. R. R. Co. v. Bray, 57 Ill. 515. See also T. P. & W. R. W. Co. v. Ingraham, 58 Ill. 120; C. & N. W. R. R. Co. v. Barrie, 55 Ill. 227; C. & A. R. R. Co. v. Kellam, 92 Ill. 247; W., St. L. & P. R. W. Co. v. Krough, 13 Ill. App. 434.
    As to the evidence excepted to, the case of C. & A. R. R. Co. v. Bock, 17 Ill. App. 17, decided by this court, is directly in point.
   Conger, J.

Appellant was, on the 24th day of July, 1888, operating its railroad between the stations Green view and Mason City, in Mason county, Illinois. Its track was fenced as required by law. About three miles north of Green view the road ran through pasture lands on which appellee and others had a number of horses pasturing. Some person going through this pasture and over the railroad by way of a farm crossing early in the morning of the above date, left the gate on the west side of the railroad open, and from twelve to twenty of these horses strayed onto the right of way and the northbound passenger train ran upon and billed or injured eleven of the number, among which there was a pony, a mare and a colt belonging to appellee. The accident occurred about seven o’clock in the morning.

The track was straight, and appellee contended that the servants of appellant saw, or could by the exercise of reasonable care have seen the horses in time to stop the train and avoid the injury. Appellant denied that the horses were seen in time to avoid the injury, and contended that they suddenly came upon the track, unexpectedly to the engineer, and that so soon as they were observed the engineer did everything in his power to avoid the injury. Appellant introduced evidence to show that the conformation of the ground, vegetation, fences, telegraph poles and hedges were so situated that the horses were obscured from the engineer until they came upon the track. Appellee claimed that the right of way was clear and level, and that there were no obstructions, and that appellant’s servants were negligent in not discovering the horses in time to prevent injury to them.

It was stipulated on the trial that the horses of appellee were upon the track of defendant without its fault or permission. Appellee secured a judgment below for $205.

The first objection relied upon by appellant is that the court below erred in admitting incompetent evidence for appellee.

This objection is based upon questions asked of witnesses as to what they saw upon and along the sides of the track at the place of the accident in the nature of obstructions, the character, appearance and locality of the animals’ tracks, and the judgment of the witnesses based upon what they observed, as to the place where the animals came upon the track, together with their direction and speed. A sample of these questions and answers as given by appellee when upon the stand, we quote from appellant’s briefs.

“ Q. State whether or not, at or near the bridge and looking north to where the horses were killed, there was anything to obstruct the view, so that you could not see horses on the track?
“(Objected to by defendant as incompetent; overruled, and defendant excepted.)
A. hlothing in the way, that I seen. The hedge had been cut back probably a year and had grown up again seven or eight feet high and about four feet thick.
“Q. Were the hedges so located as to obstruct the view of a person coming from the south ?
“ (Objected to by defendant as asking for the conclusion of witness, and incompetent; overruled ; defendant excepts.)
“A. No; the right of way was fifty feet wide. I went there later in the season, in October, with Ellsberry, my son, Linn, Melton and Scoville. On that occasion my son went south from the bridge about a quarter of a mile on the track and sat down on the ties.
“(Defendant objects to the occurrences in October, after the horses were killed; objection overruled, and defendant excepts.)
“ I saw him sit down on the ties. I got down in the ditch, on the east side of the highest grade, probably a hundred feet south of the end of the hedge, on the east side of the track. I think the ditch was six feet deep there.
“ Q. What did you do when you got down to the bottom of the ditch ?
“ (Question objected to by counsel for defendant as incompetent; overruled, and defendant excepted.)
“A. I laid down on my side.
“ Q. State whether or not you looked south.
“ (Objected to by defendant as incompetent; overruled, and defendant excepted.)
“A. I did.
“ Q. What for?
“ (Objected to by counsel for defendant as incompetent; overruled, and exception.)
“A. To see my son; I saw him; he was sitting between the rails, on the ties. Gus Melton went down with me.
“ Q. From the bridge, looking north, you may state to the jury whether or not there was anything to obstruct the view between the bridge and the point were the horses were killed.
“(Objected to as incompetent and asking for conclusions; objection overruled, and defendant excepts.)
■ “A. There wasn’t anything. On the 25th of July I examined to see if the horses had come on the track at any point. I found where they started to run out of the ditch, and where they got on the track. I saw their tracks as they went on,. about a hundred and ten feet south of the hedge. I found tracks coming up from both sides onto the track. The track on the east side looked as if it might have been eight or nine horses.
“ Q. If yon could tell, from the appearance of the tracks and the indications you saw there, what the gait of the horses was, in coming up on the track, state what, in your judgment, the gait of the horses was?
“ (Objected to by defendant as asking for an opinion; overruled, and defendant excepted.)
“ A. It must have been running.
“ Q. What do you judge that from ?
“(Same objection; same ruling, and exception.)
“A. From the shape of the tracks; 1 saw marks of their hoofs on the ties, going north. The track was ballasted with slag. I found my horse’s shoe on the track, and some pieces of hoof, seven or eight in all, about the size of my finger. Some were an inch and some a half inch wide, that had bursted off the sides of hoof. Afterward found slag imbedded in the frog of the horses’ feet.
“Q. From the indications you have described, you may state to the jury what, in your judgment, was the gait the horses were going at—going north on the track?
“(Objected to by defendant as incompetent, and asking for conclusions; overruled, and defendant excepts.)
“ A. They were running.”

We do not think appellant’s objection to these questions is well taken. For a witness to state that by actual trial he could stand at one point and see to another, is not expressing an opinion, but is a statement of the fact that there was no obstruction to the sight between such points. In no other way could he so clearly give the jury the facts, for, after describing the ground, the situation of surroundings and intervening objects, the jury would be unable to say whether such obstructions did or did not interfere with the view of the witness. In reference to the experiments made by the witness of getting into the ditch at the side of the track and seeing his son sitting down upon the ties at another point, we can see no objection. It was done to show how the depth of the ditch, the height of grass and weeds, at the distance the two were from each other, would obstruct the vision. Such evidence may not have had much weight with the jury, because the witness in making his observations was not in the same position as the engineer and fireman upon the engine, and because the latter were moving rapidly, with the cares and responsibilities of their station needing their attention, while the witness would be at rest and giving his mind entirely to making these observations; but these circumstances would only bear upon the weight and value of such evidence, and not upon its competency. The statement of the witness that, in his judgment, determining from the appearance of the tracks and the indications that he saw, the animals at a given point were running, was, we think, proper. If one can determine from an inspection of the tracks the gait of the animal making them, we apprehend it would be difficult, if not impossible, to so describe to a jury the peculiarities of the track as to enable them to see them with the eyes of the witness.

It is not unusual for a witness to state that one whom he observed had a pleasant or an angry look upon his countenance. He reaches this conclusion, and may state it to a jury as a fact, and yet, if asked to describe to them the appearance in detail of the face of the person so observed, in order that the jury might determine whether he was right in his conclusion, he could do no more than to reproduce for their benefit the impression made at the time upon his own mind.

The court gave the following instruction :

“ The jury are instructed that it is the duty of the engineer and fireman to use ordinary care in looking ahead, when running the railroad train, for the purpose of detecting and discovering anything on the track, to prevent injury and accident; and if the jury believe from a preponderance of the evidence such servants failed to use such care, and by reason thereof they failed to discover the horses in time to prevent injury, and thereby the horses were killed, then the plaintiff, if he used ordinary care in keeping the horses off the track, should recover. This question of negligence should be considered with reference to all the other duties of the fireman and engineer, and also the fact that the horses might not reasonably be expected to be on the track, and also all the other circumstances in the case, and the servants of the defendant be held, under all the circumstances, to use only such care-as a reason, ably prudent person would have done under the circumstances.”

It is insisted that this and other instructions of the same import are in conflict with the doctrine of the Supreme Court as announced in T. W. & W. Ry. Co. v. Barton, 71 Ill. 640, and of this court in the Hill case, 24 Ill. App. 619. When the facts of those cases and the questions passed upon are noticed, we think the objection made is not tenable.

In the Barlow case, no claim was made that the engineer and fireman had failed in their duty in keeping a proper lookout. The court in that case say:

“About 100 feet from the highway, the engineer, who was looking ahead for a signal to stop at the station, saw two cows approaching the track, in the highway; first saw their heads as they came within range of the headlight of the engine, just as they were coming upon the crossing. * * * The night was dark and the cow could not be seen from the engine until she came within the range of the headlight;” and from that time the court say the engineer did all that he could to prevent injury to the animal, and therefore conclude the company was not liable. It may well be supposed that if there had been a question in that case as to whether the engineer and fireman had neglected to use ordinary care in looking ahead, the holding of the court upon such question would have been in accordance with the instruction complained of in this case.

In the Hill case, supra, the reasons given for sustaining the judgment of the court below were that the engineer after he discovered the animal failed to exercise proper care and prudence, so that in that case the question did not arise what measure of care the engineer and fireman of a train should exercise. in looking ahead for obstructions upon the track.

We think the instruction given is the law. It requires the engineer and fireman to use ordinary care in looking ahead when running a railroad train, for the purpose of detecting and discovering anything on the track, and this duty is to be considered in reference to all their other duties.

If the engineer and fireman of appellant fell short of this reasonable and proper measure of their duty, we think it was negligence on their part.

Finding no substantial error in the record, the judgment of the court below will be affirmed.

Judgment affirmed.