author: Mr. Justice Carnes Per Curiam.

text:
    Winifred Dunlavy, Administratrix, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    Gen. No. 6,081.
    1. Master and servant, § 98

      —when remedy under Federal Employers’ Liability Act exclusive. Where an action for personal injuries by a servant is within the meaning and scope of the Federal Employers’ Liability Act, the master’s liability is exclusively governed by the Federal statute and no action can be maintained under the State law.
    2. Commerce, § 4*—when evidence sufficient to sustain finding that flagman struck by interstate car. In an action by a crossing flagman stationed at the intersection of two railroads, for personal injuries sustained while trying to stop a horse and vehicle from crossing the tracks, the gates for which were out of use, evidence held sufficient to sustain a finding that plaintiff was struck by one of defendant’s loaded cars coming from another State which were being pushed on a side track to be unloaded.
    3. Commerce, § 4*—when crossing flagman employed in interstate commerce at time of injury. A crossing flagman who, in the absence of proper gates to prevent the crossing of teams, attempts to prevent a team from crossing and is struck by a car coming from another State, which is being “shunted” on a side track for the purpose of unloading by the consignee, is engaged in interstate commerce within the Federal Employers’ Liability Act.
    4. Commerce, § 4*—when servant engaged in interstate commerce. It is not necessary that a coemployee whose negligence causes the injury to an employee of a railroad be also actually employed in interstate commerce to bring the injured employee within the Federal Employers’ Liability Act, where the latter is employed in interstate commerce.
    5. Master and servant, § 98*—when evidence sufficient to sustain finding that defendant is a railroad and common carrier. In an action against an alleged railroad for damages for injuries to a crossing flagman in its employ, evidence held sufficient to sustain a finding that defendant was in fact a railroad and a common carrier.
    6. Evidence, § 5*—when judicial notice taken of statute granting railroad charter and amendments. Judicial notice will be taken of a statute granting the charter of a railroad constituting part of the public laws and of amendatory acts changing its name.

      7. Master and servant, § 566*—when recovery may not be had under State law in action for personal injuries. A recovery cannot be had by a servant for injuries under a State law on pleadings counting only on that law, when the evidence discloses that the case is controlled by the Federal Employers’ Liability Act.
    8. Master and servant, § 834*—when defendant not estopped to raise question of variance between pleading and proof. The defendant in an action by a servant of an interstate railroad to recover damages for personal injuries under the State law is not estopped on appeal to raise the question of variance between the pleading and the proof, showing the right of action under the Federal law, where he was refused a peremptory instruction, and a requested instruction that the Federal law controlled was refused, and such point was also made on a motion for new trial.
    9. Master and servant, § 98*—how provision of Federal statute relative to nonassumption of risk construed. The Federal statutes only were intended by the phrase "any statute enacted for the safety of employees,” in the Federal Employers’ Liability Act, section 4 providing that the “employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any Statute enacted for the safety of employees contributed to the injury or death of such employee.”
    10. Master and servant, § 98*—what decision controlling in questions involving Federal Employers' Liability Act. The decisions of the United States Supreme Court are the final authority on questions involving the Federal Employers’ Liability Act, and must be taken as a guide in determining what force and effect State statutes and ordinances have in determining liability arising thereunder.
    11. Master and servant, § 835*—when judgment in case erroneously framed under State law reversed. Where, as is developed by the evidence, an action by a servant for personal injuries is erroneously framed under the State law instead of under the Federal Employers’ Liability Act, a judgment for plaintiff must be reversed.
    On Rehearing.
    Appeal and error, § 1236

      —when party trying case on one theory estopped to claim that case tried on wrong theory. A party plaintiff, who tries a case upon the theory that he is the servant of the defendant and procures a judgment in the court below based upon such theory, and in his argument and statement of the case at the original hearing on appeal proceeds on such assumption, will not be heard to complain on rehearing after reversal of the judgment that the case was tried on a wrong theory and that he was not in fact a servant.

      Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 20, 1915.
    Rehearing granted and additional opinion filed April 14, 1916.
    Walker, Ingram & Sweeney, for appellant; Chester M. Dawes and J. A. Connell, of counsel.
    W. B. Moore, Cyrus E. Dietz and Thomas P. Sin-nett, for appellee.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

James Dunlavy was on July 19, 1912, employed by the Chicago, Burlington & Quincy Bailroad Company, the appellant, and the Chicago Bock Island & Pacific Bailway Company, as flagman at the crossing of the roads of those companies of a public street in the City of Moline, Bock Island county, Illinois, and while so employed was struck by a freight car that was being “shunted” or pushed by appellant’s servants on its track crossing that street, and received injuries from which he died. His widow, Winifred Dunlavy, the appellee, as administratrix of his estate, brought this action in the Circuit Court of Bock Island county to recover for his death. She filed a declaration, which as amended contained counts on common-law negligence and liability under the laws of this State, and counts charging liability under the Federal Employers’ Liability Act. Appellant pleaded the general issue and a jury was impaneled to try the cause. At the close of all the evidence appellant asked for a directed verdict in its favor, whereupon appellee dismissed all counts of the declaration drawn under the Federal act. Appellant renewed its motion for a directed verdict, which was denied, and there was a verdict and judgment thereon against appellant for $3,150, from which judgment this appeal is prose-outed, and a reversal is asked, mainly on the ground that the cause is comprehended within the meaning and scope of the Federal Employers’ Liability Act. If it is, then appellant’s liability is exclusively governed by the Federal statute, and no action can be maintained under our State law. This is held and the authorities so thoroughly reviewed in the late case of Staley v. Illinois Cent. R. Co., 268 Ill. 356, that we refer to the opinion of the court in that case without repeating what is there said. That part of the Federal act especially applicable to questions here arising is quoted on page 366 of that opinion. The question is, as said in New York Cent. & H. River R. Co. v. Carr, 238 U. S. 260, 9 N. C. C. A. 1 (35 Sup. Ct. Rep. 780): “Whether, at the time of the injury, the employee is engaged in interstate business, or in an act which is so directly and immediately connected with such business as substantially to form a part or a necessary incident thereof. * * * The scope of the statute is so broad that it covers a vast field about which there can be no discussion. But * * * the courts are constantly called upon to decide close questions where it is difficult to define the line which divides the State from the interstate business. * * * But the matter is not to be decided by considering the physical position of the employee at the time of the injury. If he is hurt in the course of his employment while going to a car to perform an interstate duty, or if he is injured while preparing an engine for an interstate trip, he is entitled to the benefits of the Federal act, although the accident occurred prior to the actual coupling of the engine to the interstate cars.” In that case an employee was injured while attempting to set a brake on an interstate car which had been cut out of the train and backed into a siding, but because it was necessary to set such brake in order that the engine to which the car was attached might, when uncoupled, return to the train and proceed on its interstate journey, he was held to be employed in interstate commerce at the time of his injury.

The street where appellee’s intestate was injured was crossed by the main track of the Bock Island road and the main track and several switch tracks of appellant’s road, the switch tracks used in part, if not entirely, to serve the Moline Plow Company’s factory located near by. There was an ordinance of the City of Moline requiring gates to be maintained at this crossing, and there had for some time been two gates about one hundred feet apart, one on the south of the Bock Island tracks, and one on the north of appellant’s tracks, maintained and operated to guard the crossing. Deceased had worked as a flagman for a year or more, and these gates being out of use, he had at the time of his injury been working about a month at that crossing. His duty was the usual one of a railway flagman at a street crossing. He was in the employ of both roads and guarding the street crossing, on approach of trains of either road. Appellant was then using two of its tracks at and near this street crossing in delivering two carloads of malleable iron which had been shipped from Milwaukee, Wisconsin to the Moline Plow Company; and to effect the delivery it was necessarily moving two empty cars from the premises of the Moline Plow Company to make place for them. It is claimed by appellant, and we think the evidence sustains its contention, that deceased was struck by one of the loaded cars; but it is claimed by appellee that the evidence, at least, leaves it in doubt, whether it was one of the loaded cars or one of the empty cars that struck him. However that may be, there is no question that he was injured in the operation of delivering two loaded cars that had been shipped from the State of Wisconsin, and whether he was injured while appellant was trying to make a place for that delivery by removing two empty cars that were in the way, or by the two loaded cars that were being pushed into the place after it was cleared, is not, in our opinion, very material. Deceased was at the time trying to stop a horse and vehicle that was . on the street crossing driving across the tracks, and while so doing was struck by the car that was being “shunted” across the street; which means that it was pushed across the street by placing a stake or bar between the head of the engine and the car and in that way setting the car in motion.

It is true that to come within the Federal statute the carrier must be engaged in interstate commerce and the injured servant be then employed by it in such commerce; but the servant could not so lie employed if its master was not engaged in interstate commerce, therefore to say that the servant at the time of his injury was employed in interstate commerce means that his master was also so engaged. It has been held that a servant is engaged in interstate commerce while repairing a switch on tracks used indiscriminately for both kinds of commerce, and that it is immaterial whether the train that struck him was engaged in that commerce or not. Central R. Co. of New Jersey v. Colasurdo, 113 C. C. A. 379,192 Fed. 901. A carpenter repairing a bridge over which both kinds of commerce are carried, if injured under such circumstances, cannot take his choice of remedy under the State and Federal law, for he is engaged in interstate commerce, and the national act is exclusive. Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146 [3 N. C. C. A. 779]. All section men and track laborers working on any part of the track or switches used by a common carrier by railroad, indiscriminately both in interstate and intrastate commerce, are employed in interstate commerce within the meaning of the Federal act. San Pedro, L. A. & S. L. R. Co. v. Davide, 127 C. C. A. 454, 210 Fed. 870; Central R. Co. of New Jersey v. Colasurdo, supra; Zikos v. Oregon R. & Nav. Co., 179 Fed. 893. A fireman on a locomotive engine repairing Ms engine for an interstate trip is, while so engaged, protected by the national act, although the engine had not been coupled to the cars of the train. North Carolina R. Co. v. Zachary, 232 U. S. 248 [9 N. C. C. A. 109]. Yard clerks in the employ of common carriers by railroad wMle inspecting and making a record of the seals on car doors, putting labels on cars to guide switcMng crews, etc., are employed in interstate commerce if trains upon which they are so working have any cars containing interstate commerce. St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156. It is not essential, where the negligence complained of was that of a coemployee, that he must also be employed in interstate commerce. Pedersen case, supra. We are of opinion that deceased was employed in interstate commerce at the time of Ms injury if appellant was then so engaged, and that in so holding, under the facts of tMs case, we are not in conflict with the holdings of the courts in Patry v. Chicago & W. I. R. Co., 265 Ill. 310; and in Illinois Cent. R. Co. v. Behrens, 233 U. S. 473 [10 N. C. C. A. 153], under the facts in those cases. It is true that it must appear that the railroad is operated as a common carrier. Atchison, T. & S. F. Ry. Co. v. Victoria, F. & W. R. Co., 234 U. S. 1. Appellee insists that there is no proof in the record that appellant was engaged in interstate commerce or was a common carrier at the time in question, and suggests that it may have been, so far as the record shows, a company engaged in switching cars, and not an interstate railroad or a railroad engaged in interstate business. We will not stop to inquire what might be the character of a corporation engaged only in switcMng interstate freight to its consignee. It is to be observed that the fact that appellant is an interstate railroad is one of general knowledge, but whether courts may take judicial notice of that fact is not free from doubt. But we think the record discloses sufficient facts to warrant a finding from the evidence that appellant is a railroad and a common carrier, and avoid the absurdity of letting the case go off on a presumption that it is a corporation engaged only in switching cars in the City of Moline. Appellee offered proof that appellant was a railroad, operated as such, that it had a main track and several side tracks, that the City of Moline had recognized it as a railroad and passed ordinances regulating its operation; and we take judicial notice of the act granting its charter, which was declared a Public Act (Laws of 1849, p. 96), and we think we may take notice of amendatory acts changing its name. We are inclined to give weight to slight proof, if necessary, to establish a fact of such general knowledge, and one that we must know could have been readily established had attention been called to it on the trial. We therefore conclude that appellee’s intestate was at the time of his injury employed in interstate commerce and that the liability of appellant is entirely fixed and governed by the Federal act.

It is urged by appellee that there is no issue in the case whether deceased was at the time of his injury engaged in interstate commerce. This contention is based on the theory that a defendant sued under the State law should in its plea or answer set up facts showing it was engaged in interstate commerce at the time in question. The consideration that the defendant would ordinarily know whether it was so engaged and the injured employee might not know, or have means of knowledge of that fact, gives much support to the contention that the defendant should, as a matter of fairness, be required to give notice by its pleadings of such a defense, and some courts have so held; but it is not now an open question. The court in St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156, held, and in Toledo, St. L. & W. R. Co. v. Slavin, 236 U. S. 454, reaffirmed, that a recovery cannot be had under a State law on pleadings counting only on that law when the evidence develops that the case is controlled by the Federal statute, on the ground that “the case pleaded was not proved and the case proved was not pleaded.” This answers many contentions of appellee that appellant is estopped to raise the question here. The appellant, as we have seen, asked and was refused a peremptory instruction. It also asked and was refused instructions that the Federal act only controlled, and it made the point on its motion for a new trial, which seems to be more than was required under the above cited authorities.

There is much discussion by appellee of two ordinances of the City of Moline which she pleaded and gave in evidence, one in regard to gates at the crossing, and the other as to “shunting” cars, each of which it is claimed appellant violated, and was thereby guilty of negligence that caused the injury. It is stated again and again in varying language, in the authorities before cited, that the Federal act supersedes all State laws on the subject and controls all cases that fall within its provisions. Section 4 of the Act provides that the “employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any Statute enacted for the safety of employees contributed to the injury or death of such employee.” The court in Seaboard Air Line Ry. v. Horton, 233 U. S. 492 [8 N. C. C. A. 834], held that the phrase “any statute enacted for the safety of employees” meant Federal statutes and said: “It is not to be conceived that, in enacting a general law for establishing and enforcing the responsibility of common carriers by railroad to their employees in interstate commerce, Congress intended to permit the legislatures of the several States to determine the effect of contributory negligence and assumption of risk, by enacting statutes for the safety of employees, since this would in effect relegate to State control two of the essential factors that determine the responsibility of the employer.” This expression of the United States Supreme Court, which is the final authority on questions arising under the Federal act, must be taken as a guide in determining what force and effect State statutes and municipal ordinances have in determining questions of liability arising thereunder.

It is not claimed by appellee that any count of the declaration on which judgment was entered avers sufficient facts to sustain a judgment under the Federal statute, therefore the judgment must be reversed. We will not attempt to notice in detail other errors discussed in the briefs; they are not likely, if they are errors, to occur on another trial. We express no opinion on any issue of fact other than we have before stated. The cause is remanded for further proceedings not inconsistent with the vi,ews herein expressed.

Reversed and remanded.

On Rehearing.

Per Curiam.

On rehearing we adhere to our conclusions expressed in the foregoing opinion. Appellee asks us now to consider whether the intestate was employed by appellant at the time in question, and points out evidence in the record showing that he was employed by the Chicago, Rock Island and Pacific Railway Company to protect both the Rock Island road and the C., B. & Q. road crossings at that place, and that the Rock Island road paid him and billed against the Q. for their part of the charge for his services, and argues from that fact that deceased was not in the employ of appellant and therefore was not employed by it in interstate commerce.

Appellee’s declaration, on which the case was tried, charged that the deceased was an employee of appellant. The court, at appellee’s instance, repeatedly instructed the jury on the theory that deceased was so employed. In appellee’s original argument here, in her statement of the case, she six times assertéd and mentioned that deceased was employed by appellant. The case was begun and tried in the court below on that theory and presented to this court and decided on appellee’s construction of the employment. Her counsel say now that they overlooked and misapprehended the fact as to the employment, and that the trial court and this court have followed them in that error. Under those circumstances we are not inclined to question that deceased was in the employ of appellant at the time in' question. If he was not, entirely different questions arise that have not been argued or hardly touched upon. It was the duty of appellee’s intestate to guard the crossing against the approach of appellant’s cars. If he was not appellant’s employee, some questions arise similar to those considered in Doering v. Peoria & P. U. Ry. Co., 196 Ill. App. 129.

Whether the same conclusion should be reached, we express no opinion. The original will be filed with this supplemental as a final opinion in the case.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois ex rel. Nancy S. Tilden, Appellant, v. J. J. Massieon, Mayor, and City Council of Peru, Illinois, Appellees.
    Gen. No. 6,085.
    1. Dedication, § 25

      —how statutes relative to platting of land and recording of plat construed. Statutory requirements as to the manner of platting land and as to the necessity of recording the plat are not intended to abridge the right of an owner of land to subdivide it and make a plat thereof, but rather to avoid confusion and establish some rule of uniformity.
    2. Dedication, § 25*—when approval of, proffered plat wrongfully refused 6y municipality. Municipalities may make reasonable regulations respecting the platting of land, but they cannot, by failing to make regulations, put themselves in a position to refuse to approve a proffered plat when the statutory provisions have been complied with and the plat appears to conform to ordinary custom and usage.
    3. Dedication, § 17*—what does not constitute acceptance of offer of dedication of streets and alleys. A city by approving a plat as required by statute does not accept the offer of the dedication of the street and alleys thereon, but the proper local authorities may take them in charge and improve them for public use when they deem fit.
    4. Mandamus, § 37*—when statutory approval of proffered plat enforced. The statutory approval of a proffered plat by municipal authorities is a ministerial act, and enforceable by mandamus.
    5. Dedication, § 26*—when petition to compel approval of profferred plat shows compliance with statutory requirements in making plat. On mandamus to compel municipal authorities to approve a proffered plat, held that a petition, to which a copy of the plat made in the customary way was attached sufficiently showed fulfilment of statutory requirements in making of the plat.
    6. Dedication, § 29*—when plat of land may not he recorded. An owner of land in a city cannot make and record a plat of his land without the approval of the city authorities.
    Appeal from the Circuit Court of La Salle county; the Hon. Ed-gab Eldbedge, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 20, 1915.
    Rehearing allowed and additional opinion filed May 24, 1916.

      Hoberg & Hoberg and McDougall & Chapman, for appellant.
    Charles W. Helmig, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

A petition in the name of the People of the State of Illinois, on relation of Nancy S. Tilden, for a writ of mandamus to compel the mayor and city council of the City of Peru to approve a certain plat of an addition to said city made by the relator was filed in the Circuit Court. The defendant appeared and the mayor and city council each filed a general demurrer to the petition. The demurers were sustained by the court, and the petitioner, abiding by the petition, final judgment was entered thereon, and she brings the case here by appeal.

The petition for' the writ, after entitling the cause is as follows: The petitioner, the People of the State of Illinois, on relation of Nancy S. Tilden, of the City of Chicago, in the County of Cook, and State of Illinois, by Hoberg & Hoberg and McDougall & Chapman, its attorneys, complaining shows that long prior to the 9th day of January, A. D. 1914, the City of Peru, Illinois, was organized under, and now is, and for more than five years last past has been organized under the general laws of the State of Illinois for the incorporation of cities and villages; that by article X, section 5, of chapter 24, of the Revised Statutes of the State of Illinois (J. & A. j[ 1504), it is provided that: “The city council or board of trustees shall have power to provide, by ordinance, that any map, plat, or subdivision of any block, lot, sub-lot, or part thereof, or of any piece or parcel of land, shall be submitted to the city council or board of trustees, or to some officer to be designated by such council or board of trustees, for their or his approval; and in such cases no such map, plat or subdivision shall be entitled to record in the proper county, or have any validity until it shall have been so approved”; but that said City of Peru and said city council have never passed any ordinance in accordance with the authority conferred upon said city council by said statute.

Tour petitioner further shows that she, the said Nancy S. Tilden, is, and for more than one year last past has been, the owner of the following described real estate, in the said City of Peru, to wit: (particularly describing same), “excepting the coal underlying the surface thereof and the right to mine and remove the same without entering upon or occupying the surface thereof; that said real estate has been within the corporate limits of said City of Peru for many years, and during said time the said Nancy S. Tilden has paid taxes thereon for the benefit of the said City of Peru; that the said Nancy S. Tilden caused the said real estate to be platted into lots, blocks, streets and alleys as an addition adjoining the platted part of said City of Peru, to be called Til-den’s Addition to the City of Peru; that in every particular the said plat conforms to all of the provisions of the statutes of the State of Illinois in such case made and provided, and does not in any respect conflict with any of the provisions of any of the ordinances of the said City of Peru; that said relator, on, to wit, the 9th day of January, 1914, presented said plat to the city council of the said City of Peru for approval, and then and there demanded of said city council that it approve said plat, a copy of which plat is hereto attached and marked ‘Exhibit A,’ and made a part of this petition; that said city council on the 12th day of January, 1914, at a regular meeting of said city council then and there held, referred said petition and said plat to the committee oq, local improvements of said city; that said committee on local improvements has presented no report to said city council thereon, and, as your petitioner is informed and believes, and so states the fact to be, said committee will not present any report thereon, but will retain the same for the purpose of aiding the said city council in refusing to approve said plat; that the said city council has refused and still does refuse to approve said plat or to pass thereon, and your petitioner states the fact to be that the said city council will continue to refuse to approve said plat, or to pass thereon, unless compelled so to do by the writ of mandamus of this court; to the great injury and damage of the relator.

“Wherefore the petitioner prays that a writ of mandamus, directed to said mayor and city council, may be issued in due form, commanding said city council forthwith to pass a proper ordinance, in due form, approving said plat and that such further order may be made in the premises as justice may require, etc.”

The petition is signed and verified, and a copy of the plat is attached thereto. No question is here raised as to the signing and verification, and presenting the copy of the plat as an exhibit.

The statutory provisions eliminating words and clauses not especially applicable to the questions presented are as follows: It is provided in an act entitled “Plats,” chapter 109, Revised Statutes (J. & A. jf 8517 et seq.):

Section 1. That if the owner of lands wishes to subdivide the same into two or more parts for the purpose of making an addition to a city, he shall cause a survey and plat to be made in the manner there prescribed.

Section 2. The plat, so made, shall be recorded in the recorder’s office of the county, after being acknowledged and certified, as there provided.

Section 3. The effect of such acknowledgment and recording of the plat is to convey to the city such portions of the plat as are marked or noted thereon as streets or alleys, and such portions shall be held in the corporate name thereof in trust and’ for the uses and purposes set forth or intended.

Section 5. Makes it a penal offense to sell, offer for sale or to lease for any term exceeding five years, any lot or block in any city or addition thereto without complying with all the provisions of the act.

By Section 13, chapter 115, Bevised Statutes (J. & A. ft 9110), in the act entitled “Becorders,” it is made a penal offense for any recorder to record any plat of land situated in a city until the same shall have been approved by the legislative authority of the city in which such land is situated, or by some city, town or village officer for that purpose to be designated by resolution or ordinance of said legislative authority.

In the act entitled “Cities, Villages and Towns,” chapter 24, article X, sec. 5 (J. & A. 1504) reads as follows: “The city council or board of trustees shall have power to provide, by ordinance, that any map, plat, or. subdivision of any block, lot, sub-lot, or part thereof, or of any piece or parcel of land, shall be submitted to the city council or board of trustees, or to some officer to be designated by such council or board of .trustees, for their or his approval; and in such cases no such map, plat or subdivision shall be en-. titled to record in the proper county, or have any validity until it shall have been so approved.”

If the petition for the writ shows compliance by the relator with all the statutory provisions in relation to the plat, the question presented here has been decided by the Appellate Court of the Fourth District in People v. Board Trustees of Village of Mounds, 122 Ill. App. 449, except in that case the municipal authorities had passed a general ordinance providing for the submission of such plats to the village board and prescribed the manner of its action thereon, while here no such ordinance has been passed by appellee. A general demurrer to the petition in that case was sustained by the trial court, and judgment entered against the relator which was reversed on the ground that it was not a matter of discretion of municipal authorities to grant or withhold approval of a plat prepared and presented in compliance with statutory provisions. The court said: “Surely it was never intended by the Legislature to clothe a village board or village officer with power to annul chapter 109 in its application to the platting of land within the corporate limits. If that were so intended we should look for a different order in the proceedings prescribed by the statute and expect the first requirement to be the authority, consent or approval of the village board. Within the language of the statute it is the plat and nothing more that is to be submitted for approval. The land belonged to the relator. His right to subdivide and plat it is a substantial right sanctioned and regulated by chapter 109, but it was given to the village board to see that the plat- was made in compliance with the statute and in conformity with any reasonable regulations or requirements by ordinance respecting the size of the blocks and lots, the direction and width of the streets and alleys, or other detail of the survey. In our opinion this is the extent to which discretion was given the board.”

We are referred to no other Illinois case construing these statutes on the questions here presented, and know of none. The conclusion reached by that court seems to us correct and its reasoning sound. We sée nothing in the fact that in one case the municipality had passed a general ordinance on the subject, and in the other it had not, that should control the decision.

It is a matter of common observation and common knowledge, especially in this country of rapidly growing and expanding cities and villages, that lands situated therein are required by both seller and purchaser to be platted so that they can be bought and sold by description referring to plats, and it is also convenient for governmental purposes of general and special taxation that they be so platted. The right of the owner to subdivide his lands and make a plat thereof that is legally recognized, is a valuable right, and one that is generally recognized and protected by the courts. Statutory requirements as to the manner of platting and the necessity of recording the plat are not intended to abridge this right, but rather to avoid confusion and establish some rule of uniformity in its exercise. When our legislature delegated to municipal corporations the power to further supervise the platting of lands within their boundaries, it cannot be understood to intend that those authorities could, at will, prevent any landholder from making plats and sales thereunder of his land. Very likely, as suggested in People v. Board Trustees of Village of Mounds, supra, municipalities may make reasonable regulations respecting the platting, which must be observed, but we do not think they can, by failing to make any regulation in that respect, put themselves in a position to refuse to approve a plat proffered when the statutory provisions have been complied with, and the plat appears, as does this one, to conform to ordinary customs and usages in such matters.

Appellee is of the opinion that the city by approving the plat accepts the streets and alleys marked thereon and is compelled to put them in condition for travel, and urges in that view of the case there is great reason for permitting a municipality discretion in approving a plat. The same ground was taken by counsel in People v. Board Trustees of Village of Mounds, supra, and the position was there correctly held untenable. We do not understand that the approval of the plat by the city operates as an acceptance of the offer to donate the streets and alleys therein named, to1 the city. We are of the opinion that the rights and privileges of the city are the same regarding the acceptance of the streets and alleys offered by the plat, after the plat is approved as required by the statute, that they would be had the statute not required approval of the plat by the municipality. It is said in Elliot on Boads and Streets (2nd Ed.), sec. 118, that the dedicator “leaves the streets to be opened by the proper local authorities at such a time as the public interest may require, and of this the local authorities are the judges. It is for them to determine when the public interests demand that the ways as laid out on the plat shall 'be .taken in charge and improved for public use.” This text of Elliott’s is cited and its doctrine approved in Village of Lee v. Harris, 206 Ill. 428.

There was a provision in the charter of the City of Detroit requiring the board of public works to approve plats without which approval the plat was invalid. The Supreme Court of Michigan had the question of the duty of the municipal officers under that provision before it in three cases, and reached conclusions in accordance with our construction of our statutes above expressed, and held mandamus would lie to compel approval. (Campau v. Board of Public Works, 86 Mich. 372; Van Husan v. Heames, 91 Mich 519; Owen v. Moreland, 132 Mich. 477.) To the same effect is also, State v. Chase, 42 Mo. App. 343, and in that case on the question whether mandamus is the proper remedy, the court said: “The plaintiff having done on his part all the law demands, the approval of the plat by defendants is merely a ministerial duty required of them, the performance of which may be compelled by mandamus.” We have no doubt that the act of appellee in approving the plat is ministerial—not judicial in its nature. In many cases where a ministerial act is required to be performed by public officers, they must determine preliminary facts that involve the exercise of judgment on their part in order to determine whether a stated case exists calling upon them to act, but this does not render the act judicial. Town of Somonauk v. People, 178 Ill. 631.

Appellee says that the petition does not sufficiently show that the requirements of the statute were complied with in making the plat. A copy of the plat is made a part of the petition, and appellee argues the case on the theory that it is a part of the petition to be considered by us, therefore it is not necessary that the body of the petition should state facts that are shown by - an examination of the plat. That being conceded, there is no objection, as we understand appellee, except that the figures indicating the width of the streets do not show whether feet, rods or inches are meant. The plat is drawn to scale, as shown by its certificate, and there is no difficulty in determining that the figures indicate feet. It is the usual way of preparing plats. We see nothing in that objection.

The provision in the Cities and Villages Act, requiring approval of the plat by the municipal authorities, closes with a provision that the plat shall not be entitled to record or have any validity until it shall have been approved “in such cases,” that is, in cases where the city has provided by ordinance for submission of the plat, and appellee calls our attention to that feature of the statute and suggests that the plat might be recorded in this case because the city had not made any provision for submission. There would be room for this contention but for the imperative provision in the Eecorders Act that the plat shall not be recorded until it has been approved by the legislative authority of the city. With that provision in view, it seems clear that an owner cannot make and record a plat of his land without the approval of the city authorities.

We are of the opinion that the trial court erred in sustaining the demurrer. The judgment is therefore reversed and the cause remanded with directions to the Circuit Court to overrule the demurrer.

Reversed and remanded with directions.

On Rehearing.

Per Curiam.

After this case had been considered and decided in this court the Legislature amended section 62 of the Revenue Act (J. & A. ft 9280) on June 29, 1915, so as to forbid a city, town or village officer to approve a new subdivision of any tract of land unless all redeemable sales for unpaid taxes or special assessments have been redeemed and all forfeited taxes or special assessments have been paid, and unless a statement from the county clerk is indorsed upon the proposed plat of the new subdivision that the county clerk’ finds no reasonable tax sales or unpaid forfeited taxes against any of the real estate included in such plat.

We granted a rehearing to consider what effect this subsequent statute should have upon our decision. It is contended in reply to the petition for rehearing that this statute is invalid, and-if not invalid does not apply to this case. We conclude that as the judgment rendered in the court below was erroneous when entered, it should be reversed and the cause remanded to the court below, and that the record now before us does not give us authority to pass upon any question as to the validity or applicability or effect of said new statute, but that counsel should be left to take such steps in the trial court as they may deem proper.

We therefore readopt and refile our former opinion but vacate the directions therein given and simply reverse the judgment and remand the cause.

Reversed and remanded.


author: Mr. Presiding Justice Dibell

text:
    Julia Jacobson, Appellant, v. Joseph M. Ramey, Appellee.
    Gen. No. 6,076.
    (Not to be reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed December 27, 1915.
    Rehearing denied February 1, 1916.
    Statement of the Case.
    Action by Julia Jacobson, plaintiff, against Joseph M. Barney, defendant, to recover damages for personal injuries sustained as a result of falling through a defective stairway on premises leased by defendant to plaintiff’s husband. From a judgment for defendant, plaintiff appeals.
    Plaintiff filed a declaration containing three counts. Defendant did not demur thereto, but filed a plea of not guilty. There was a jury trial and evidence for the plaintiff was heard. Plaintiff offered in evidence a lease of said building from Barney to her husband, Samuel Jacobson. Defendant objected and the court reserved its ruling. At the close of the plaintiff’s evidence the court sustained the objection to said lease. Thereupon plaintiff by leave of court filed an additional count. The accident was on October 31, 1912, and the additional count was filed January 22, 1915. No demurrer was interposed thereto but defendant filed a plea of not guilty and a plea of the statute of limitations. Plaintiff demurred to the plea of the statute of limitations and that demurrer was overruled, and plaintiff abided by her declaration. The plaintiff again offered the lease in evidence and the court sustained an objection thereto, and granted a motion by defendant to exclude all plaintiff’s evidence and instructed the jury to return a verdict for defendant, and this was done. Motions for a new trial and in arrest of judgment were denied, and defendant had judgment in bar, and plaintiff below appealed therefrom. Defendant argued that the original declaration did not state a cause of action, and that if any cause of action for plaintiff had ever been stated, it was in the amended declaration, filed more than two years after the injury, and that the statute of limitations barred the action.
    The original declaration sufficiently alleged the location of this building in the City of Streator; that it had a stairway on the outside; that defendant owned the building at the time of the injury; that the stairway was defective, rotten and unsafe; that plaintiff fell through it and was injured; and that defendant had made a contract with the husband of plaintiff to keep it in repair.
    The second count of the original declaration alleged that on or about May 23, 1910, defendant entered into an agreement with Samuel Jacobson, the husband of plaintiff, to keep the roof, stairway and outer walls of said building in good repair and condition. That count did not say in express terms that this agreement was in writing, but it said that a certain matter therein was “in words and figures as follows.”
    The count further averred that thereby defendant undertook to keep said stairway in good repair and condition until June 15, 1915, which was not contained in what was quoted from the agreement.
    The additional count set out said instrument in full, and it appeared that the agreement mentioned in the second count was a written lease of said building from defendant to plaintiff’s husband to be used only as a store building and a flat for living rooms, and that defendant was to so remodel the building, and that the upper floor should have suitable apartments for flat purposes. The proof was that the upper story was so remodeled, and that at the time of the accident to plaintiff, Samuel Jacobson and Ms family lived in the upper rooms, and that this stairway was their means of access to the-street, and that plaintiff lived there with her husband, and that she was passing between the street and their living rooms when this board of the stairway gave way beneath her and caused the injury.
    Abstract of the Decision.
    1. Limitation of actions, § 58

      —when declaration may he amended or additional count filed after running of statute. A plaintiff may amend his declaration or file an additional count stating his cause of action in a different way after the statute of limitations has run without subjecting his action to the bar of the statute.
    2. Limitation of actions, § 56*—when new cause of action set up hy amended declaration or additional count after running of statute harred. Where the cause of action set up by an amendment to the declaration or by an additional count is a new one and not a mere restatement of the cause of action set out in the original declaration, such amendment or additional count will not relate back to the commencement of the suit, and if the statute of limitations has run before such new cause of action has been stated, the plea of the statute will be a defense to such new cause of action.
    3. Negligence, § 119

      —what plaintiff must allege in action for damages for personal injuries negligently caused. One of the three essential elements of a cause of action for damages for personal injuries negligently caused, which the plaintiff must aver and prove in order to entitle him to recover, is the existence of a duty on the part of defendant to protect the plaintiff from the injury of which' he complains.
    4. Negligence, § 119*—when'averment as to duty of defendant to prevent injury insufficient. An allegation in an action for damages for injuries alleged to be due to the negligence of another, that it is the duty of the defendant to do or not to do certain things, is a legal conclusion and insufficient, as the declaration must state the facts from which the duty may be raised.

      Nicholas J. Pritzker and Lloyd Painter, for appellant.
    Arthur H. Shay, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opimon of the court.

5. Pleading, § 466 —when defects or omissions cured by verdict. The general rule is that where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet, if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission is cured by the verdict.

6. Limitation of actions, § 60*—when amendment or additional count merely a restatement of cause of action. Where there is no demurrer to a declaration and the question whether the cause of action stated in an amended declaration or additional count filed after the running of the statute of limitations is the same cause of action as is stated in the original declaration arises upon the pleadings before verdict, such amended declaration or additional count will be held to only restate a good cause of action defectively stated in the original declaration, if the necessary allegations may be fairly and reasonably inferred or may reasonably be found to be implied in what is said in the original declaration.

7. Landlord and tenant, § 258*—when presumed that lessee had object in having stairway repaired. Where a landlord is required by the terms of a lease to remodel a building so that the lower floor could be used for store purposes and the upper floor for flat purposes, by the lessee and to build an exterior stairway as means of access to such upper floor and to keep the stairway in good repair, it must be presumed in an action by the wife of lessee for damages for injuries alleged to be due to defects in the stairway that the lessee had an object in requiring the stairway to be kept in repair, and that it was intended by the lease that he should use it in some way connected with his own home or business.

8. Husband and wife, § 73*—when roife of lessee right to use' stairway on leased premises. A wife has the right to use an exterior, stairway of premises leased by the husband, leading from an upper story used by them for flat purposes to the street.

9. Limitation of actions, § 68*—when declaration defectively stating good cause of action not barred. An original declaration by a wife of a lessee against the landlord for damages for personal injuries sustained because of the failure of the landlord to keep an exterior stairway leading from the second floor of the leased building, the upper floor of which was used by lessee for residence purposes and the lower part for business purposes, to the street, in repair, which alleged that defendant entered into an agreement with the husband of plaintiff to keep the roof, stairway and outer walks of the leased building in good repair and condition, and further averred that thereby defendant undertook to keep said stairway in good repair and condition, held to defectively state a good cause of action as to the duty of the defendant to repair the premises and as to the right of-plaintiff to be upon the stairway when injured, so that when amplified by an additional count setting out the terms of the agreement—a lease—the statute of limitations was not a bar.

10. Landlord and tenant, § 226 —when landlord liable to wife of lessee for damages for personal injuries due to defective stairway. Where a landlord has covenanted to keep premises in repair, the lower floor of which is used by the lessee for business purposes and the upper for residence purposes, he is liable to the wife of the lessee for damages for personal injuries sustained while using a defective stairway leading from the upper floor to the street.


author: Mr. Justice Carnes

text:
    James B. Paden, Defendant in Error, v. Chicago, Rock Island & Pacific Railway Company, Plaintiff in Error.
    Gen. No. 6,142.
    (Not to he reported in full.)
    Error to the, Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed December 27, 1915.
    Rehearing denied February 1, 1916.
    Statement of the Case.
    • Action by James B. Paden, plaintiff, against the Chicago, Bock Island & Pacific Bailway Company, defendant, to recover damages for personal injuries sustained as a result of the car from which he was unloading coal being struck by another car with such force as to throw plaintiff to the ground. From a judgment for plaintiff, defendant brings error.

      Plaintiff was a teamster, and was unloading coal from a car that had been placed on a side track by the defendant, and while so engaged a switching crew of the defendant shoved another car against the one from which the plaintiff was taking coal, with such force as to throw him to the ground and injure him.
    The declaration charged that the defendant in the use and operation of its railroad had a team or merchandise track connected with its road in the Village of DePue, in the County of LaSalle, which track was used by the defendant in placing cars thereon containing freight, so that parties entitled thereto might be enabled to unload said freight from said cars, or load freight into the cars; that on January 12, 1914, the plaintiff was engaged in unloading certain freight from one of the cars so used and operated by the defendant while said car was standing upon the said merchandise track.
    The only instruction given at the instance of plaintiff. was on the measure of damages. The injury claimed was an aggravation of a hernia, from which the plaintiff had been some time suffering, and there was evidence before the jury as to a surgical operation performed on plaintiff after the time in question. The instruction complained of informed the jury that if they found the defendant guilty in assessing damages “they should take into consideration all the facts and circumstances shown by the evidence before them; the nature and extent of the plaintiff’s physical injuries, if any, so far as the same are alleged in the declaration and shown by the evidence.”
    The court, at the instance of the defendant, instructed the jury that the damages must be confined to such as were the natural proximate result of the defendant’s neglect; that the burden of proof was on the plaintiff to show his injuries were caused by the defendant’s neglect, and if they believed that the injuries from which plaintiff complained resulted from other causes than the defendant’s negligence that the complainant could not recover anything for injuries, and specifically told them if they found from the evidence that the condition of the plaintiff’s rupture which necessitated the operation he underwent did not result from the accident of which he complains as a natural and proximate consequence, but was a condition in no way connected therewith, then in determining what his damages were they should leave out of consideration the fact of the operation, the time lost thereby, and the expense paid and suffering connected therewith.
    Abstract of the Decision.
    1. Pleading, § 466

      —when defects or omissions in, cured 6y verdict. Where there is any defect, imperfection or omission in any pleading, whether in substance or in form, which would have been a fatal objection on demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so imperfectly' or defectively stated or omitted, and without which it is not to be presumed that the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission is cured by the verdict.
    2. Pleading, § 466

      —when defective declaration in action for negligent injuries cured 6y verdict. In an action by a teamster for damages for personal injuries sustained as the result of the car from which plaintiff was unloading coal on a sidetrack of a railroad company being struck by another car being switched on the track by the company’s servants, a declaration which failed to allege that plaintiff was lawfully on such side track, held good after verdict.

      William D. Fullerton and A. B. Enoch, for plaintiff in error.
    Thomas N. Haskins and Butters & Clark, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

3. Damages, § 205*—when instruction that damages can only he based upon injury complained of is necessary. Where a plaintiff in a personal injury action is suffering disability that may have arisen only in part from the injury complained of, instructions as to the measure of damages that might otherwise be good should he carefully guarded, and the jury clearly informed that damages can be based only upon the injury complained of.

4. Damages, § 202*—when instruction on measure of damages for personal injuries not misleading. In an action for damages for personal injuries sustained by a teamster engaged in unloading coal from a car on a railroad side track, as the result of the car being struck by another car so as to cause plaintiff to fall to the ground, an instruction on the measure of damages that if the jury found the defendant guilty in assessing damages “they should take into consideration all the facts and circumstances shown by the evidence before them, the nature and extent of plaintiff’s physical injuries, if any, so far as the same are alleged in the declaration and shown by the evidence,” held not misleading where the court gave other instructions limiting the plaintiff's damages to such as were the proximate result of the defendant's neglect, and were not due to other causes, and specifically told them that if they found from the evidence that the condition of plaintiff’s rupture which necessitated the operation he underwent did not result from’the accident as the natural and proximate consequence thereof, then, in determining the damages, they should leave out of consideration the fact of the operation, the time lost thereby, and the expense paid and suffering connected therewith.


text:
    Joseph H. Paxton et al., Appellees, v. William H. Fabry et al., Appellants.
    Gen. No. 6,221.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Claibe C. Edwards, Hon. Chables H. Donnelly and Hon. Aethue H. Fbost, Judges, presiding era Sarao. Heard in this court at the October term, 1915.
    Reversed.
    Opinion filed December 27, 1915.
    Rehearing denied' February 1, 1916.
    Statement of the Case.
    Bill by Joseph H. Paxton and thirteen other lessees of property to restrain Bradford E. Simmons, as landlord, and William H. Fabry and M. F. Ellis, as lessees, from using the premises occupied by defendants Fabry and Ellis as a drug store, cigar store and physician’s office. From a decree granting a preliminary injunction, defendants appeal.
    Some time prior to August, 1914, defendant Bradford E. Simmons was the owner of a store building and lot on which it was located, in Zion City, Lake county, Illinois, and the other defendants, William H. Fabry and M. F. Ellis were using a part of it, under a lease from Simmons, as a drug store in which they also sold cigars. A resident physician had an office in the building. On May 3, 1915, after this condition had existed for nine months or more, plaintiffs, fourteen lessees of residence properties in the City of Zion, filed a bill for injunction to restrain such use of said building, and applied to the court for an interlocutory decree enjoining such use pending the litigation. The application was heard on the bill and affidavits in support thereof, and affidavits of the defendants who appeared and without answering the bill, resisted the application. A decree was entered restraining the defendants, until the further order of the court, from using any part of said premises as a cigarette, cigar or tobacco store; or a place for the manufacture or sale of tobacco in any form or manner; or pharmacy, apothecary shop or drug store; or a place for the manufacture or sale of drugs or medicines of any kind; or the office or residence of a practicing physician, surgeon or other person actually engaged in the practice of medicine or surgery.
    The theory of the bill was that John Alex. Dowie, in his lifetime, prior to 1899, organized a religious sect opposed to the business-and practices sought to be enjoined, and various other forms of business regarded legitimate and proper in civilized communities, and still other practices that are generally condemned as immoral and illegal; that in 1899 the site of Zion City was selected as the location of the society in which such business and practices should be prohibited; that in furtherance of that purpose Dowie obtained title to nearly all the land within the present city limits and executed leases for the term of 1100 years, containing restrictive covenants against said uses; that a building plan was also adopted to that end, and various statements were publicly made and published by Dowie proclaiming such purposes; that afterwards Dowie became insolvent and his property, including a large portion of the land within the limits of Zion City, passed into the hands of a receiver under the control of a Federal court, and the receiver made sales of the property in various ways and under various restrictions that resulted in maintaining such restrictions as to all land sold; that the result of these facts was that the owners of land in the City of Zion holding by or under titles containing such restrictive covenants were bound by the covenants, and also that the owners of land there situated holding under titles in which there were no restrictive covenants were also bound if they purchased with knowledge of the plan upon which the said city was founded,

      Abstract of the Decision.
    1. Appeal and ebbob, § 855

      —what is effect of absence of certificate of evidence. Where there is no certificate of evidence, the Appellate Court will not consider affidavits on the hearing of a preliminary injunction which are incorporated in the record and certified to by the clerk of the court.
    2. Appeal and ebbob, § 1271*—when presumed court warranted in finding allegations in bill for preliminary injunction true. It will be presumed, in the absence of a certificate of evidence, on appeal from a decree granting an interlocutory injunction, where affidavits read on the hearing are a part of the record on appeal, that the court, on a consideration of the bill and the affidavits filed, was warranted in finding that the allegations of fact found in the bill were true.
    3. Injunction, § 164*—what considered on application for, preliminary injunction. The merits of the case are not passed upon in considering the issuance of a preliminary injunction, but the court should inquire whether less harm will result to the enjoined party if he should finally be victorious than -would accrue to the complainant from the absence of the injunction were he a winning party.
    4. Injunction, § 154*—when preliminary injunction granted. When the questions to be ultimately decided are serious or doubtful,
    the legal discretion of the judge in granting a preliminary injunction should be influenced largely by the consideration that the injury to the moving party will be certain and irreparable if the motion is denied, while the inconvenience and loss to the opposing party will be inconsiderable and may well be indemnified by proper bond if the injunction is granted.
    5. Injunction, § 158*—what is object of preliminary injunction. The object of a preliminary injunction is to maintain the status

      quo to maintain property in its existing condition, to prevent further or impending injury and not to determine the right itself.

      Jones, Addington, Ames & Seibold, for appellants; Keene H. Addington, Albert F. Mecklenburger and Walter Hamilton, of counsel.
    Theodore Forby and C. P. Barnes, for appellees; Samuel W. Packard, of counsel.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

6. Injunction, § 154 —when mandatory injunction not granted on preliminary hearing. Great caution should be used in issuing a mandatory injunction at a preliminary hearing and the complainant must make out a clear case free from doubt or dispute as a basis for its issuance.

7. Injunction, § 154*—when preliminary injunction will not be issued. When the question of law is one of the chief issues to be determined on the final hearing, and complete relief can then be afforded, the complainant is not entitled to a preliminary injunction.

8. Injunction, § 240*—when mandatory injunction granted on final hearing. Where, on a final hearing a mandatory injunction is asked, it is the duty of the court to consider the inconvenience and damage that will, result to the defendant as well as the benefit to accrue to the complainant, by the granting of the writ, and where the defendant’s damages and injuries will be greater by granting the writ than will be the complainant’s benefits by granting the writ, or greater than will be complainant’s damages by the refusal of it, the court will, in the exercise of a sound discretion, refuse the writ.

9. Injunction, § 154*—what does not constitute irreparable injury authorizing issuance of temporary injunction. The maintenance of an ordinary drug store and physician’s office in the City of Zion during the pendency of a suit for an injunction, in violation of restrictive covenants, does not constitute such a threatened mischief and injury as should be held irreparable in passing on a motion for a temporary injunction.

10. Injunction, § 154*—when temporary injunction is in nature of mandatory injunction and improper. An order restraining the use of a building for an ordinary drug store and physician’s office in a city during the pendency of a suit, in violation of restrictive covenants, is in the nature of a mandatory injunction granting the relief sought by the bill in advance of a hearing on the merits, and should not be granted.


text:
    Witteman Company, Defendant in Error, v. Frank A. Goeke et al., Plaintiffs in Error.
    Gen. No. 6,134.
    1. Appeal and error, § 623

      —what is effect of one defendant dying pending appeal by other defendants. Where one of several defendants dies pending the appeal hy other defendants and the death of the deceased is suggested, the suit may proceed without further action by appellants as to such deceased defendant or his representatives.
    2. Appeal and eebob, § 801*—when ruling of court striking amended special plea from files not reviewed. A ruling of the court striking an amended special plea from the files cannot be reviewed in a court of appeal unless the pleading and the showing and the ruling are preserved in a bill of exceptions.
    3. Appeal and eebob, § 1275*—when presumed court properly struck amended special plea from files. In the absence of a bill of exceptions, it will be presumed that the trial court properly struck from the files an amended special plea.
    4. Pleading, § 379*—when issue formed. Where a special count in a declaration against the guarantors on a promissory note was met by a plea of nonassumpsit, to which was filed a proper replication, held that the case was at issue.
    5. Appeal and eebob, § 1275*—when presumed that proofs justified finding and judgment. Where the proofs heard upon a trial are not preserved by a bill of exceptions, it must be conclusively presumed that the proofs justified the finding and the judgment.
    6. Pleading, § 379*—when oral issue formed by parties voluntarily going to trial. Where parties voluntarily go to trial without the formation of a written issue, the case is treated as if an oral issue was formed.
    7. Guabanty, § 30*—when executrix not proper party to action against joint guarantors of note. Where a suit is brought against several persons on a guaranty, including the executrix of a deceased guarantor, the suit is properly dismissed as to the executrix, as the cause could not proceed against them jointly.
    8. Appeal and eebob, § 1452*—when failure to amend declaration by striking out name of defendant dismissed from case not reversible error. Where a suit was brought on a guaranty against several persons jointly, including the executrix of a deceased guarantor, the fact that, upon dismissing the case as to the executrix the declaration was not amended by striking out her name as a defendant, held not reversible error.
    9. Guaranty, § 39

      —when joint judgment lies only against living guarantors. In an action against several guarantors of a promissory note including the executrix of a deceased guarantor, a joint judgment can be rendered only against the living guarantors.
    Error to the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    J. C. Murphy and E. L. Lyon, for plaintiffs in error.
    J. M. Manley, for defendant in error.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This is a suit by the Witteman Company, hereinafter called plaintiff, against certain guarantors of a promissory note. After certain pleading a jury was waived and the cause was tried and there was a finding and a judgment against four of the defendants for $2,752.75, and two of the defendants have sued out this writ of error to review said judgment. Another defendant has appeared and adopted the assignments of error by said original plaintiffs in error. The death of the fourth defendant has been suggested here. Plaintiffs in error have not brought in his legal representatives or heirs at law. We assume that under Fortune v. Gilbert, 210 Ill. 354 (which was a writ of error in the Supreme Court), the suit may proceed here without further action as to said deceased defendant or his representatives or heirs. There is no bill of exceptions in the record. The attorneys who prosecute the writ of error say they were not in the case in the court below.

The record here is certified to be complete, but it does not disclose such a condition as defendants claim in their brief. Plaintiff filed a special count upon the guaranty sued upon and the common counts. Defendants filed a plea of the general issue to the special count of the declaration and a special plea to the entire declaration. To this special plea a demurrer was sustained. Defendants did not abide by that special plea but obtained leave to file an amended special plea. Counsel for defendants state that plaintiff filed a demurrer to said amended special plea; that it was sustained; that defendants then obtained leave to file a second amended plea and did file the same; that plaintiff filed a demurrer thereto; that the demurrer was sustained and the second amended special plea was stricken from the files. This is a misstatement of the record. An amended special plea was filed. It was not demurred to, but a motion was made to strike it from the files and that motion was granted. No question arises here upon the original special plea because, by filing by leave of court an amended special plea, defendants abandoned the original special plea. No question arises upon the amended special plea because it was ndt demurred to, but was stricken from the files, and no bill of exceptions was taken, preserving said amended plea and the showing that was made upon the motion to strike it from the files nor the ruling of the court thereon. In this State a ruling of the court striking a pleading from the files cannot be reviewed in a court of appeal unless the pleading and the showing and the ruling are preserved in a bill of exceptions. In the following cases a pleading had been stricken from the files and the rule just stated was applied: Snell v. Trustees M. E. Church, 58 Ill. 290; Barger v. Hobbs, 67 Ill. 592; Reed v. Horne, 73 Ill. 598; Harms v. Aufield, 79 Ill. 257; Fanning v. Russell, 81 Ill. 398; Consolidated Coal Co. of St. Louis v. Peers, 166 Ill. 361; Gaynor v. Hibernia Sav. Bank, 166 Ill. 577; Nester’s Estate v. Carney Bros. Co., 98 Ill. App. 630; Ackerman v. People, 100 Ill. App. 125. In Town of Scott v. Artman, 237 Ill. 394, the same principle was applied to a special statutory proceeding in which the separate answer of one defendant had been stricken from the files, and that action was assigned for error. In some of these cases stress is laid upon the proposition that an ■exception to the ruling of the court must be preserved by a bill of exceptions in order to present the matter for decision. That particular matter has been obviated by section 81 of the Practice Act, as amended in 1911 (J. & A. ¶ 8618). But the other cases show that that is not the only purpose for which a bill of exceptions is necessary in order to present such an order for review. A pleading which has been stricken from the files is no longer a part of the common-law record and can only be brought to the attention of the upper courts by a bill of exceptions. Such a motion is not based upon any defect of the pleading which could be reached by demurrer, but upon other grounds, and the parties have a right to offer proofs by affidavit or otherwise, and without a bill of exceptions it cannot be known whether the proofs justified the order. Unless those proofs are preserved by a bill of exceptions, the order must be presumed to be correct. It was said in Fanning v. Russell, supra: “It will not be denied that cases may occur where such an order would be proper. There being no bill of exceptions to show the contrary, this court will presume that a proper case for such an order was made before the Circuit Court.” In Consolidated Coal Co. of St. Louis v. Peers, supra, the court said: “There are some circumstances under which the court may properly strike a plea from the files—and this even when it presents a good defense to the action; and therefore, when the record does not show upon what ground the action of the court was based, it will be presumed, in favor of the ruling of the court, that sufficient cause to justify its action was made to appear.” In Gaynor v. Hibernia Sav. Bank, supra, it was said of Fcmnvng v. Russell, supra: ‘ ‘ In the last case it was said that the pleas stricken from the files presented on their face a good defense to the action, but as a case might occur where an order striking them from the files would be proper, it would be presumed, in the absence of a bill of exceptions, that a proper case for such an order was made.” Upon this record it is therefore presumed that the court properly struck from the files the amended special plea, and neither the original nor the amended special plea are therefore before this court for review, and the supposed history of the case, set out quite fully in defendant’s brief, has no basis in the record before us.

Counsel for defendant insist that there is in this record no general issue, and no issue joined or to be tried, and that all that was or could have been heard was an assignment of damages upon a default. The record is entirely to the contrary. The first plea is to the effect that the defendants named therein (being all the defendants except the defendant Bathbun, hereinafter named), come “and defend the wrong and injury, when, etc., and say that they did not promise in manner and form as the plaintiff has above thereof complained against them in and by the special count of the declaration; and of this the said defendants put themselves upon the country.” To this plea appellee replied as follows: “And the plaintiff as to the plea of the defendants to the common counts of the declaration, and as to the plea of the defendants to the special count of the declaration by them first above pleaded, and whereof they have put themselves upon the country, doth the like.” There is no formal plea to the common counts in the record before us. There was an order of court which found that the pleadings had been lost and gave leave to supply them, and it therefore may be that there was such a plea to the common counts which was lost and not supplied, but this is a perfect replication to the plea of nonassumpsit, filed to the special count of the declaration, and it forms a complete issue. Thereafter an order to the following effect was entered on the day of the trial and judgment: ‘‘ And now by agreement of parties hereto it is ordered by the court that a jury be and the same is hereby waived herein and the issues in this cause submitted to the court for trial to be heard instanter.” Here follows the usual order, showing the trial of the cause and the finding and the judgment of the court. It does not admit of doubt that according to this record the issues so submitted and tried were made up of the special count of the declaration upon said guaranty, the plea of the general issue thereto and said replication to said plea. As the proofs heard upon said trial are not preserved by a bill of exceptions, it must be conclusively presumed that the proofs justified the finding and the judgment. It ought also to be said in this connection that the sole object of said attempted special pleas was to set up that these guarantors were released by a valid extension of time to the maker of the note on the back of which the guaranty in suit was written, and that it is held in Harrison v. Thackaberry, 248 Ill. 512, and in many cases there cited, that such an extension releasing the surety may be given in evidence under the general issue. Therefore, upon this. record, it is conclusively presumed that the defendants had a fair opportunity to prove that defense.

This record does not show a plea to the common counts. It is argued that it was error to go to trial without an issue having been formed upon them. There might be force in this position if the court had compelled defendants to go to trial without issue being joined thereon, but the record above recited shows that defendants were not forced to trial but voluntarily went to trial by agreement. It is well settled in this State that when parties voluntarily go to trial without the formation of a written issue, the case is treated as if an oral issue had been joined. Strohm v. Hayes, 70 Ill. 41; Shreffler v. Nadelhoffer, 133 Ill. 536, 547; Kaestner v. First Nat. Bank of Chicago, 170 Ill. 322; Devine v. Chicago City Ry. Co., 237 Ill. 278; Supreme Court of Honor v. Barker, 96 Ill. App. 490; Anderson v. Patty, 168 Ill. App. 151; Ryan v. McGirr, 168 Ill. App. 415. Moreover, if the course pursued should be treated as an abandonment of the common counts by plaintiff, no harm would be done defendants, because upon the record the judgment is conclusively presumed • to be correct upon the issues which were joined in writing.

The guaranty was signed by five persons, one of whom (Eathbun) had died before the suit was begun, and his executrix was named as a codefendant with the guarantors still living. Afterwards the suit was dismissed by plaintiff as to said executrix, although this was omitted from the abstract. The judgment was against the four living guarantors. The cause could not proceed against them and the executrix jointly, because a judgment at law must be a unit (Jansen v. Varnum, 89 Ill. 100), and the judgment against them would be for the payment of a sum certain with execution against their lands and goods, whereas a judgment against the executrix would be that she pay the amount in due course of administration. She could not have been joined as a defendant, and her dismissal was necessary and proper, and it was proper to take judgment against all the living guarantors. It was also necessary and proper to allege in the special count that Eathbun signed the note and that he had since died, and the further allegation that an executrix had been appointed was mere surplusage. Plaintiff might well have amended the declaration by striking out her name as a defendant when it dismissed her out of the case, but the fact that such an amendment was not made did not harm the other defendants, and in our judgment Was not reversible error.

The cost of the additional abstract will be taxed against appellants. The judgment is affirmed.

Affirmed.


text:
    Christine L. Palm, Appellant, v. Rockford City Traction Company, Appellee.
    Gen. No. 6,144.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Carriers, § 476

      —tohen eridence insufficient to establish negligence in operation of street car. In an action by a street car passenger to recover damages for injuries alleged to have been sustained as the result of the negligence of the conductor in permitting the exit door of the car, which was of the pay-as-you-enter kind, to remain open while the car was in motion, so as to lead plaintiff into the belief that she could safely alight, where it appeared that' plaintiff gave the signal to stop, and that she immediately followed two men, one of whom had opened the exit door, and that she was warned by the conductor not to get off, and that he could not close the door after the men who had passed out because plaintiff was in the way, evidence held insufficient to establish negligence in operation of the car.

      Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Statement of the Case.
    Action by Christine L. Palm, plaintiff, against Bock-ford City Traction Company, defendant, to recover damages for personal injuries sustained by falling from the step of defendant’s street car. From a judgment for defendant upon a directed verdict, plaintiff appeals.
    Fisher & North, for appellant.
    B. K. Welsh, for appellee.

      See Dlinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

2. Carriers, § 476 —when evidence sufficient to establish that passenger leaving street car while it was in motion was guilty of contributory negligence. In an action by a street car passenger to recover damages for personal injuries sustained as the result of stepping from the exit door of a pay-as-you-enter car while it was in motion, where it appeared that plaintiff gave the signal to stop and immediately followed two men, one of whom opened the exit door, and either did not hear or disregarded the warning of the conductor not to get off, and the latter was unable to close the door because plaintiff was in the way, evidence held sufficient to establish that plaintiff was guilty of contributory negligence.


text:
    James M. Swan, Defendant in Error, v. William K. Loofbourrow, Plaintiff in Error.
    Gen. No. 6,147.
    (Not to be reported in full.)
    Error to the Circuit Court of Kendall county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Rehearing denied April 6, 1916. ■
    Statement of the Case.
    Action by James M. Swan, plaintiff, against William K. Loofbourrow, defendant, to recover upon two notes. After judgment by default for plaintiff and denial of a motion by defendant to set aside the default, defendant brings error.

      Abstract of the Decision.
    1. Judgment, § 145

      —when affidavit in support of motion to set aside default insufficient to show defense. An affidavit of meritorious defense in support of a motion to set aside a default in an action on two promissory notes which related to “this note,” without indicating which note was meant, and alleged that the note was given in compliance with a contract for the exchange of lands, but did not give the terms of the contract nor state with whom it was made, but stated that plaintiff did not comply with his part of the contract and that, because of his failure to do so, plaintiff had not received any consideration “for the above mentioned note,” and denied that he was indebted to plaintiff in any amount, but did not disclose what plaintiff was required to do by the contract nor that he in any respect failed to comply therewith, held to state a mere conclusion and to be insufficient to show a defense to either note.
    2. Judgment, § 145*—when affidavit in support of motion to set aside default insufficiently discloses right of set-off. An affidavit of meritorious defense in support of a motion to set aside a default in an action on two promissory notes, which stated that plaintiff was indebted to affiant in a certain sum but which did not disclose how the indebtedness arose nor what the facts were, held to state a legal conclusion and to be insufficient to show the right of set-off.
    3. Judgment, § 153*—when default not vacated to let in plea of set-off. As a general rule a default will not be vacated on affidavits merely to let in a plea of set-off, as the defendant has a perfect remedy by bringing suit, against the plaintiff on the set-off.
    4. Appeal and ebbob, § 413*—when question as to insufficiency of sheriffs return upon summons not considered on appeal. A defendant who enters his appearance to make a motion to set aside a. judgment by default cannot raise* for the first time on appeal the question as. to a.defect in the return of the sheriff upon the summons.
    Benjamin F. Herrington, for plaintiff in error.
    C. A. Darnell, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same ' topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.


text:
    W. D. Chemical Company, Appellant, v. Walter Teel, Appellee.
    Gen. No. 6,165.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Payment, § 6

      —when giving of note for pre-existing indebtedness constitutes payment. The making a note for a pre-existing debt constitutes payment thereof where it is expressly agreed that it shall be in payment of the debt and the creditor subsequently sells the note to a third person.
    2. Payment, § 29

      —when evidence insufficient to establish that note given in payment of debt was a forgery. In an action for the purchase price of merchandise under a contract, where it appeared that a note given in payment of the debt was transferred to a third person and suit brought against defendant, in which defendant pleaded the general issue, forgery and another special «plea, and a verdict of no cause of action was rendered in defendant’s favor, and defendant could have proved several defenses under the issues, including that of forgery, in the absence of proof as to what particular defense was relied upon in the suit on the note, evidence held, insufficient to sustain a finding that the jury found in the trial of the suit on the note that it was a forgery.

      Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Rehearing denied April 6, 1916.
    Statement of the Case.
    Action by W. D. Chemical Company, plaintiff, against Walter Teel, defendant, on a written contract for the purchase of merchandise. From a judgment for defendant plaintiff appeals.
    Keithley & Keithley, for appellant.
    C. N. Barnes and Shelton McGrath, for appellee.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same ¿opio and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

3. Trial, § 68*—when offer of proof insufficient. An offer of proof which does not disclose what the answer is expected to be is insufficient.


text:
    June E. Mills, Appellee, v. Village of Oquawka, Appellant.
    Gen. No. 6,167.
    (Not to Tbe reported in full.)
    Appeal from the Circuit Court of Henderson county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Statement of the Case.
    Action by June E. Mills, plaintiff, against Village of Oquawka, defendant, to recover damages .for personal injuries due to falling through a defective wooden portion of a brick sidewalk into a cellar. From a judgment for plaintiff for $2,000, defendant appeals.
    On May 16,1914, the husband of June E. Mills occupied a part of the Graham building in the Village of Oquawka, in Henderson county, as a bakery. There was a brick sidewalk, ten or twelve feet wide, in front of this building, and at one time there had evidently been a stairway leading from this sidewalk down to a cellar underneath, but its use for such a purpose had been abandoned many years before the date named, the stairs had been removed, and the opening in the sidewalk leading to the stairs had been covered with the wooden door. On the evening of the day in question a wheelbarrow was standing on this wooden door, having been left there by Mills, as he intended to use it during the night for the purpose of transferring bread to the depot for shipment on an early morning train. Between seven and eight o’clock that evening several persons were sitting on that wheelbarrow, when the wooden door gave way and they were all precipitated into the cellar. The evidence shows that June E. Mills, who was one of those thrown into the cellar, was quite seriously injured.
    At least two years before this accident, a member of the village board put the .end of his cane through a rotten hole in one of the planks composing this wooden cover, and in spite of his knowledge of the condition of this part of the public sidewalk, he testified that to his knowledge the place had never been repaired while he was on the board nor up to the time of the accident. Other witnesses testified to an entire lack of repairs on this place for nineteen years or longer. Certain pieces of timber were admitted in evidence and identified by at least one witness as being' part of the supports of this wooden cover. These timbers were rotten. Other evidence was introduced to show that this wooden portion of the walk was in an unsafe condition for public travel. The evidence further showed that the city had been notified of the condition of this walk by complaint to the mayor or president of the village board with a request from plaintiff that the walk or that portion of it be condemned and removed. This complaint was ignored, apparently without any investigation on the part of the village officials.
    There seemed to be no question but that plaintiff was injured by her fall. She complained of an injury to her arm and neck and she suffered a miscarriage shortly after the accident. She was under the care of two physicians for a considerable time after the accident.
    James W. Cordon and Scofield, Helfrich & Califf, for appellant.

      Abstract of the Decision.
    1. Municipal corporations, § 1098

      —when evidence sufficient to sustain finding that city guilty of negligence in failing to inspect sidewalk and wooden supports. In an action against a city for damages for personal injuries due to the falling in of the wooden portion of a brick sidewalk over an old cellar, while plaintiff was sitting with others on a wheelbarrow located on such portion of the sidewalk, evidence held sufficient to sustain a finding that defendant was guilty of negligence, not only in failing to inspect the sidewalk but also the supports underneath the sidewalk.
    2. Municipal corporations, § 1063*—when person sitting on wooden walk of which complaint was made to city not guilty of contributory negligence. One who makes a complaint to a city of the defective condition of .a hoard walk over an old cellar is not guilty of contributory negligence in sitting upon a wheelbarrow situated on such walk with. others where she has no knowledge of the defective condition of the supporting timbers, which gave way and precipitated her into the cellar.
    3. Appeal and error, § 1241*—when party procuring instruction and offering refused instruction may not complain of similar instruction for adverse party. A party procuring' an instruction and profferring another instruction which is refused, both of which are similar to another instruction given for the adverse party, may not complain of such instruction given for the adverse party.
    4. Municipal corporations, § 1101*—when requested instruction in action for negligent injuries from defective sidewalk properly refused as inapplicable to facts. In an action for damages for personal injuries sustained as the result of the falling of a board portion of a brick sidewalk over an old cellar, while plaintiff with five other persons were sitting on a wheelbarrow on such board portion of the sidewalk, a requested instruction that-if the jury believed from the evidence that this portion of the sidewalk broke because six people were on it then there could be no recovery, held correctly refused as being inapplicable to the facts.
    5. Municipal corporations, § 995*—when wooden sidewalk sufficient. A wooden sidewalk should be in such condition that if people stood on every portion of it they would be supported.
    Hartzell & Cavanagh, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

6. Damages, § 114*—when verdict for personal injuries to woman not excessive. A verdict for $2,000 in favor of a woman who complained of an injury to her arm and neck and who suffered a miscarriage, and was under the care’ of two physicians for some time after the accident, held not excessive.