enced, had the privilege of refusing to go out on the car with him and to insist that plaintiff in error furnish him with a competent motorman, in accordance with his legal duty in that respect. We see no escape from the conclusion that defendant in error must be held to have assumed the risk of injury that might occur through the incompetency of Johnson when he voluntarily, with full knowledge of the facts, continued on the car with him. have been established by the judgment of knowing he was incompetent and inexperithe Appellate Court according to the contention of defendant in error. As to the competency of Johnson as a motorman, the evidence is sufficiently conflicting to require the submission of that question to the jury; therefore it must be regarded in this court as an established fact that he was incompetent. Assuming the incompetency of Johnson as an established fact in the case, and that plaintiff in error knew or by the exercise of reasonable care might have known of .such incompetency, is defendant in error, as [5] Again, Johnson and defendant in era matter of law, entitled to recover, in view ror, while engaged in the joint running of of the other undisputed facts in the record? this car, one as conductor and the other as [2] The master is not an insurer of the motorman, were unquestionably fellow servcompetency of his servants. The duty is im- ants. As a general proposition, defendant in posed upon him to exercise ordinary care in error concedes that in his capacity as motorthe selection of his servants and to employ man Johnson was his fellow servent, but it such as are fairly skillful and competent, in is argued that, Johnson being a vice princiorder that other employés may not be en- pal and having the authority to control and dangered by the misconduct of persons not command defendant in error, the order given possessed of such reasonable qualifications. to defendant in error by Johnson to make Barrows on Negligence, § 38, and cases there up his trip sheet and bring it out to the cited. If the master fails in the performance front vestibule of the car was a concurring of this duty and an injury results to a co-proximate cause of the injury, and the rule employé in consequence of the negligence or is invoked that the master is not exempt incompetency of such servant, it may be said from liability where the injury results from generally that the master is liable. Chicago the negligence of the vice principal as such, & Northwestern Railway Co. v. Swett, 45 Ill. in combination with the negligence of such 197, 92 Am. Dec. 206. vice principal in the capacity of a fellow servant; and the cases of Norton Bros. v. Nadebok, 190 Ill. 595, 60 N. E. 843, 54 L. R. A. 842, and Roebling Construction Co. v. Thompson, 229 Ill. 42, 82 N. E. 196, are relied on as establishing the rule contended for. The cases referred to fully sustain the rule. In the Nadebok Case the vice principal had commanded the servant to put his hand into a machine and take out a "catch,” and while the servant's hand was in the machine, and was known to be there by the vice principal, he by his own act started the machinery, which resulted in an injury to the servant's hand. In that case the vice principal, Banning, had authority to command and it was the duty of the injured servant to obey. He ordered the servant to [3] The danger arising from the incompetency of fellow servants is not one of the ordinary and usual hazards which a servant assumes by his contract of hiring. United States Rolling Stock Co. v. Wilder, 116 Ill. 100, 5 N. E. 92; Consolidated Coal Co. v. Haenni, 146 Ill. 614, 35 N. E. 162. While the master's negligence in the employment of incompetent servants is not ordinarily one of the usual risks of the employment which the servant assumes by his contract of hiring, still, where the servant continues to work with such incompetent servants after he becomes aware of their incompetency, any injury resulting to him through the negligence or unskillfulness of such incompetent servants is an injury arising from an assumed danger, for which the master is not lia-put his hand into a dangerous place. In givble. Klofski v. Railroad Supply Co., 235 Ill. 146, 85 N. E. 274. [4] Assuming Johnson to be incompetent as a motorman, the evidence of defendant in error conclusively shows that he knew as much about his qualifications as any one else. He admits in his testimony that he knew Johnson was not an experienced motorman and says that he protested against his taking the car out before it left the barns. In addition to this, he shows by his testimony that he was entirely familiar with the duties that Johnson was in the habit of performing about the car barns. He had been running in and out of the barns a sufficient length of time to give him a full opportunity to know what Johnson's qualifications were. When Johnson proposed to take charge of ing this command he was a vice principal and represented the master but in starting the machine it was contended that he was a fellow servant, but it was held that the injury having resulted from the negligent command given as vice principal, in conjunction with his negligent act in starting the machine, the master could not escape liability on the ground that the starting of the machine was the act of a fellow servant, and the same doctrine has been reaffirmed in numerous other cases. Slack v. Harris, 200 Ill. 96, 65 N. E. 669; Chicago & Eastern Illinois Railroad Co. v. Driscoll, 207 Ill. 9, 69 N. E. 620; Consolidated Coal Co. v. Fleischbein, 207 Ill. 593, 69 N. E. 963; Illinois Southern Railway Co. v. Marshall, 210 Ill. 562, 71 N. E. 597, 66 L. R. A. 297. In the son, supra, the facts were as follows: An the assumption of a risk which was incident elevator was being used for hoisting con- to and a part of the servant's regular work crete to the fifth floor of a building. The and which he must be held to have contemconcrete was loaded in wheelbarrows and plated and assumed when he engaged in the · rolled toward the elevator and hoisted by service. Wilson v. Tremont & Suffolk Mills, steam to the fifth floor. The loaded wheel- 159 Mass. 154, 34 N. E. 90; Swiercz v. Illbarrows were then rolled off the elevator inois Steel Co., 231 Ill. 456, 83 N. E. 168. If and dumped and the empty barrows returned it be conceded that Johnson, as foreman, had to the elevator to be taken down and re- the authority to request or command the deloaded. The elevator was operated on its fendant in error to go into the car, make up down trips by signal given by means of a his trip sheet, and bring the same and the bell rope from the fifth floor, which was con- money to him on the front vestibule of the nected with a bell in the basement. A num- car, and that it was the duty of the defendber of empty wheelbarrows had accumulat- ant in error to obey this request, still there ed on the fifth floor, in front of the elevator, is wanting that element of danger in obeywhen Morrison, the foreman, ordered the ing this command necessary to give it the injured servant and another to "double up" character of a negligent order. It is well the barrows; that is, to place two or more known that conductors upon street cars, as tiers of wheelbarrows on the floor of the ele- well as passengers, frequently stand upon vator. This was not the usual way of send- the platforms or vestibules of cars, and it ing the barrows down. The injured servant has never been held, so far as we are adviswas peremptorily ordered by the foreman to ed, that it is negligence either in the emthus load the elevator with the empty wheel-ployés or passengers to be or stand upon the barrows. In doing so he placed one foot vestibule of a moving car. The ordinary and on the elevator and the other on the floor. usual duties of a conductor of a street car While he was in this position the foreman | require him to frequently be upon the vestipulled the cord and gave the signal for the elevator to go down, without giving the servant any notice that the elevator was about to be lowered. It was not the duty of the foreman to give the signal to lower the elevator. That service was ordinarily performed by a boy, but on the occasion of the accident Morrison, the foreman, pulled the bell cord. The contention there was that Morrison, in pulling the bell cord, was a fellow servant, but it was held that in view of the negligent order which he had given to double up the barrows, which made it necessary for Thompson to place one foot upon the elevator, the fellow-servant rule had no application to the case. bule of the car in his charge. It would be going much farther than this court has ever gone to hold that it is negligence in a conductor of a street car to go to the front or rear vestibule of the car in the discharge of his usual duties. If defendant in error of his own initiative had made up his trip sheet and gone to the front vestibule to deliver it to Johnson in the discharge of his duty and preparatory to leaving the car for the night, could it be said, either as a matter of fact or of law, that he was guilty of such contributory negligence that he could not recover for an injury if he had been thrown from the car by reason of a defective track or some other act of negligence for which the It will be noted that in all of the above plaintiff in error was responsible? Such cases there was an element of danger con- conclusion, it seems to us, could not be susnected with the carrying out of the order detained. If under these circumstances delivered which the vice principal ought to fendant in error would not be guilty of conhave foreseen, and it is this element of dan-tributory negligence, then how can it be ger connected with obedience to the com- said that the order of Johnson to do the mand that gives the order its negligent character. [6] A servant is presumed to accept responsibility for an injury which is caused by one of the ordinary and usual risks of the employment, and negligence cannot be predicated upon an order which merely exposes him to such a risk. Labatt on Master and Servant, § 437. In other words, an order by the master to the servant to do some act or perform some service which was included within the general scope of his duties under his contract of hiring could not ordinarily be regarded as a negligent order which would absolve the servant from the assumption of the ordinary and usual risks incident to the execution of the order given. The mere circumstance that an order is given in such case does not conceal dangers that were open thing which he might properly have done without such order was a negligent order? The injury here cannot therefore be said to be the result of a negligent order of the vice principal in combination with his negligence as a fellow servant. There was no negligent order in this case with which the negligence of Johnson, as fellow servant, could combine to produce the injury. This case cannot be controlled by the rule laid down in the Nadebok and Thompson Cases, supra. Our conclusion upon the whole case is that the court erred in not directing a verdict in favor of plaintiff in error: First, because the evidence shows that the defendant in error knew, before the injury, of the inexperience and incompetency of Johnson as a motorman and voluntarily elected to go out on the car with him; second, Johnson and der both branches of the rule, at the time of and appellant. The bill alleges appellant the injury, which resulted proximately from the negligence of Johnson in not properly running the car. The judgments of the superior court of Cook county and of the Appellate Court for the First District are reversed and the cause remanded to the superior court of Cook county. Reversed and remanded. (260 I11. 64) ELLIOTT v. PRATER et al. (Supreme Court of Illinois. Oct. 28, 1913.) 1. HUSBAND AND WIFE ( 492*)-GIFTS FROM HUSBAND TO WIFE-PRESUMPTION. Where a father had given to a son a bond for the conveyance of land, upon condition of his making certain payments, and thereafter, without the payments having been made, but after valuable improvements had been constructed by the son upon the premises, deeded the land to the son's wife, it may be presumed that the deed was made to the wife by the direction or with the consent of the son. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 249-255; Dec. Dig. § 4912.*] 2. HUSBAND AND WIFE (8 492*)-GIFTS FROM HUSBAND TO WIFE-PRESUMPTION. In such a case, on account of the relationship, it will be presumed, in the absence of facts and circumstances showing the contrary, that it was the intention of the husband to make a gift of the property to his wife. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 249-255; Dec. Dig. § 492.*] 3. HUSBAND AND WIFE (§ 492*)-GIFTS FROM HUSBAND TO WIFE-PRESUMPTIONS. Where it appears that after a deed to a wife was given the husband continued to control and manage the property, that he improved it, and paid the taxes, and appropriated the rents to his own use, and that the wife on several occasions stated that she did not own the land, but held it in trust for her husband, the presumption of gift arising from the relationship is rebutted, and the beneficial interest in the land belongs to the husband. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 249-255; Dec. Dig. 492.*] Appeal from Circuit Court, Christian County; A. M. Rose, Judge. Suit by Gertrude Elliott against Goodie J. Prater and others for partition. Decree for defendants, and complainant appeals. Af firmed. W. B. McBride, of Taylorville, for appellant. Taylor & Taylor, of Taylorville, for appellees. became the daughter of Anna P. Goodrich and her husband by adoption by order and decree of the county court of Christian county in 1891, in a proceeding by said Anna P. and Charles F. Goodrich for the adoption of appellant. The bill alleges that upon the death of Anna P. Goodrich the other two children and appellant each inherited an undivided one-third of the premises, subject to the right of the surviving husband; that in March, 1907, William A. Goodrich died testate, and by his will devised all his interest in said lands to his father, who died testate May 21, 1909, and by his will devised all interest he owned in the premises sought to be partitioned to Goodie J. Prater, subject to the life estate of his widow, he having married again after the death of Anna P. Goodrich. The bill alleges appellant is still the owner of the undivided one-third interest inherited from her adoptive mother, and that Goodie J. Prater is now the owner of the undivided two-thirds of said premises, and prays for partition and an accounting for rents and profits. The answer of defendants was also in the nature of a cross-bill, and was so considered and treated by court and counsel at the hearing. Defendants denied that Anna P. Goodrich was the owner, at the time of her death, of the land sought to be partitioned, or that she had any interest therein, except that she held the naked legal title in trust for Charles F. Goodrich, who was the equitable owner thereof. They also denied that appellant was the adopted daughter of Anna P. and Charles F. Goodrich, and aver that the proceedings in the county court set up and relied upon by appellant to establish her claim of adoption were void and of no effect, for the reason that the county court had no jurisdiction to enter said order and decree. It appears from the averments of the answer that after the death of Anua P. Goodrich the son, William A., and the daughter, Goodie J. Prater, made convey ances of all their interest in the 120 acres of land to their father, Charles F. Goodrich, and he conveyed to them each 60 acres, in severalty, of said premises, subject to a life estate in himself. The conveyances of the son and daughter to their father are alleged to have been made for the purpose of quieting the grantee's title by vesting in him the legal as well as the equitable title. By the will of William A. Goodrich, who died before his father, he devised his lands to his father, and the father devised them upon his death to the daughter, Goodie J. Prater, who claims she thereby became the owner in fee simple of the whole of said 120 acres of land. The answer avers that the appellant, never having been adopted by the Goodriches, took no interest in the land upon the death of Anna P. Goodrich. FARMER, J. Appellant, Gertrude Elliott, filed her bill in the circuit court of Christian county for the partition of 120 acres of land therein described. The bill alleges the land was owned in fee by Anna P. Goodrich, who died intestate December 24, 1905, leaving surviving her a husband, Charles F. Goodrich, and as her children and only heirs at prayed some affirmative relief, it was treatlaw William A. Goodrich, Goodie J. Prater, ed as a cross-bill, and as such was answered by appellant. Her answer denies that Anna P. Goodrich held the title to the land as trustee for her husband, and alleges that Goodie J. Prater and the widow of Charles F. Goodrich are estopped from denying the validity of the adoption proceedings, and from asserting that Anna P. Goodrich held the title to the land in trust for her husband. The cause was heard before the chancellor, and he found that Goodie J. Prater is the sole owner in fee simple, of the premises sought to be partitioned, subject to the rights of Anna M. Goodrich, the widow of Charles F. Goodrich, in a portion thereof, and declaring that appellant, Gertrude Elliott, had no right, title, or interest to or in said premises or any portion thereof, and dismissing the bill at her cost. She has prosecuted this appeal from that decree. [1, 2] The first question to be determined is whether Anna P. Goodrich was the owner of the land at the time of her death, or whether she was a trustee, holding the title in trust for her husband. There is no controversy in the testimony as to how the title was acquired. In 1888, and prior thereto, the father of Charles F. Goodrich owned a farm of 240 acres in Christian county, of which the 120 acres in controversy were a part. In the year 1888 he entered into an agreement with Charles F. to convey to him the premises sought to be partitioned for $40 per acre. At the same time he entered into a similar agreement with another son to convey to him the other 120 acres of the farm. No cash payment was payment was made by Charles F., and no deed was made; but a bond or other writing was given him, and he was at once given possession of the land. Part of the agreement between him and his father was that the father would accept corn at 30 cents per bushel in payment of interest. There were no buildings on the land, and Charles F., with money he received from the sale of a piece of town property, and $1,000 realized on an insurance policy, erected a dwelling and other buildings on the premises, and occupied them until after the death of his first wife, Anna P. Goodrich. Before her death, with his own money, a part of which, at least, was inherited from his father, he repaired and enlarged the dwelling, making it an 11-room, two-story building, with attic. He also made other improvements on the premises. There is no proof that he ever paid his father anything for the land except four years' interest. In 1889 the father, then being old and feeble, concluded to make conveyances of the land. The other son had traded his 120 acres to his father for land in Kansas, and the father made a deed to him for the Kansas land. He made a deed for the land he had contracted to Charles F. to the latter's wife, Anna P. Goodrich. She never paid anything whatever for the land or the improvements placed upon it, or the taxes, and nev managed and controlled by her husband, who improved it, paid the taxes thereon, appropriated the rents and income therefrom, and disposed of the same as he saw fit. Mrs. John B. Jones, a sister of Anna P. Goodrich, testified she visited Mrs. Goodrich in 1900 or 1901, and that Mrs. Goodrich told her she did not own the land-that the title was placed in her name by her father-in-law to hold in trust for her husband. Goodie J. Prater testified she came from her home in Kansas, and visited with her mother for about six weeks, not a great while before her mother's death; that she spoke to her mother once about making a will and disposing of the land, but Mrs. Goodrich said she did not feel she had a right to do so, that the land was her husband's, that it came to him from his father. [3] While there is no direct evidence upon the subject, we must assume or infer from the facts proven that the deed was made to Mrs. Goodrich by the direction, or at least with the consent, of her husband, and on account of their relationship the presumption arises that the conveyance was made to the wife as a gift or advancement by the husband. This presumption is not conclusive, but may be rebutted by facts and circumstances showing that it was not the intention of the parties at the time that the conveyance should be considered as a gift or advancement. Cases of like character as the case at bar and similar in their principal facts have often been before this court. A résumé of the decisions in former cases will be found in the late case of Bachseits v. Leichtweis, 256 Ill. 357, 100 N. E. 197, where it was said: "The law is well settled that, where property is purchased and paid for with the money of one person, and the title to the property so purchased and paid for is taken in the name of another person, as between parties who are strangers to each other, the law will presume, from those facts alone, as between the parties, that the grantee holds the title to the property in trust for the party furnishing the purchase money. Smith v. Smith, 144 Ill. 299 [33 N. E. 351; Van Buskirk v. Van Buskirk, 148 Ill. 9 [35 N. E. 383]. If, however, the title is taken in the name of the wife or of a child of the party furnishing the purchase money, such presumption does not arise; but it will be presumed that the conveyance to the wife or child was made as a gift or advancement. Such presumption, however, is not conclusive, but may be rebutted by circumstances which may be established by parol proof which is clear and satisfactory, and which shows that it was not the intention of the parties to such transaction that the transfer should be considered and treated as a gift or advancement, and, if such proof is made, the wife or child will be held to be a trus tee for the husband or father furnishing the purchase money." Following this statement, statute shall be retrospective must be shown by clear and unequivocal language; it being construed prospectively in case of doubt. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 274-280; Dec. Dig. § 120;* Statutes, Cent. Dig. §§ 344, 349; Dec. Dig. § 263.*] 3. MUNICIPAL CORPORATIONS (§ 120*)-ORDI NANCES-RETROACTIVE OPERATION. Before it was amended an ordinance did not purport to regulate the erection of buildings for the storage of coal tar, but it was afterwards amended so as to include such buildings. Before the amendment became effective, complainant, acting under a permit, had completed the removal and installation of two of three tanks for storing coal tar and only a small part of the roof of the third remained to be completed, and under another permit a contract amounting to $25,000 had been made for the construction of coal tar tanks, the foundations had been laid, considerable work done, and a large part of the material had been delivered on the premises and all of it purchased. Held, that the amendment was not intended to apply to buildings undertaken and completed to the extent of those in question, so that it would not be applicable to prevent their erection. We shall refer to but one of them-Dorman [struction, and an intention that an ordinance or v. Dorman, 187 Ill. 154, 58 N. E. 235, 79 Am. St. Rep. 210. In that case the husband Am. St. Rep. 210. In that case the husband paid for land, and had the deed made to his wife. After her death some of her heirs sought to partition it, and the husband claimed she was not the owner of the land, but held it in trust for him. The court said: "It clearly appears from competent and credible evidence that Martin L. Dorman took possession of the property almost immediately after the purchase; that he made permanent and lasting improvements, paid the taxes, and after a time occupied it with his family as a home; that he at all times controlled and managed it as his own, and that his wife recognized his right so to do, and at least on one occasion stated that the land was deeded to her in trust, and that she intended to deed it back to her husband; that this property constituted the principal part of his entire estate; and that he had a family of small children dependent upon him for support. The facts that the husband may have taken possession of the land, improved it, paid the taxes thereon, and occupied it with his wife as a homestead would not be sufficient, alone, to overcome the presumption of a gift, for the reason there is nothing in these facts inconsistent with the theory of an advancement; still, we think these facts, taken in connection with the admission of the wife that she held this property in trust William H. Sexton, Corp. Counsel, of Chifor the benefit of her husband, and the fur-cago (Nicholas Michels and A. L. Gettys, both ther fact that this property, at the time cago (Nicholas Michels and A. L. Gettys, both ther fact that this property, at the time of Chicago, of counsel), for plaintiff in error. of the conveyance, constituted the bulk of Joseph B. Fleming, of Chicago (Edwin H. his estate, sufficient to rebut the presump- Cassels, of Chicago, of counsel), for defendtion of an advancement." ant in error. We do not see anything to distinguish this case from the cases quoted from, and we are of opinion that upon this ground the circuit court correctly held appellant owned no interest in the premises sought to be partitioned and dismissed her bill. It is unnecessary, therefore, to pass upon the validity of the adoption proceedings in the county court. The decree is affirmed. Decree affirmed. (259 Ill. 578) BARRETT MFG. CO. v. CITY OF (Supreme Court of Illinois. Oct. 28, 1913.) 1. COURTS (§ 219*)-GROUND OF APPEAL. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 274-280; Dec. Dig. § 120.*] Error to Superior Court, Cook County; M. L. McKinley, Judge. Action by the Barrett Manufacturing Company against the City of Chicago. Decree for plaintiff, and defendant brings error. Affirmed. DUNN, J. The superior court of Cook county perpetually enjoined the city of Chicago from interfering with the Barrett Manufacturing Company in the erection, removal, and construction of certain tanks for the storage of crude coal tar and its products, and the city sued out this writ of error to reverse the decree. The Barrett Manufacturing Company is a corporation which has been engaged for 45 years in the manufacture and sale of roofing and paving materials and coal tar products in the city of Chicago and maintains at Sacramento avenue and Twenty-Ninth street, which is in a manufacturing district, a plant covering 24 acres, on which for the last three years its principal plant has been located. It is necessary in the conduct of its business to maintain large storage tanks on the premises for the storage of what is known as "coke oven tar," which will stand a test of 190 degrees Fahrenheit, according to the methods of John Tagliabue, and is not com2. MUNICIPAL CORPORATIONS (§ 120*)-STAT- bustible so as to menace the property or lives UTES (§ 263*)-CONSTRUCTION-RETROACTIVE of people in the vicinity. During 1912 the STATUTES. Legislative acts will not be given a retro- company decided to construct spective effect if susceptible of any other con- tanks having an aggregate storage capacity A constitutional question was involved so as to authorize an appeal to the Supreme Court, where the questions raised by the record were whether certain ordinances were applicable to complainant, and, if so, whether such application was a constitutional exercise of the legislative power. [Ed. Note. For other cases, see Courts, Cent. additional |