author: Per Curiam :

text:
    The North Chicago City Railway Company v. John Gastka.

      Filed at Ottawa

      May 16, 1889.

    1. Master and servant—respondeat superior—generally. Where the relation of master and servant exists between a city railway company and a person whose act may be the cause of an injury to another, the company will not be liable," if the servant, in causing the injury, is not acting within the scope of his employment; but the master will be responsible, when the servant acts within the general scope of his employment, for acts done while engaged in his master’s business, with a view to the furtherance of that business, by which injury is caused to another, whether negligently or wantonly committed.
    2. Same—ejecting passenger from street car—without due care on the part of the servant. If a person is a trespasser upon a street railway car, or is unlawfully riding thereon without the payment of fare, and the conductor undertakes to remove the intruder, he must act in a prudent manner, and exercise due care for the safety of such person; and if he fails to do so, and in consequence thereof such person is injured, the railway company will be liable for the injury.

      3. CoNTBsnuAN'OE—absence of witnesses. Certain witnesses of a defendant, duly subpoenaed, failed to appear when he had finished his other evidence, and he asked time to procure the absent witnesses. The court refused to delay longer than fifteen minutes. On motion for a new trial, the defendant, by affidavit, showed these facts, and the materiality of the testimony of the witnesses, but failed to show that the absence of the witnesses was not by his consent: Held, that for this omission alone the defendant failed to make a proper showing.
    Appeal from the Appellate Court for the First District;—■ heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. W. C. Goudy, for the appellant:
    Even if a servant is engaged in the performance of his duty to his master, yet if he, personally and wholly for a purpose of his own, does an act not connected with the business of such master, and not intended by him to further the objects of such employment, the master is not liable for an injury thereby occasioned. Cooley on Torts, 535 ; Wharton on Negligence, sec. 168; Tuller v. Voght, 13 Ill. 277; Oxford v. Peter, 28 id. 434; Porter v. Railroad Co. 41 Iowa, 358; McManus v. Cricket, 1 East, 106; Wright v. Wilcox, 19 Wend. 343; Howe v. Newmarch, 12 Allen, 49; Johnson v. Barber, 5 Gilm. 425.
    It has been held by courts of the highest respectability, that the willful and malicious throwing of a passenger from the car, by the conductor of a street ear, is not an act done in execution of a duty of the conductor to his employer, and that the street car company is not liable therefor. Isaacs v. Railroad Co. 47 N. Y. 122; Railroad Co. v. Donahue, 70 Pa. St. 119; McKeon v. Railroad Co. 42 Mo. 79.
    A newsboy selling newspapers on the street, and accustomed to board street cars, with the acquiescence of the servants of the company, for the purpose of supplying the passengers with papers, is not a passenger, and the company is not charged with the duty of looking after his safety, or of seeing that he does not run into danger, or of stopping the speed of the car for him to leave, whether requested to do so or not. Thompson on Carriers of Passengers, 46; Fleming v. Railroad Co. 1 Abb. (N. C.) 433; Blackmore v. Railroad Co. 38 Upper Can. (2 B.) 172.
    Whenever an injury has been caused by the conduct of a servant in the business of his master and within the scope of his employment, the master has been held liable, although such conduct may have been tortious. The question of liability does not depend entirely on the quality of the act, but rather upon the other question, whether it has been performed in the line of duty, and within the scope "of the authority conferred by the master. Seymour v. Greenwood, 7 H. & N. 355; Limpus v. Omnibus Co. 1 H. & C. 526; Goff v. Railway Co. 3 E. & E. 672.
    A new trial will be granted on the ground of surprise, when a material witness who has been subpoenaed withdraws, or absents himself, so that his testimony can not be taken. Hilliard on New Trials, (2d ed.) 536; Tilden v. Gardner, 25 Wend. 653; Ruggles v. Hall, 14 Johns. 112.
    The non-attendance of a material witness, or the absence of a material piece of testimony, contrary to reasonable expectation, and satisfactorily accounted for, will induce the court to set aside the verdict and grant a new trial. 1 Gra. & Wat. on New Trials, 209; 3 Wait’s Prac. 402; Oakley v. Sears, 7 Rob. 111; Cotton v. State, 4 Texas, 264.
    Mr. John Gibbons, and Mr. Frank H. Goin, for the appellee.
   Per Curiam :

This was an action of trespass on the case, to recover for personal injuries. The declaration contained three counts. The second count in the amended declaration sets up plaintiff’s cause of action more fully than either of the ■other counts, and it is in substance as follows: “That on the 18th day of August, 1885, defendant was operating a city passenger railway in the city of Chicago, and was possessed of certain cars drawn by horses for the conveyance of passengers upon said railway; that divers newsboys, for a long time prior to the happening of the grievances complained of, were accustomed to go upon said cars to sell newspapers to the passengers, upon said cars, with the knowledge, consent and approbation, of, and without the objection of, defendant, and plaintiff, as such newsboy, on the day last aforesaid, boarded a certain passenger car possessed by defendant, for the purpose of selling-newspapers to the passengers who had taken passage on said car, as he lawfully might; that while plaintiff was lawfully upon said car, and in the exercise of due care, defendant, through its servants and agents, without notice to plaintiff to get off said car, and without any warning to plaintiff, then and there violently, negligently and unlawfully cast and threw plaintiff, with great force and violence, to the ground there, and certain horses of defendant, and a certain passenger railway car of deféndant drawn by said horses, and moving in an opposite direction to which said first mentioned car was running, tramped upon and ran over the body and legs of plaintiff, and by reason of being then and there tramped upon and run over, divers bones of plaintiff’s body were broken, and the legs-of plaintiff were crushed, contused, mangled, lacerated and broken, and he became and was sick, sore, lame and disordered, and so remained from thence hitherto, during all which time plaintiff thereby suffered great pain, and was prevented from transacting his ordinary business.” To the declaration the defendant pleaded the general issue, and on a trial before-a jury the plaintiff recovered a judgment, which was affirmed in the Appellate Court.

It is insisted on behalf of the North Chicago City Bailway Company, that it is not liable, for the reason that “the act of throwing the plaintiff from the car, was the violent, wanton- and malicious personal act of Bullock, (the conductor,) and he, alone, is liable.” Much of the argument has been devoted to establish this proposition, and quite a number of authorities have been cited to sustain the view of the defendant. We do not think there is any difficulty in reference to the law upon this question. Where the relation of master and servant exists between the railway company and the person whose act may be the cause of an injury to another, the company will not be liable if the servant, in causing the injury, is not acting within the scope of his employment; but, on the other hand, the law is equally well settled that the master will be responsible, where the servant acts within the general scope of his employment, for acts done while engaged in his master’s business with a view to the furtherance of that business, by which injury is caused to another, whether negligently or wantonly committed. Chicago, Milwaukee and St. Paul Ry. Co. v. West, 125 Ill. 321.

' It was claimed on the trial of the cause in the trial court, by the defendant, that the conductor did not push the plaintiff off the car, but that plaintiff of his own accord jumped off the car and was thus injured, and so the conductor testified. But here the defendant seems to have changed his line of defense, claiming that the injury was the result of the wanton and malicious personal act of the conductor. In the view we take of the case, it will not be necessary to stop to inquire which theory of the defendant may be correct on the question of fact, or, indeed, whether either was sustained by the evidence. Under the rule laid down in the case cited, if the plaintiff was injured by the act of the conductor when acting under the general scope of his employment, the defendant will be liable. The conductor had charge of the car. One of his duties was to collect fares from persons who might enter the car. Now, while engaged in the discharge of this duty, in passing through the cars he came to the plaintiff, who a short time before had entered the car, and, as the evidence introduced on the part of plaintiff tended to prove, he pushed the plaintiff off the car. The testimony of the conductor of itself is enough to establish the fact that he was acting within the general scope of Ms employment when the plaintiff was put off the ear. He testified: “I got to Chicago avenue, and there was an old gentleman got on. We got near Superior street. We started up again. We got between the blocks. This boy jumped on the car. I started to go around to collect fares, and in so doing I swung off the back platform, and shouted to the boy, '‘Look out there,’ and he jumped off and the car coming north caught him. The boy was about five feet from me, I guess, when he jumped from the car. I was just swinging off from the rear platform.” Whether the plaintiff was a trespasser on the car, or was unlawfully riding on the car without the payment of fare, was a matter of no moment. If plaintiff had no right on the ear, and the conductor, in the discharge of his duty as manager of the car, undertook to put him off, the law required him to act in a prudent manner, and exercise due care for the safety of the plaintiff, and if he failed to do so, and in consequence the plaintiff was injured, the defendant was liable.

The court gave, on behalf of the plaintiff, four instructions, and in the argument it is claimed that they are all erroneous. The instructions may contain technical inaccuracies, but in the main we regard them as correct. They contain nothing calculated to mislead the jury.

All the instructions asked on behalf of the defendant, ten in number, were given as asked. There is therefore no just ground for claiming that the jury were not fully instructed.

One other question remains to be considered. Two witnesses who had been subpoenaed to attend and testify for the defendant, and who had been in attendance, failed to appear when the defendant had finished introducing his other evidence, and the defendant requested time to procure the witnesses. The court delayed the cause some fifteen minutes, and then refused to wait longer for the witnesses. On the motion for a new trial, an affidavit on behalf of defendant was read, showing the facts relied upon on this branch of the case. It may be that the evidence of the witnesses would have been material; but it nowhere appears, from the showing of the defendant, that the absence of the witnesses was not by its consent, and upon this ground, alone, the defendant failed to make a proper showing.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    The Elgin, Joliet and Eastern Railroad Company v. James M. Fletcher et al.

      Filed at Ottawa

      May 16, 1889.

    1. Eminent domain—measure of damages—how far controlled by the stipulation of petitioner. It is competent upon the trial of a condemnation proceeding, for the petitioner to bind itself, by an offer in open court, to the performance of duties, such as to inclose its right of way over the defendant’s land in a shorter time than required by statute, and construct and maintain a suitable and proper underground crossing under the road-bed, etc., and thereby, and to the extent that such performance will prevent damages that would otherwise occur, abridge the land owner’s claim for damages.
    2. Where the petitioner, on the trial, offers and agrees to fence its right of way over defendant’s land, and make the necessary, suitable and proper farm crossings and cattle-guards on or before a day named, which is a less period than the statute fixes, all the damages recoverable because of the road not being fenced, or for want of crossings, etc., will be those sustained before the day named.
    3. Same—judgment of condemnation subject to performance of stipulation. Where the petitioner, on the trial, in open court, agrees to perform duties not required by the statute, or in less time than the law requires, for the purpose of lessening the damages, the judgment should vest the rights obtained by the condemnation, subject to the performance of such duties, so as to insure their performance.
    4. Same—offer of petitioner—how far binding as a contract. E an offer of the petitioner, in open court, on the trial, to make fences, crossings, etc., in a shorter period than that required by statute, is taken in consideration in the assessment of damages, the liability of the petitioner in that regard will thereafter become one by virtue of express contract, and if the contract is not performed, an action will lie for its breach.
    5. Same—binding character of offer of petitioner as a question of law or fact. Whether an offer by a railway company, on the assessment of darAages for a right of way, to fence its road and make crossings by a day named, is binding on the company, is not a question of fact for the jury, but is purely a question of law, and it is error to submit such question to the jury as one of fact.
    6. Practice—improper remarks of counsel to the jury. A court hearing counsel, under pretense of arguing a case, making statements Of matters to the jury not in evidence, nor pertinent as illustrative of matters in evidence, should promptly stop him, explain to the jury the impropriety of his language, and take such measures as are appropriate to prevent a repetition of such misconduct, and for a failure of duty in this respect manifestly affecting the result, the judgment should be reversed.
    7. In such case, the counsel whose client is unfavorably affected by such statements, should call the attention of the court to them at the time, lest the court might not otherwise have noticed the same.
    Writ op Error to the County Court of Du Page county; the Hon. Charles A. Bishop, Judge, presiding.
    Mr. Noah E. Gary, for the plaintiff in error:
    The court erred in refusing to give this instruction, asked by the appellant:
    “The jury are instructed, that the petitioner railroad company is bound by the statute, within six months after any of its line is open for use, to erect and thereafter maintain fences on both sides of so much of its road as is open for use, suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad, excepting at the crossings of public roads and highways, with gates or bars at the farm crossings of such railroads; and also to construct such farm crossings wherever they are necessary, for the use of the proprietors of the lands adjoining such railroad; and also to construct and maintain at all highway or public road crossings now or hereafter existing, cattle-guards, suitable and sufficient to prevent cattle, horses, sheep, hogs and other stock from getting on such railroad; and the jury have no right in this case, in estimating the damages, to take into consideration any loss, inconvenience or damage resulting from the failure of the petitioner to maintain such fences, farm crossings or cattle-guards at highway crossings, as above stated.”
    This instruction follows the provisions of the statute in every substantial particular, and no one was given upon the subject therein embraced.
    It is insisted the first instruction given by the court at the request of respondents is erroneous. By it the jury were instructed that the petitioner was not bound to fence any portion of its railroad until six months after such part of its line was open for use, and that the jury might consider whatever damages they might believe, from the evidence, would be caused by reason of leaving open the tracks for six months, unless, the court added, the petitioner had stipulated, in open court, that it would, May 1,1888, construct and thereafter maintain suitable fences. The petitioner had, in open court, stipulated that it would, on or before May 1, 1888, construct and thereafter maintain suitable and statutory fences, and would construct and maintain a suitable and proper underground crossing, twelve feet square. This stipulation was binding. Railroad Co. v. Railway Co. 105 Ill. 388; Hayes v. Railroad Co. 54 id. 373.
    As to the alleged improper statements and remarks of counsel, see Railroad Co. v. Johnson, 116 Ill. 210; Railroad Co. v. Bragonier, 13 Bradw. 467; Jackson v. People, 18 id. 519; Chase v. City, 20 id. 279.
    Messrs. Botsfobd & Wayne, for the defendants in error:
    The refused instruction of which complaint is made, is in conflict with Railroad Co. v. Kirby, 104 Ill. 345, and Railroad Co. v. Rixman, 121 id. 214.
    The offer of appellant’s counsel was of no binding effect on the railway company. It purports to have been made on the ■authority of the engineer of the road, but nothing is shown that authorized the engineer to thus bind the company. He, it seems, was present, and if he had with him any such authority, counsel, if sincere, would have shown the fact.
    The eases referred t.o by counsel in support of his position show a different state of facts. In the case of Hayes v. Railroad Co. 54 Ill. 373, there was a stipulation written out, signed by the president, secretary and treasurer of the company, and filed in the case. In the case of Railroad Co. v. Railway Co. 105 Ill. 388, there was a stipulation, signed by the company, filed in the case, and offered in evidence. The court sustains these stipulations, because “they were executed in a manner to be obligatory on petitioner.” But in the case at bar there was no binding obligation of the company. It was so understood, as the case went on with this element of damages still before the jury.
    Admit that in the opening speech of counsel for the defense improper remarks were made, yet the court, so soon as his attention was called to the matter, rebuked counsel. It is not sufficient for counsel, when improper remarks are being addressed to a jury, to silently except, as the court may be engaged in preparing or reviewing instructions, but counsel should, by some positive act, call the attention of the court to the fact. Wilson v. People, 94 Ill. 299; Mayes v. People, 106 id. 306; Bulliner v. People, 95 id. 394.
    But the rule is almost universal, in both criminal and civil cases, that the appellate court will not reverse a case for improper remarks of counsel made in argument to the jury, unless made in violation of some statutory provision, or neglect of the trial court, when appealed t-o, to correct the abuse. And we believe the rule further to he, without exception, that a reversal will not be held in any case where the verdict of the jury is fully sustained by the evidence. Garrity v. People, 107 Ill. 163; Baysinger v. People, 115 id. 419; Railroad Co. v. Johnson, 116 id. 206; Henry v. Railroad Co. 121 id. 264; Felix v. Scharnweber, 119 id. 445; Spies v. People, 122 id. 1.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This is a proceeding under the Eminent Domain act, to condemn right of way for appellant’s road, and to assess damages occasioned to land not taken. Appellees own a farm of about 314 acres, through which the line of appellant’s road runs, taking for right of way about 9-¡^ acres, and dividing the farm so that there are about 184 acres on the east side of the road, and 120 acres on its west side.

There is a serious conflict in the evidence on the question of damages to the land not taken. The jury, in their verdict, assessed the value of the land taken, and the damages to land not taken, at the aggregate sum of $3700, and the court gave judgment upon this verdict.

Wallace F. McChesney, upon his examination as a witness, testified that he thought the land taken was worth $70 per acre, and that the damages to the land not taken were $1000, and he then said: “I have added $500, because the right of way may be unfenced for six months—that is included.” Thereupon the attorney for appellant addressed the court as follows: “The chief engineer of the petitioner company has just arrived, and I wish to state in open court, by authority of the engineer, and in his presence, and as counsel for the petitioner, that it hereby agrees it will, on or before May 1, 1888, enclose its right of way over respondents’ land in question, with suitable and statutory fences, and thereafter maintain the same, and that it will, in building its road, construct and thereafter maintain a suitable and proper underground crossing, at least twelve feet square, on respondents’ land in question, and under petitioner’s road-bed.”

The court, at the instance of appellant, instructed the jury, among other things, as follows:

“The jury are instructed, that in this case the petitioner railroad company has, in open court, stipulated that it will, on or before the first day of May, A. D. 1888, construct, and thereafter maintain, suitable fences along its right of way over the property of the respondents, and that it will construct and permanently maintain an under-crossing, twelve feet square, and that the jury, in considering of their verdict, have the right to assume that the proposal and agreement of said petitioner will be carried out, and the jury, in fixing their verdict, should not take .into account any failure of the petitioner to keep and observe its agreement with reference to such fences and under-crossing.”

One of the instructions given at the instance of appellees is as follows-:

“The jury are instructed, that the railroad company is not bound by law to fence any portion of its railroad until six months after such part of its line is open for use, and in determining, in this case, whether the defendants sustained damages, and in fixing the amount thereof, the jury may consider whatever damages they may believe, from the evidence, will be caused to the defendant by reason of leaving the railroad tracks open and without fences for the said period of six months after it is open for use, unless the jury further believe the petitioner railroad company has, in open court, stipulated that it will, on or before the first day of May, A. D. 1888, construct, and thereafter maintain, suitable fences along its right of way on the property of respondents.”

Appellant asked, but the court refused to give, an instruction reciting the statutory duty of the appellant to make fences within six months after the time that its line is open for use, and to construct farm crossings, cattle-guards, etc., and concluding thus: “And the jury have no right, in this case, in estimating the damages, to take into consideration any loss, inconvenience or damage resulting from the failure of the petitioner to maintain such fences, farm crossings or cattle-guards at highway crossings, as above stated.”

It is recited in the judgment of condemnation, among other things, as follows: “It is therefore ordered and adjudged by the court, that judgment be and the same is hereby entered herein upon the said verdict, and that the said petitioner, upon payment to the county treasurer of the sum of $3700 for the use of James M. Fletcher and Mark W. Fletcher, and to be paid to them on demand, taking their receipts therefor, respondents herein may enter upon and have that portion of the premises described in the petition filed herein, to-wit:” (Here follows a description of the land taken.) “And subject to the obligation of the petitioner to fence the same, on or before May 1,1888, and to establish an underground crossing and grade crossing, as stipulated upon the trial.”

Before the giving of any evidence, the jury viewed the premises, and thus had an opportunity to acquire personal knowledge of the manner in which the farm is affected by the road.

No discussion can be needed to show that if the instruction quoted, which was given at the instance of appellant, was properly given, the instruction quoted, which was given at the instance of appellees, was improperly given. If the offer to make fences, crossings, etc., was binding on appellant, it superseded the statutory duty to make fences, etc., for it provided they should be made within a shorter period than that proxided by statute. The liability of appellant, in that regard, thereafter became one by virtue of express contract, and if the contract should not be performed, suit would lie for its non-performance, at any time after the first of May, 1888; and hence, all the damages that could be included in the judgment here, because of the road not being fenced and for want of crossings, etc., are those to be sustained before the first of May, 1888. And so, on the other hand, if the offer to make fences, crossings, etc., was not binding, the statutory liability would apply, and damages should be assessed for not fencing, etc., until the expiration of six months after the road is open for use; and in that view, the jury should have been told, as asked by appellant, that no damages should be included in this judgment for not fencing, etc., after that period. Whether the offer to fence, etc., is binding on appellant, is not a question of fact for the jury. It is purely a question of law, as the court treated it in the instruction quoted, given at the instance of appellant; and it was therefore error to afterwards submit it, as was done by the instruction quoted, given on behalf of appellee, as a question of fact to the jury.

We think it is competent, upon the trial of a condemnation case, for the party seeking condemnation to bind itself, by an offer in open court, to the performance of duties like those here offered to be performed, and to thereby, and to the extent that such performance will prevent damages that would otherwise occur, abridge the claim by the land owner for damages. (Chicago and Alton Railroad Co. v. Joliet, Lockport and Aurora Railway Co. 105 Ill. 388; Hayes v. Ottawa, Oswego and Fox River Valley Railroad Co. 54 id. 373.) The judgment in such case should vest the rights obtained by the condemnation, subject to the performance of such duties, so as to insure it, and that was sufficiently done here.

It may be, as contended by counsel for appellees, that the difference between the first of May, 1888, and the expiration of six months from opening the road, is not very great. Still, there is a difference in time in favor of the undertaking of the company; and it is impossible to say how much greater the damages assessed may have been upon the assumption that fences, etc., were not necessarily to be built until after the expiration of six months from the opening of the road, instead of by the first of May, 1888. The sum assessed is quite large, and it can not be said that we can see that this error did not affect the amount. St. Louis, Jacksonville and Chicago Railroad Co. v. Mitchell, 47 Ill. 165.

Other objections are urged because of the mode of argument pursued, upon the trial, by the attorneys for appellees, but as it is not probable that this objectionable conduct will be repeated upon the next trial, we deem it unnecessary to notice and comment upon it in detail.

A court hearing counsel, under pretense of arguing a case, making statements of matters to the jury not in evidence nor pertinent as illustrative of matters in evidence, should promptly stop the counsel, explain to the jury the impropriety of his language, and take such measures as shall be appropriate to prevent a repetition of such misconduct; and for a failure of duty in that respect, manifestly affecting the result, the judgment should be reversed-. But the counsel whose client is unfavorably affected by such statements should call the attention of the court to them at the time, for it might be that, being preoccupied with other matters, they would otherwise escape his attention.

For the error indicated, the judgment is reversed, and the cause remanded for a new trial.

Judgment reversed.


author: Mr. Chief Justice Craig

text:
    The Kankakee Coal Company v. The Crane Bros. Manufacturing Company.

      Filed at Ottawa

      May 16, 1889.

    Mechanic’s lien—evidence of indebtedness—to be produced. The petitioner for a mechanio’s lien is bound, on the hearing before the master, or upon the hearing in court, to make out his right to the lien; and for that purpose to produce the original notes given to him, or to account for their non-production.. A stipulation that at the time of the filing of the bill the notes, as charged in the bill, were unpaid, and that said notes were dated and due for the amounts as charged, will not obviate the necessity of producing the notes on the hearing.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. Alfred Sample, Judge, presiding.

      Mr. Stephen K. Moore, for the appellant:
    The complainant was not entitled to a decree without producing the notes or accounting for the same. Clement v. Newton, 78 Ill. 427; Bayard v. McGraw, 1 Bradw. 141; Peck v. Standart, id. 228; Rayburn v. Day, 27 Ill. 46.
    Mr. H. K. Wheeler, for the appellee, contended that the stipulation in the ease waived the necessity of producing or • accounting for the notes.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a petition brought by Crane Bros. Manufacturing Company, against the Kankakee Coal Company and others, to enforce a mechanic’s lien. It is alleged in the petition that the Kankakee Coal Company applied to petitioner “to furnish it, for use in its coal mine, on the lands hereinafter named, one horizontal link-motion engine, for hoisting purposes, and that on the 14th day of March, 1883, your petitioner and said coal company made a contract for mine hoisting machinery, to be delivered by your petitioner on board the cars in Chicago, Illinois, for the sum of $2200, to be paid for, one-third cash, at the delivery of said hoisting machinery, and one-third in three months from date of delivery, and one-third in four months from date of delivery, and that in pursuance of said contract your petitioner made said hoisting engine, and that on the 20th day of July, 1883, was ready to deliver said engine, but that the coal company pretended it could not comply with its said agreement as to the time of payment for said hoisting machinery, and it was then and there agreed that said coal company should pay-for said engine as follows: $741.47 on September 20,1883, $746.27 on the 20th day of October, 1883, and $751.55 on November 20, 1883, by the notes, for said amounts, of said company, all bearing date July 20, 1883 ; and your petitioner, in pursuance of said, agreement, delivered said hoisting engine to the said coal company, and it was then shipped to the land of said coal company, and put in use on said coal land, and used in the operations of the coal mine.” It is admitted in the answer that the coal company purchased an engine for hoisting purposes, as is charged in said bill of complaint; that the coal company gave its notes to complainant for the payment of the engine; that the engine is used by the coal company in hoisting coal; that the coal company is in possession of the land mentioned in the petition; but it is denied that a lien can be enforced in equity, under the case made in the petition. Upon replication being filed, the cause was referred to the master, the evidence taken, exceptions to the report overruled, and a decree rendered in favor of petitioner.

Several grounds have been urged for a reversal of the decree, but in the view we take of the record it will only be necessary to consider one of them.

The three promissory notes which were given for the engine were not produced before the master, nor were they presented in the circuit court, or offered in evidence ón the hearing. Upon this state of facts a specific objection was made by the defendant in the argument before the master, as follows: “No lien can be enforced unless the notes are delivered up, which is not done.” In the master’s report the objection was disposed of in the following language: “As to delivering up the notes, the evidence does not disclose where they are, but as complainant can both sue at law and file bill for a lien, I hold he does not have to deliver up the notes. The notes being given to complainant, the presumption is that the company still has them, until the contrary is shown by the defendant.” Exceptions were filed to this part of the 'report, but they were overruled. It will thus be seen that the question was fairly presented before the master, and in the circuit court, whether the petitioner could recover without the production of the notes, or accounting, in some satisfactory manner, for their non-production. No decree could be obtained in favor of petitioner unless an indebtedness was established, and the notes which had been given for the engine were the evidence necessary to establish the debt. The petitioner was therefore bound to produce the notes or account for their non-production.

There was a stipulation of the parties in regard to certain facts, which, among other things, contained the following: “It is admitted that at the time complainant filed the petition the three notes, as charged in complainant’s bill, were unpaid, and said notes were dated and due for the amounts as charged in said bill.” And in the argument it is claimed that this stipulation dispensed with the production of the notes. Suppose the notes were unpaid when the bill was filed; that they were dated as alleged, due for the amounts as charged in the bill. This might all be true, and at the same time the notes might be held and owned by a third party. If the notes were held and owned by a stranger when the petition was filed, it is plain that the petitioner was not entitled to a decree. The burden was upon petitioner to establish eac'h fact required by the statute before he was entitled to a decree. One of the contested facts was a bona fide indebtedness. That was not proved or admitted.

It has, however, been suggested, that the question was not raised in the circuit ’court. This is a misapprehension of the condition of the record. The master’s report and the exceptions thereto show, beyond dispute, that the question was fairly presented, and relied upon by the defendant, and there was ample opportunity to produce the notes before the master, or on the trial before the court, after the question was raised. We think in this regard the decree is erroneous.

The judgments of the Appellate and circuit courts will be reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Wilkin

text:
    Joshua C. Sanders v. Henry E. Seelye et al.

      Filed at Ottawa

      May 16, 1889.

    1. Attorney at law—attorney’s lien. Attorneys’ liens are classed as general (or retaining) liens, and charging (or special) liens. The first attaches to all papers, documents, etc., which the attorney receives professionally; the second only upon that which is recovered through his professional services. This court has held that the latter of these liens does not exist in this State; but the court now holds, that in a proper case an attorney may, in this State, maintain a general or retaining lien.
    2. This retaining lien exists on all papers or documents of the client placed in the attorney’s hands in his professional character or in the course of his professional employment, and it makes no difference what the purpose may have been in placing them in the attorney’s hands.
    3. Same—lien in favor of different firms. Where a client knows that an attorney and a firm of attorneys are acting together as his attorneys in a case, and he delivers bonds to either one of them, to be used for his benefit in the litigation, the lien will attach on the bonds for the benefit of them all, for any balance due by him to either firm as fees in the case.
    4. Same—rule on attorney to surrender papers, etc. If an attorney does not receive bonds of his client in his professional capacity, but only as a mere custodian, the court has no authority to make an order in some other suit requiring the attorney, to show cause why he should not surrender them. The fact that the client files his petition in a suit he has had with others, for a rule on his attorney to surrender and deliver up bonds placed in his hands, is inconsistent with the contention that the holder did not receive them professionally, to be used in such suit.
    5. Same—contract of employment—in what court. A party wrote a letter to his attorneys, offering to give them $500 fees for attending to a case in the Supreme Court. The case had to go the Appellate Court, and preparation was being made to take the case there. The whole correspondence between the attorneys and client showed that the services contracted for were services in the Appellate Court: Held, that the court below was justified in finding that the special contract related to the Appellate and not the Supreme Court.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Mubbay F. Tuley, Judge, presiding.
    Mr. D. T. Coebin, for the appellant:
    Attorneys have no lien, in this State, for their professional services, upon a quantum meruit, upon railroad bonds of their client involved in litigation conducted by them. Humphrey v. Browning, 46 Ill. 476; Forsythe v. Beveridge, 52 id. 268; LaFramboise v. Grow, 56 id. 202; Lucas v. Campbell, 88 id. 447; Nichols v. Pool, 89 id. 491.
    When an attorney accepts possession of his clients bonds involved in litigation being conducted by him, with the distinct understanding and agreement that he is to place them in a safe place, and hold the same subject to his client’s order, the client is entitled to have such bonds on demand; and such agreement constitutes a waiver of any lien thereon for professional services, even if it otherwise existed. Darlington v. Chamberlain, 20 Bradw. 443; Walker v. Birk, 6 D. & E. 258; Overton on Liens, 143; Firth v. Forbes, 4 DeG., F. & J. 409.
    Liens, when they exist, do not attach to papers received by the lawyer in any other than a professional capacity. Bozen v. Bolland, 4 M. & C. 354; Wickens v. Townsend, 1 R. & M. 361; Ex parte Nesbett, 1 S. & L. 279; 1 Hoffman’s Ch. Pr. 35.
    If papers are delivered to the lawyer only for a specific purpose, he can have a lien only in respect to such purpose, and not in respect to other transactions. Lawson v. Dickinson, 8 Mod. 306; Balch v. Syrnes, 1 Turner, 192.
    When attorneys are co-partners when they accept a retainer, the contract of retainer is a joint and continuing one, and neither of the partners can be released from its obligations, either by a dissolution of their firm or by any other act or agreement between themselves. Whatever is done by either in defense of a suit (retained in before dissolution) after dissolution, is done under the contract of retainer which they had previously made with their client, as much as if they had not dissolved. Walker v. Goodrich, 16 Ill. 341.
    The employment of one of a firm of attorneys is the employment of all. Eggleston v. Boardman, 27 Mich. 14.
    It is the duty of the several members of a law firm retained to attend to legal business, to go on and complete their contract, after dissolution of the partnership, without reference to having entered into a new partnership. Moshier v. Kitchell, 87 Ill. 18.
    The law of principal and agent is generally applicable to that of client and attorney. Wharton’s Com. on Agency and Agents, 580.
    If the agent does not perform his appropriate duties, or if he is guilty of gross negligence, or gross misconduct, or gross unskillfulness, in the business of his agency, he will not only become liable to his principal for any damages which the latter may sustain thereby, but he will also forfeit his commissions, and in case of a solicitor, will forfeit his fees. Story on Agency, (9th ed.) see. 331; Mechem on Agency, sec. 832; Prescott v. White, 18 Bradw. 322; Sea v. Carpenter, 16 Ohio, 412; Segar v. Parish, 20 Gratt. 672.
    The measure of damages in an action against the attorney is the actual loss sustained as the natural, direct and proximate result of his negligence or default. Mechem on Agency, sec. 835; Stevens v. Walker, 55 Ill. 151.
    At the time of employing an attorney, the party and attorney may agree upon the amount of compensation. When such a contract is fairly made, it is conclusive upon both parties, unless its provisions have been waived. Stanton v. Embrey, 93 U. S. 548; Planters’ Bank v. Hornberger, 4 Cald. 531; Bright v. Taylor, 4 Smed. 159; Tapley v. Coffin, 12 Gray, 420; Yates v. Robertson, 80 Va. 475; Badger v. Gallaher, 113 Ill. 662; Ripley v. Bull, 19 Conn. 56; Hitchings v. VanBrunt, 38 N. Y. 335; Broodman v. Brown, 25 Iowa, 449; Mechem on Agency, 843.

      Mr. D. J. Schuyler, for the appellees:
    At common law an attorney has a retaining lien on the papers and documents of his client that come into his hands in the course of his professional employment, and such lien extends to the general balance due him from the client. Story on Agency, sec. 383; Wharton on Agency, sec. 623; Stokes on Attorney’s Liens, 1-5; 1 Jones on Liens, secs. 115, 119; Weeks on Attorneys, 607; Forsythe v. Beveridge, 52 Ill. 270; Wright v. Cobleigh, 21 N. H. 340; Dennett v. Cutts, 11 id. 163; Stephenson v. Blacklock, 1 M. & S. 535; St.John v. Diefendorf, 12 Wend. 260; Ex parte Sterling, 16 Ves. 258.
    There are two kinds of liens of attorneys treated of in the authorities, viz.; First, the retaining lien, or the right to retain possession of a client’s papers which have gone into the attorney’s hands in the course of his professional employment; and second, the charging lien, or the right to charge the client’s property which is not in the attorney’s possession, with the payment of the debt. Stokes on Attorney’s Liens, 1, 2; Story on Agency, sec. 383; Wharton on Agency, secs. 623, 625.
    The authorities cited by appellant’s counsel to show that attorneys have~no lien in Illinois, are all cases concerning the charging lien, and not of the retaining lien. There is a wide distinction to be observed between the retaining lien, which is the right to retain documents of the client in the attorney’s possession, and the charging lien, Which seeks to charge the fruits of the suit,—for instance, the judgment, or the real estate recovered, or other of the client’s property,—with the lien, and which lien does not at all depend upon possession by the attorney. The two liens are entirely different in origin, or grounds on which they are based, and in their nature, extent and mode of enforcement.
    Mr. H. B. Seelye, also for the appellees.
   Mr. Justice Wilkin

delivered the opinion of the Court:

The case of Walter L. Peck et al. v. Chicago and Great Western Railroad Land Co. et al. (a statement of which will be found in 112 Ill. 414-430,) having been reversed and remanded by this court, and pending in the circuit court of Cook county, a dispute arose between appellant and appellees, bis former attorneys, as to the fees of the latter, and out of that controversy grew the further one as to whether or not appellees were entitled to a lien upon the one hundred and ninety-five bonds of appellant involved in the Peck suit.

Appellant having discharged said attorneys, tendered them $175 in full of all fees due them, and demanded the surrender of the bonds, which being refused, he filed this petition for a rule on them to surrender and deliver up the same to him. Upon being ruled to show cause why they should not be required to do so, respondents set up a retaining lien for fees, which they claim were due and unpaid from petitioner, for services rendered by them in said cause, appellees Quick & Miller claiming $5000 for such services in the Appellate Court for the First District and the Supreme Court, and $500 for services after the reversal and before they were finally discharged. No special claim for fees was made by respondent Seelye, in the answer, but it was averred that he had rendered services in said cause in connection with said Quick & Miller. Before the master he presented an account for professional services performed for appellant, generally, aggregating $3650. The cause having been referred to the master to take and report the evidence, together with his conclusions, he made his first report, by which he found that there was due Quick & Miller $5500, and Seelye $2840, and also reported that they were entitled to a retaining lien upon the bonds for those amounts. On exceptions to this report, the circuit court held that Quick & Miller were only entitled to the sum of $300 for services in the Appellate Court, by the terms of an express agreement between themselves and Seelye on the one part, and appellant on the other; that in addition to that amount they were entitled to $600 for services performed after the reversal in the Supreme Court. It was also held upon that hearing, that, they were entitled to compensation for their services in the Supreme Court upon the quantum memit, there being no contract between the parties as to what should be paid therefor; and the cause was again referred to the master to take evidence, and ascertain the value of such services.

As to that part of the master’s report allowing Seelye $2840, no objection was made, because it was not claimed in the answer, but the objection then urged was, that the allowance was greater in amount than the evidence justified, and the court, upon consideration thereof, reduced it to $1205.

On the coming in of the master’s second report, by which he found the value of the services of Quick & Miller in the Supreme Court to be $5000, further exceptions were heard, and it was finally determined and ordered that Quick & Miller be allowed the sum $4950, and Seelye $1158.25, and that they each have a retaining lien upon said bonds until said amounts should be paid. Sanders having appealed, appellees filed cross-errors in the Appellate Court, by which they sought to question the correctness of the decree below, in not allowing them the full amounts reported by the master. The Appellate Court having affirmed the decree below, Sanders appeals to this court.

The cross-errors are not insisted upon here, and we have therefore only to consider the grounds of reversal insisted upon by appellant. Numerous errors are assigned on his behalf, each of which is made a point in the argument. Many of them are mere criticisms upon the opinion of the Appellate Court, and are in no proper sense assignments of error on the record.

We think the merits of the case may be fully and fairly considered under three heads, viz: First, has an attorney a retaining lien in this State, as a matter of law; second, are the facts essential to the existence of such a lien established by the proofs in this case; third, does the evidence justify the decree as to the amounts found due.

Attorney’s liens are classed as general (or retaining) liens, and charging (or special) liens. The first attaches to all papers, documents, etc., which he receives professionally; the second only upon that which is recovered through Ms professional services. This latter right of lien has been denied by this court in several eases. In Humphrey et al. v. Browning et al. 46 Ill. 476, it was held that he had no lien upon real estate recovered in ejectment; in Forsythe v. Beveridge, 52 Ill. 268, that he had no such lien upon a judgment recovered; and so in each of the other cases cited by counsel, it was held that no lien existed in his favor upon the subject matter of the suit. Although expressions are used in the opinions in some of these eases which seem to deny an attorney’s right to the retaining lien also, m none of them was that question before the court, nor was it decided. It is now therefore to be treated as an open question in this State.

That it is a well established common law right, must be conceded. Stephen v. Blacklock, 1 M. & S. 535; St. John v. Dufendorf, 12 Wend. 261; Bennett v. Cetts, 11 id. 163; Walker v. Sargeant, 14 Vt. 247; Ward v. Craig, 87 N. Y. 551. No reason is perceived for denying the existence of that right in this State. There is nothing in our statute which changes the common law relations between attorneys and their clients in such a manner as to affect this right, nor are we able to see wherein this rule of the common law is inapplicable to “the habits and conditions of our society, or contrary to the genius, spirit and objects of our institutions.” We therefore hold, that in a proper case an attorney in Illinois may legally maintain such a lien.

Passing to the next question, the authorities seem to be uniform in holding that this retaining lien exists on all papers or documents of the client placed in the attorney’s hands- in his professional character or in the course of his professional employment; (Stokes on Liens of Attorneys, p. 67; Weeks on Attorneys, sec. 372, p. 614; Wharton on Agency, sec. 625; Story on Agency, sec. 383;) and it makes no difference what the purpose may have been in placing them in the attorney’s hands. Weeks on Attorneys, sec. 372, supra; Wharton on Agency, sec. 625, note 1.

Did the bonds in question come into the possession of appellees within the meaning of these rules ?» It is insisted that they were left with Seelye merely for safe keeping, subject to appellant’s orders, and that their deposit with him had no connection with either his or Quick & Miller’s professional employment in the Peck case. This position is wholly inconsistent with the remedy appellant is now seeking to enforce. If Seelye was a mere custodian of these bonds for safe keeping, and held them only subject to appellant’s order, by what authority can the circuit court of Cook county, in the Peck case, make an order requiring respondents to show cause why they do not surrender them ? We think, however, that the evidence is clear, to the effect that they were placed in the hands of Seelye as the attorney of appellant in the Peck case, so that they might be used in securing to the client the benefits resulting to him from the successful litigation of that case in the Supreme Court; and whatever may have been appellant’s understanding as to the amount of fees to be paid, it can not be claimed that he did not fully understand that Quick & Miller and Seelye were acting together as his attorneys in that case. Therefore, whether the bonds were delivered to Seelye alone, or to him and Quick & Miller jointly, the lien would attach for the benefit of all. It is also clear, from the evidence, that appellant knew that these bonds had been deposited by Seelye in the safe of Quick & Miller, and that they claimed a lien upon them for their services; and with such knowledge he permitted them to remain in their possession, retaining them thereafter in the further management of said cause. We are of the opinion, therefore, that the circuit court was justified in holding that said bonds were subject to a lien in favor of appellees for any balance due and unpaid them for their fees as the attorneys of appellant.

That there was a balance of $500 due Quick & Miller is not controverted, and the exceptions filed to the master’s report allowing Seelye certain fees, must be held to amount to an admission that there was something, at least, due him. In the exception it is said he should only have been allowed $805, and it was admitted that of that amount but $475 had been paid, but it was attempted to charge him with $160, money and accrued interest furnished to pay taxes, for which it was claimed he had failed to account, thus leaving a balance of $270, and it was sought to liquidate this amount by a counterclaim of $500, for damages resulting from a failure to pay taxes for the appellant, of which there is no satisfactory proof whatever. But the principal question in determining whether fees were due and unpaid, is, whether or not the services performed were under a special contract, and therefore can be more satisfactorily considered under the third head.

The relative positions of the parties on this branch of the case may be thus stated: Appellant maintains that he made a special contract with appellees, by which he was to pay $500 if successful in the Supreme Court, and $300 if unsuccessful, which position can only be maintained by holding, that whatever services were performed in the Appellate Court were understood to be merely preliminary to a final decision in the Supreme Court, the fees to be paid in both being included in the one contract. Appellees insist that whatever special contract was made, was with reference to fees in the Appellate Court alone, and that they are entitled to a reasonable compensation for all other services,—and so the Supreme and Appellate Courts have held.

Appellant’s theory is based upon his letter to appellee Seelye, dated September 25, 1882, in which he says: “Tours 23d inst. was received this A. M. In reply I would say, that the terms on which you propose to have my interest represented and protected in Supreme Court on appeal, are not so favorable as I was led to anticipate, and I can not accede to them. * * * I will do this : I will pay for the printing necessary in the case, and I will pay attorney’s fees in addition to make the sum of $500 if successful, if not successful $300,—that is, the total shall not exceed $500 in case of success, and only $300 if not successful. * * * If the thing is a success I may feel different as to remuneration. I don’t want any one to work for me without fair compensation if the result is remunerative to me. My proposal relates to a reversal of the Supreme Court; as to other acts succeeding, different terms can be fixed.” The construction contended for by appellees, and sustained by the lower courts, makes the letter read as though the words “Appellate Court” had been used instead of “Supreme Court.” Seelye testifies that he understood the letter in that way, and we think, from all the evidence, the circuit court was justified in holding that Sanders so intended, notwithstanding the express mention of the Supreme Court therein. This, we think, is manifest from the correspondence between the parties, preceding and subsequent to the foregoing letter.

It is admitted that the Peck case, long prior, had been appealed by Sanders to the Supreme Court, and the appeal dismissed. Subsequently, Seelye, and Herbert, Quick & Miller, (the latter firm being the predecessors of the firm of Quick & Miller,) by correspondence with Sanders, had been negotiating with him for the privilege of withdrawing the record from the Supreme Court, for the purpose of prosecuting a writ of error on behalf of other parties. On the 28th day of September, 1881, Seelye informed Sanders, by letter, that-they had finally succeeded in getting the record, and asked, “Now what shall we do?” On October 8, 1881, Herbert, Quick & Miller wrote Seelye: “We now have the transcript in our possession to file in the Appellate Court. * * * On this a writ of error should be sued out immediately,” etc. On the same day Seelye inclosed that letter to Sanders, and wrote him: “Now that we have the record, it seems important that we move upon the enemy’s works with as little delay as possible.” Sanders had, at all times prior to this date, declined to be a party to the writ of error; but it is clear, from these letters, that he knew that it was to be sued out of the Appellate Court, and not the Supreme Court.

On the 14th day of August, 1882, appellant wrote Seelye, ■saying: “I write to inquire if anything was done in the Riverside case, looking to a review in the Supreme Cowrt.” September 14 following, Seelye replied: “The Riverside cases (our side of them) are nearly ready for the Appellate Court. * * * We are a little puzzled to know what to do with your interest. * * * No time is to be lost, as the court sits October 3. You know, generally, the steps taken. The •outlay of money is mostly made. Doubtless you can make a satisfactory arrangement with counsel engaged, to attend to your interest, with comparatively little pecuniary liability.” On the 16th of the same month Sanders replies, in which he says: “I received to-day your letter of the 14th inst., about my making an arrangement with counsel to attend to my interest in the forthcoming Riverside cases, on appeal, in your Supreme Court. I am somewhat in a quandary. It is whether I should make petition to the court to order the record returned, and set forth the facts according to which they were •obtained, as I have been solicited to do, or acquiesce in your suggestion, and engage counsel to represent me and attend to my interest before the court, on appeal.” And he insists, that in consideration of his having given the other parties the use of the record, his interest should be protected without charge. On the 21st of the same month he again writes Seelye, referring to the ease on appeal, saying: “Ton seem to think you can make favorable arrangements with counsel able to appear for me. Who is he, and what are the best terms you can make with him ?” On the 23d Seelye replied, making a proposition as to terms on which he would take the case, saying, “The counsel I have employed are Herbert, Quick & Miller.”' To this letter he asks for a reply by telegram, but on the 25th Sanders wrote the letter first above mentioned.

On the 28th, Herbert, Quick & Miller wrote a letter to S.eelye, in which they say: “We have considered your proposal in behalf of Mr. Sanders, that we represent his interest in the Appellate Court.” They go on to state what they expect to do, and say that they “do not expect to succeed without a desperate contest, first in the Appellate Cou/rt, second, in the Supreme Court, and then, if successful, again in the circuit court.” In this letter they decline the proposal by appellant. On the same day Seelye enclosed that letter to Sanders, saying, “I submitted your proposition to Messrs. Herbert, Quick & Miller, and have just received the enclosed.” On the 30th Sanders replies, concluding his letter with the statement, “I can not change my proposal, and if not accepted I will await and look on, abiding events.” October 3 Seelye again wrote hi in : “I received yours of the 30th ult., yesterday. I have felt that it was very important that your interests should be looked after by some one, and had engaged Mr. Herbert to appear for you when the case should be called to-day.” In this letter he speaks of going to the Appellate Court, of the case being called at the opening of court, and a motion to dismiss for want of jurisdiction, etc. October 9 he informs Sanders of the death of Mr. Herbert. October 17, that as Mr. Miller was familiar with the case he should go on with it ; and he expressly states, “The case now stands in the Appellate Court, on a motion to dismiss,” etc. October 26 he again informs him, “The Appellate Court this morning denied the motion to dismiss our Riverside case.” October 28 Sanders replies: “I have received yours bf the 26th inst., informing me that the Appellate Court denied the motion to dismiss appeal.”

This correspondence continued during the pendency of the case, and from it it would seem too clear for argument that appellant fully understood that the case was pending in the Appellate Cowrt, and not what he termed the Supreme Court; and it is equally clear that he understood, or at least that he was informed, that the negotiations with him as to fees were with reference to the Appellate Court, and not the Supreme Court. It may be, and probably is, true, that he did not fully understand our system of courts; but no one can read this correspondence and come to any other conclusion than that the parties intended the special contract between them to relate to services rendered in the court in which the case was then pending, and not to some other court of review to which it might be taken.

On the 27th of June, 1883, Seelye informed Sanders that the Appellate Court had affirmed the Riverside cases, and he again inquires, “Row what shall we do? The parties here want to take it up. It rests largely with you to decide. The expense will not be large. Our briefs are printed. We will have the record of the Appellate Court, and a printed abstract of it. We think we had better go in and fight it out.” To which he replies: “If the expense is not going to be great, I should be in favor of going up to the Supreme Court. I would like to have some idea what the expense will be. I do not wish to take another leap in the dark, as I did with McCagg. I am willing to sustain my fair proportion. * * * I think it would be unwise to stop here, after all that has been done, and the principal work performed.” July 21, 1883, appeal bonds were forwarded by Seelye, to be executed by Sanders, and in the letter accompanying them he states that the costs of the appeal will not exceed $500. There was no pretence that there was any contract for attorney’s fees in the Supreme Court, except as by the letter of September 25, 1882.

We have carefully examined all the evidence submitted in this case, and we are satisfied that, fairly construed, it justifies the construction placed upon the letter of September 25, 1882, by the circuit and Appellate courts, and that the compensation which the appellees were to receive for services in the Supreme Court was intentionally left, by the parties to be fixed by what should appear to be reasonable, in view of the services performed.

The evidence reported by the master, though somewhat conflicting, fully justified his report fixing that amount at $5000, for Quick & Miller. As to the amount allowed Seelye, the evidence is even more satisfactory, considering it as a whole. But it is insisted that the master in chancery and circuit court allowed him for services in the Appellate Court, whereas the entire' $300 which he and Quick & Miller were entitled to under the letter of September 25, had already been allowed Quick & Miller. In his account presented to the master, item 10 was for “services, counsel and disbursements in your behalf in suit of C. and G. W. R. R. Land Co. et al. v. W. L. Peck et al., in Appellate and Supreme Courts, $1000.” This item was allowed by the master in chancery. Item 6 was for $2000, which the master allowed for $1750. On these two items the court allowed but $1200, and it can not be said that any portion of that sum was necessarily allowed as fees in the Appellate Court.

While this case is not free from difficulty, we are satisfied that the merits are with appellees.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Bailey

text:
    Andrew J. Hoobler et al. v. Lydia A. Hoobler.

      Filed at Ottawa

      May 16, 1889.

    1. Tbial by juey—in chancery—issues agreed upon—conclusiveness. "Where the parties to a bill in chancery agree to the issues of fact to be submitted to the jury, neither of them will be permitted to allege that such issues were improper, either in form or substance.
    2. Same—instruction—whether substituting new issues. On bill to set aside a deed and a contract, on the ground of incapacity in the maker to transact business, and fraudulent and false representations, the court instructed-the jury, that if either of these grounds was sustained, the allegation of the bill that said instruments were wrongfully and improperly obtained was made out: Held, that this was in no sense a substitution of new issues, but an instruction properly informing the jury as to what facts must be found to entitle the complainant to a verdict upon the issues already submitted.
    3. Same—new trial-—verdict against the evidence. On bill to set aside a deed and contract made by a widow to an heir, on the ground that she, owing to old age, bodily infirmity, sickness and mental weakness, was incapable of transacting business, and that false representations were made by the grantee as to the condition and value of the estate and property released, the evidence was directly and sharply conflicting. The jury to whom the issues were submitted found in favor of the complainant, and their finding was approved by the trial court. 'The complainant’s evidence clearly supported the finding and decree, and the evidence for the defendant merely raised a conflict, but there was no such preponderance in the defendant’s favor as to show that the jury misconceived or misconstrued the evidence : Held, that in such a case the finding of the jury was conclusive in this court.
    4. Ebbob will not always beyebse—improper evidence. Where the subject matter of interrogatories to witnesses is proper, and calls for evid ence in the main pertinent to the issues raised by the pleadings and submitted to the jury, the fact that some of the questions may have been improper in form will not call for a reversal, when the answers, taken in connection with the entire evidence, have worked no injury to the other party.
    Appeal from the Circuit Court of Livingston county; the Hon. N. J. Pillsbuby, Judge, presiding.

      Messrs. Stbawn & Patton, for the appellants.
    Mr. H. H. McDowell, and Messrs. McIlddej? & Tobbanoe, for the appellee.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was a bill in chancery, brought by Lydia A. Hoobler against Andrew J. Hoobler and others, the children and grandchildren and heirs at law of John Hoobler, the complainant’s deceased husband. The bill prays for the cancellation of a quit-claim deed executed by the complainant, purporting to convey to Andrew J. Hoobler her interest in the real estate of her deceased husband, and for the recovery of her dower and homestead therein, and for the cancellation of a certain other instrument executed by the complainant, purporting to be an assignment and relinquishment by her to Andrew J. Hoobler, of her widow’s award and dower in the personal estate of her said husband, and for the recovery of said award, and of all her other property, rights and interests in said estate. Answers and replications were duly filed, and certain issues having been submitted to and tried by a jury and found for the complainant, a decree was entered in her favor in accordance with the prayer of her bill.

The complainant and John Hoobler were married about the year 1872, both being then somewhat advanced in years, and both having previously been married. They lived together on a place consisting of thirteen acres of land belonging to John Hoobler near Manville, Livingston county, until sometime in the year 1885, and then for some reason which the record does not explain, and which so far as this suit is concerned is immaterial, they ceased to live together, John Hoobler going then or sometime afterward to live with his son Frederick who was residing near him, and the complainant going to her daughter’s who was living near Muncie, in Vermilion county. After remaining with her daughter for. a few weeks, and visiting for a short time with other friends, the complainant took up her residence in a small house owned hy her in Muncie, where she lived until the death of her husband, which took place April 17, 1886.

John Hoobler, at the time of his death, was the owner of the thirteen acres of land already mentioned, worth about $1500, and which had been occupied by him for a considerable time as his homestead. He was also the owner of personal property, consisting almost entirely of promissory notes, of the value of $4000. The complainant was not present at her husband’s death, and was not notified and had no information of his last sickness or death until the sixty days during which she as widow was entitled to preference in the appointment of administrator had nearly expired. Having accidentally learned of his death, she caused the proper application to be filed for letters of administration to herself and one Avery, and letters were issued to them accordingly within the sixty days after the death of her husband.

The complainant was about seventy-one years of age at the time of her husband’s death, and was then in feeble health. The evidence tends to show that she had then recently suffered an attack of severe illness from which she had not recovered, and that at the time the letters of administration were issued, and at the time of the execution of the instruments which she now seeks to have cancelled, she was still suffering great weakness both of body and mind, consequent upon her illness.

On the 9th day of July, 1886, which was a few days after letters of administration were issued, Andrew J. Hoobler, accompanied by one David Gouty, a grandson of John Hoobler, went to see the complainant at her home in Muncie, Vermilion county. Before going, and before having any negotiations with the complainant in relation to a relinquishment by her of her interest in her husband’s estate, he caused a quit-claim deed conveying to him a.ll her interest in her husband’s lands, and another instrument assigning and transferring to him all her interest in his personal estate, to he drafted. These drafts he took with him. He went by rail, but instead of stopping off at Muneie, he went on to Danville and there met Gouty, and was driven back by him in a buggy to Muneie, Gouty claiming that he wished to go to a point several miles beyond Muneie to look for some hay which he intended to buy.

At the interview between Hoobler and the complainant at the' house of the latter, brought about as above indicated, Hoobler induced the complainant to execute both of the instruments above mentioned, and the evidence is undisputed that the only consideration given by him to her for said conveyance and assignment was the payment to her of $100 in money, and an agreement to pay her attorney for his services in the matter of suing out the letters of administration, the fees of said attorney, as was afterwards ascertained, being $15.

Andrew J. Hoobler seems to have been the member of the family of the complainant’s husband with whom the complainant was on the most friendly terms, and the evidence shows, without contradiction, that she reposed in him very considerable confidence. At the interview at which said papers were executed, there were present, in addition to the complainant and Hoobler, said Gouty, and Mollie Long, the complainant’s niece, who had been with her for several weeks taking care of her in her illness. The accounts of the interview given by the complainant and Mollie Long on the one hand, and by Hoobler and Gouty on the other, are essentially different. According to the account given by the complainant in her testimony—and she is corroborated in all essential particulars by the testimony of Mollie Long—Hoobler and Gouty came to-her house, giving her to understand at first that their errand there was to hunt for some hay, and asking her where she thought they could find some. After some conversation on that subject and other general topics, the complainant herself referred to the fact that she had taken out letters of administration on her husband’s estate. Hoobler told her in reply that he had heard of it and had come on purpose to settle it up; that his father on his death bed had said that he did not wish any litigation about his estate, and had charged him, Andrew J. Hoobler, to be sure and see to it that the complainant got her share of the estate. This latter direction from his father, Hoobler, according to the complainant’s version of the interview, repeated many times. She also testifies that during portions of the interview, while they were conversing in relation to the death of the complainant’s husband, both she and Hoobler were in tears.

She told him in explanation of her having taken out letters of administration, that her husband had been dead nearly two months before she knew of it; that her husband had asked her to write to him often, and that she had sent letters to him, but that they had not allowed her to hear from him, and that she thought it was about time something was done. Hoobler then expressed a doubt about her being able to get anything; that there seemed to be nothing which could be gotten hold of. She thereupon called his attention to the promissory notes her husband had at the time of their separation. He told her the notes had all been squandered, and repeated that statement over and over again, and said that whatever he paid her by way of settlement would have to come out of his own pocket. She then asked him what had become of the real property, and said she ought to have her share in that. That, he said, was so little that it would be of no benefit to her; that it would not rent for more than $30 a year, and that she would-be entitled to only one-third of that, which would be only $10 a year. She suggested that it might be sold, but he assured her that it could not be while she lived, and this opinion was echoed by Gouty. He also stated to her as an additional reason why she had better sign said papers that his brother Fred, had said that if she did not sign them and thus compromise the matter, he would law her as long as he had a cent to law with.

She testifies that she believed that Hoobler was her friend, and believed what he told her. After these various representations, Hoobler asked her to say what she was willing to take for a relinquishment of her interest in the estate. She replied that if it was to come out of his pocket she would take $100, and the papers were thereupon executed on those terms, with the addition that Hoobler also agreed to pay the complainant’s attorney, which he afterwards did.

According to Andrew J. Hoobler’s version of the interview, and he is in the main corroborated by the testimony of Gouty, nothing whatever was said about the notes having been squandered, but the complainant was told that the notes were all in existence and were at Hoobler’s brother Fred’s house where his father died; that he explained to her fully and truly the situation of the estate and the nature of her rights; that he also told her that his father, on his death bed, said to him that at the time of his marriage with the complainant, there was an agreement between him and the complainant that in the event of the death of either, the property of the one so dying should go to his or her children. The complainant on her part testifies that there was nothing whatever said in her conversation with Hoobler in relation to said alleged ante-nuptial contract.

The bill alleges, as the grounds for relief, that at the time said instruments were executed by which the complainant relinquished her interest in her husband’s estate, she was past seventy-one years of age, very infirm and broken down with disease, and unfitted and incapacitated for transacting business ; that Andrew J. Hoobler came to her and represented, in substance, that her husband’s estate was wholly insolvent, and that to persist' in the administration would only create costs, and that rather than have her involve herself in fruitless litigation, he would pay her $100 out of his own pocket for a release of her apparent interest in the estate; that she being too old and infirm to go to Livingston county to look after her interests and find out the truth in relation to the estate, and relying upon the representations so made in apparent good faith by said Hoobler, accepted his offer of $100 and executed said papers, said Hoobler well knowing at the time that his statements and representations were false, and that said estate was in fact solvent and worth at least $6000, and that the complainant was entitled to her homestead, her dower and her widow’s award, worth in all at least $2000. The bill further alleges, that, at the time of the execution of said papers, she was almost wholly prostrated from disease, and was sick and infirm and incapable of transacting said business, and that said Hoobler at the time knew that she was sick and infirm and incapable of understanding and comprehending the nature of the transaction, and that said Hoobler sought said time and opportunity to influence the complainant by sophistry and money, and that it was under these circumstances and these influences the complainant signed said deed and assignment and accepted said $100 therefor.

It will be seen that the evidence in relation to the charges of fraud made by the bill is directly and sharply conflicting. The jury, before whom the witnesses appeared and testified, found that said charges were sustained, and their finding has been approved by the chancellor who rendered the decree, and we can not, from anything apparent to us from the record, say that the evidence has been misconceived or misconstrued, or that there is any such preponderance against the verdict of the jury or the decree of'the court as would warrant us in setting the decree aside and ordering a rehearing. The evidence of the complainant clearly supports the decree, and the evidence for the defense merely raises a conflict, but it is a conflict where there is no such preponderance as should take the ease out of the ordinary rule, that where the jury and chancellor see and hear the witnesses, their finding upon questions of fact where the evidence is merely conflicting is conclusive.

Complaint is made of the form in which the issues were made up and submitted to the jury. The issues, as submitted, were as follows:

1. “Was the deed from complainant to Andrew J. Hoobler improperly and wrongfully obtained from her, as is alleged in the bill ?

2. “Was the agreement named in said deed as being made by complainant to said Andrew J. Hoobler, improperly or wrongfully obtained from her, as alleged in said bill of complaint ?”

While it is manifest that these issues were not so formed as to clearly present the questions of fact which should have been submitted to the jury, it is sufficient for the purposes of this appeal to say, that it affirmatively appears from the record that the issues as submitted were agreed to by the parties. After entering into such agreement, the appellants will not be permitted to allege that the issues were improper, either in form or substance.

Complaint is made of the first instruction given to the jury at the instance of the complainant, which was as follows:

“The court instructs you that there are two allegations in the bill, either of which, if true, would authorize you to find the issues presented to you for complainant. First:—Was the complainant in such condition mentally at the time of signing the deed and contract in evidence as not to understand the nature and result of the act she was performing ? Second:—■ If she did understand the nature and result of her acts, did Andrew J. Hoobler falsely and fraudulently represent the condition of her husband’s estate to her at the time, as alleged in the bill, and did she thereby, relying on such statements, sign such deed and contract, when she would not have done so had she known the true condition of such estate ? If you find that she did not understand the nature of her act when signing the deed and contract in evidence, because of her mental condition, then you should find both of the issues submitted to you in the affirmative. If you find that she did understand the nature and result of her act when signing the deed and contract in evidence, but find she signed the same because of false representations made to her by Andrew J. Hoobler, as alleged in the bill, then you should find both of the issues submitted to you in the affirmative.”

The criticism upon this instruction is, that it submits to the jury issues different from those which they were impannelled to try. This is clearly a misapprehension. It merely calls the attention of the jury to each of the two substantive grounds of relief set up in the bill and upon which it is claimed that the instruments which the bill seeks to have cancelled were improperly and wrongfully obtained. It then instructs the jury that if either of these grounds is sustained, the allegation of the bill that said instruments were improperly and wrongfully obtained is made out, and that in such case the verdict of the jury should be for the complainant on both issues. This was in no sense a substitution of new issues, but an instruction properly informing the jury as to what facts must be found to ■entitle the complainant to a verdict upon the issues already submitted. An instruction the precise counterpart of the foregoing was given on the part of the defendants, which, after reciting literally the issues submitted to the jury, proceeds as follows:

“And under said issues so submitted, before Mrs. Hoobler •can recover, she must prove, either that she was incapable of transacting ordinary business at the time she executed the deed and agreement or release as explained in other instructions, or that she was procured to execute the deed and release by false and fraudulent representations as explained in other instructions, or that she was procured to execute the deed and release under undue influence, as explained in other instructions.”

Complaint is made of various other rulings of the court in giving and refusing instructions to the jury. We could not, without unreasonably prolonging this opinion, discuss each of the several instructions criticised but are disposed to content ourselves with saying that we have carefully considered each of the points made, and are of the opinion that none of them are well taken. The law was given to the jury with substantial accuracy, and there was no material error in the rulings of the court in that respect.

Various exceptions were also taken to decisions of the court overruling objections to interrogatories put by the complainant to her witnesses. These interrogatories called for answers relating to the physical and especially the mental condition of the complainant at and about the time she executed the instruments in question, to her being of weak mind and easily influenced, and to her capability of transacting business and of understanding the nature and consequences of the business she was engaged in at the time she executed said instruments. It can not be doubted that in the main the subject matter of these interrogatories was proper, and called for evidence pertinent to the issues raised by the pleadings and submitted to the jury. Some of the questions objected to were probably improper in form if not in substance, but when taken in connection with the answers elicited and the entire scope of the evidence, we are of the opinion that no error was committed in that respect of a nature so serious as to require a reversal of the decree.

As we find no material error in the record, the decree will be affirmed.

Decree affirmed.


author: Mr. Justice Magruder

text:
    The Chicago and Northwestern Railway Company et al. v. Mary A. Snyder, Admx.

      Filed at Ottawa

      May 16, 1889.

    1. Practice—directing what the verdict shall he. If there is evidence on the part of the plaintiff tending to prove the issues involved, it is not proper to take the case from the jury by an instruction to find for the defendant. ”
    2. Where a right of action fairly depends upon the effect or weight of testimony, the case is one for the consideration and determination t of the jury, under proper directions as to the principles of law involved. It should never be withdrawn from them unless the testimony be of such a conclusive character as to compel the court, in the exercise of . a sound judicial discretion, to set aside a verdict returned in opposition to it.
    3. Fellow-servants—question of fact for the jury. In an action against a railway company, to recover for the death of a conductor on the defendant’s road, caused by the negligence of another servant in charge of a semaphore, the defendant asked, and the court gave, an instruction embodying the rule as to the liability of a master to one servant for an injury caused by the negligence of a fellow-servant, which was numbered. 1. The defendant asked the court to submit this question : “At the time of the accident causing S.’s death, did the usual duties of S., and T., the semaphore attendant, bring them habitually together, so that they could exercise a mutual influence upon each other promotive of proper caution?” The court submitted the same, with this addition: “So as to make them co-employes in the same line of employment, as explained in defendant’s instruction No. 1 Held, no error in the modification of the question, as it did not require the jury to pass upon the law.
    4. Verdict—general verdict, and special findings—whether inconsistent. A special finding of a jury that the employes of one of the defendant railways, in charge of its train when it crossed the track of another road, were not guilty of negligence that materially contributed to the injury, is not inconsistent with a general verdict finding both the defendants guilty of negligence contributing to the injury, where the negligence charged and proved was, that the agent of both companies defendant failed to properly manage the semaphore and so signal as to prevent a collision, such agent not being an employe having charge of the train.

      5. Instruction—as to a question of fact. Where there is proof, in an action against two railway companies, that an agent, guilty of negligence, was employed and paid by both companies, and operated a semaphore or signal in the interest or service of both companies, it is proper to refuse an instruction that such agent was not the agent of one of the companies, but was that of the other company.
    Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook -county; the Hon. John P. Altgeld, Judge, presiding.
    Mr. William C. G-oudy, for the appellant the Chicago and Northwestern Railway Company:
    When the whole evidence is so insufficient to support a verdict that the court would not permit one to stand, it is the duty of the court to instruct the jury, as matter of law, to find for the defendant, or to exclude all the plaintiff’s evidence. Phillips v. Dickerson, 85 Ill. 15; Reed v. Deerfield, 8 Allen, 524; Simmons v. Railroad Co. 110 Ill. 346; Pleasants v. Faut, 22 Wall. 120; Randall v. Railroad Co. 109 U. S. 478; Skellenger v. Railway Co. 61 Iowa, 714; Martin v. Chambers, 84 Ill. 579; Frazer v. Howe, 106 id. 573; City of Mattoon v. Fallin, 113 id. 249; Railroad Co. v. O’Conner, 115 id. 261; Bartelotte v. International Bank, 119 id. 369.
    The plaintiff could not recover because Snyder and Torrence were fellow-servants. This court has held that it is a question •of law as to what constitutes fellow-servants, and that the jury are to find the facts from which the court may determine that question. Railway Co. v. Moranda, 108 Ill. 576; Railroad Co. v. Morgenstern, 106 id. 216.
    Mr. E. Walker, for the appellant the Chicago, Milwaukee and. St. Paul Railway Company.
    Mr. Mason B. Loomis, for the appellee.
   Mr. Justice Magruder

delivered the opinion of the Court:

This case is now before us for the second time. The first decision of it is reported as C. & N. W. Ry. Co. et al. v. Snyder, Admx. 117 Ill. 376. The second trial in the court below has again resulted in a verdict and judgment in favor of the plaintiff, and in an affirmance of such judgment by the Appellate Court.

The action is brought against the Chicago and Northwestern Bailway Company, and the Chicago, Milwaukee and St. Paul Bailway Company to recover damages for the death of John H. Snyder resulting from the collision of a train of the former •company with a train of the latter company at a point -where the tracks of the two companies crossed each other. The facts are settled by the judgment of the Appellate Court.

The first error assigned is the refusal of the trial court to instruct the jury to find for the defendants. There was evidence on the part of the.plaintiff tending to prove the issues involved, and, therefore, it would have been improper to take the ease from the jury. The first question to be determined was, -whether Snyder, who was the conductor of a train on the Northwestern road travelling eastward, was exercising ordinary care in the management of his train when the accident occurred. The plaintiff introduced testimony tending to show, that the deceased stopped his train, before coming to the crossing, at the distance therefrom required by the statute and the rules of the company, and that he kept a proper look-out for the customary signals. Defendants introduced testimony tending to show, that he did not stop at the proper stopping-place, and did not keep the requisite look out. These were matters for the jury to decide.

The next question to be determined was, whether Torrence, who was in charge of the Semaphore as the paid agent and employee of loth of the defendant companies, was guilty of negligence in failing to give Snyder such a signal, as it was necessary for him to have, in order to move his train safely over the crossing. When the semaphore was so managed as to throw a green light upon the track, a waiting train had the right to advance, while the red light on the track was a signal to such a train not to move. The plaintiff introduced evidence tending to show, that Torrence threw-the wrong light at the wrong time, so as to induce Snyder to go forward when he should have remained stationary, and that this careless management of the signal on the part of Torrence was the cause of the collision. The defendants offered testimony for the purpose of negativing this theory. It was the province of the jury to pass upon the question.

The Supreme Court of the United States holds as follows: “Where a cause fairly depends upon the effect or weight of testimony, it is one for the consideration and determination of the jury, under proper directions as to the principles of law involved. It should never be withdrawn from them, unless the testimony be of such a conclusive character as to compel the court, in the exercise of a sound judicial discretion, to set aside a verdict returned in opposition to it.” (Phoenix Ins. Co. v. Doster, 106 U. S. 30; Randall v. B. & O. R. R. Co. 109 id. 478; Goodlett v. Louisville R. R. 122 id. 391; Kane v. Northern Central R’lw’y Co. 128 id. 91). In Blanchard v. L. S. & M. S. R’y Co. 126 Ill. 416, this court sustained the trial court in instructing the jury to find for the defendant, because the testimony on the part of the plaintiff in that case was of the conclusive character mentioned in the above quotation, it having been made to appear, that, when plaintiff’s intestate was killed, he was walking along upon the railroad track at a place where there was no regular crossing—an act, which had already been held to be proof of the Want of that ordinary care, always necessary to be shown, in order to secure a recovery in an action of this kind. No such failure to establish a cause of action is presented by the record now before us. (Chicago West Division Ry. Co. v. Mills, 105 Ill. 63.)

The jury found specially, in answer to a question prepared by one of the defendants, that the employees of the 0. M. & St.P. By. Co., who were in charge of the latter company’s train when it crossed the track of the C. & N. W. By. Co. were not guilty of “negligence that materially contributed to the injury complained of.” This finding is not inconsistent with the general verdict. By the latter, the defendants were found guilty by reason of the negligence of Torrence, who was in the joint employment of the two companies, in failing to properly manage the semaphore. Torrence was not upon either of the trains which collided. He was in the signal station, which was ninety feet west of the crossing where the collision took place. He may have been guilty of negligence, - and yet those, who were in charge of the train crossing the tracks, may have been entirely innocent of any want of care.

We can not stop to comment upon all the special findings in this record. After a careful examination of them we see no such inconsistency in them with the general verdict, as would justify us in again reversing this cause. We can but repeat the language heretofore made use of in C. & A. R. R. Co. v. Murray, 71 id. 601: “We have no doubt the deliberations of the jury are, in many cases, embarrassed by voluminous instructions, drawn by ingenious counsel, calling for special findings, and the practice ought not to be encouraged.”

The second instruction, shown by the present record to have been given for the plaintiff, is the same as the third instruction commented upon in our former opinion in C. & N. W. Ry. Co. et al. v. Snyder, supra. The defect in it, which we there held to be fatal, was obviated by a proper correction before it was given upon the second trial. As it now reads, it submits to the jury the question, whether those engaged with Snyder in the management of his train, as well as Snyder himself, were exercising due care when the accident happened. The only objections now made to the instruction are those, which we held to be insufficient, when the case was here before.

The trial court refused to give an instruction asked by the defendant, the C. M. & St. P. By. Co., which holds substan- • tially that, under the circumstances attending the collision of the trains, Torrence was the agent only of the G. & N. W. By. Co., and not of the other defendant. There was proof tending to show, that he was employed by both companies, paid by both companies, and operated the semaphore in the interest of both companies. The tracks of the Northwestern road ran east and west, and those of the St. Paul road crossed them running from the northwest to the southeast. Just before the collision took place, there was a train on the N. W. road, east of the semaphore and bound for the west; there was a train on the St. P. road, also east of the semaphore and bound for the northwest; there was still-another train west of the semaphore, and bound for the east; it was this latter train, of which the deceased was the conductor. The testimony tended to prove that, at the time of the accident, Torrence was engaged in directing the movements of all three of these trains by the turning of the semaphore. If the jury should find that he was so engaged, they would find that he was in the service of both defendants when Snyder was killed. To have given an instruction, which would have led them to believe that he was the servant of one defendant only at that time, would not have been based upon the evidence, and, therefore, the refusal to give it was not erroneous.

At the request of the defendant, the C. & N. W. Ry. Co., the court below gave the jury an instruction embodying the rule, heretofore laid down by this court, which requires, “that the servants of the same master, to be co-employees so as to exempt the master from liability on account of injuries sustained by one resulting from the negligence of the other, shall be directly co-operating with each 'other in a particular business in the same line of employment, or that their usual duties shall bring them habitually together, so that they may exercise a mutual influence upon each other promotive of proper caution.” (Rolling Mill Co. v. Johnson, 114 Ill. 57, and C. & N. W. Ry. Co. et al. v. Snyder, supra). The instruction so given is marked defendant’s instruction No. 1. The jury returned a negative answer to the following question: “At the time of the accident, causing Snyder’s death, did the usual duties of said Snyder and Torrence, the semaphore attendant, bring them habitually together so that they could exercise a mutual influence upon each other promotive of proper caution, so as to make them co-employees in the same line of employment, as explained in defendant’s instruction No. 1 ?”

The question as originally drawn by defendant’s counsel did not contain the last clause, which is in italics. The italicized clause was added to the question by the court, and such modification of the question by the court is complained of as error. We cannot see that the defendant company was prejudiced by thus referring the jury to its own instruction prepared by its own counsel. They were not required by the modification to pass upon the law. They were merely told to answer the question of fact, propounded to them, in accordance with the principles of law laid down in the instruction.

We find no error in the record. The judgment of the Appellate Court is affirmed.

Judgment affirmed.