text:
      Streator Independent Telephone and Telegraph Company, Appellant, v. Interstate Independent Telephone & Telegraph Company et al., Appellees.
    Gen. No. 4,964.
    1. Appeals and ebbors-when motion to dismiss not essential to raising of jurisdictional question. If a freehold is involved, the Appellate Court will dismiss an appeal notwithstanding no motion to dismiss has been interposed.

      2. Appeals and ebrobs—definition of freehold as used in statute defining jurisdiction of the appellate tribunals. The word “freehold” in the statute relating to appeals and writs of error is used in the sense as defined by the common law. It does not include a mere right to that which in equity will entitle a party to a freehold.
    3. Appeals and errors—when freehold not involved. Held, that a freehold was not involved in a proceeding in equity by one telephone company against another, to prevent interference with wires strung upon poles, the relation of the parties being that of licensees mutually to use the poles of each other for stringing wires, which wires were to remain the property of the party installing the same.
    4. Injunctions—when relief against breach of contract will not be granted. If the relief sought by injunction amounts to a negative specific performance of a contract, it will be denied where the terms of such contract are indefinite and uncertain; likewise, it will be denied if such contract is not proven with that degree of satisfaction which the law requires.
    5. Statute of frauds—when agreement within provisions. Held, that the agreement involved in this case, namely, one to utilize telephone poles, etc., was indefinite, uncertain, and being oral in character was within the Statute of Frauds.
    6. Contracts—when parol license revocable at will. Held, that a (parol license to use telephone poles, etc., which did not include a grant for a specific period was revocable at the will of the licensor.
    Bill in equity. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Statement by the Court. This is a hill in equity brought June 15, 1907, by the Streator Independent Telephone and Telegraph Company against the Interstate Independent Telephone and Telegraph Company, Henry H. Evans and Edward E. Conklin in the Circuit Court of La Salle county for an injunction. The facts in the bill, so far as they need be stated are these: Both the complainant and defendant companies are corporations organized under the laws of New Jersey and doing business in La Salle and adjoining counties in Illinois. The complainant company, in May, 1905, bought and entered into possession of all the property, rights, poles, franchises, etc., of the Streator Independent Telephone Company, which will hereafter be called the Streator Company, a corporation organized under the laws of the State of Illinois and doing business in said La.Salle and adjoining counties, prior to and at the time of said sale to the complainant company. The Streator Company, in 1904, and the early part of 1905, was the owner of lines of poles and wires strung thereon extending from the city of Streator in different directions for several miles. Among the other lines so owned by it was a line used by it extending east from the intersection of Main and Bloomington streets in the city of Streator, five and one-fourth miles, and a line extending in a southeasterly direction from that city to the village of Cornell in Livingston county. While the Streator Company was the owner of the said described lines, the defendant company was erecting a line of telephone poles through a part of La Salle county entering that county on the east side thereof, directly east from the city of Streator, with the purpose of extending its lines through La Salle county and to points farther south and west from the city of Streator. It is alleged that the defendant company proposed to the Streator Company to use the right of way of said Streator Company, and that if it would permit the defendant company to use the right of way of said Streator Company, from a point about seven miles east of the intersection of said Main and Bloomington streets in Streator to a point three miles east of such intersection, and also to use the right of way of said Streator Independent Telephone Company for a distance of about one and one-fourth miles on the county line between La Salle and Livingston counties on its right of way from Streator to the village of Cornell, that the defendant company would strengthen the line of said Streator Company for a distance of four miles by putting in new poles of heavier weight and size, interspersing them with the poles of the Streator Company, and replace the poles on the county line for the distance of one and one-fourth miles, by putting in longer and stronger poles, and said companies should have a joint user of so much of the right of way as above stated, and in addition thereto the said Streator Company should be permitted to use, in connection with the defendant company, the “latter’s pole line extending southwest from Streator for a distance of several miles, in order to serve the patrons of the Streator Independent Telephone Company around about and within the reasonable and legitimate territory connected with the city of Streator, and other rights and privileges to be given to the Streator Independent Telephone Company.” The bill further alleged that the Streator Company accepted said proposition and that the defendant company entered into the joint use of the right of way of the Streator Company, as hereinbefore set forth, and made certain improvements by way of setting additional poles on that part of the right of way of the Streator Independent Telephone Company above set forth, and thereafter the said defendant company and said Streator Company used said poles and cross-arms for the accommodation of the wires belonging to said companies respectively. It is alleged that in May, 1905, the Streator Company sold all its property rights, poles, franchises, etc., to the complainant and that complainant entered into possession of said property and is using and operating said plant; that complainant is the owner of the franchise and right of way over the route and distance herein-before set forth, which are now jointly used by complainant and the defendant company, and also a part of the poles constituting the line on said premises; that the defendant company enjoys the joint use of said premises with complainant by virtue of the agreement above set forth; that pursuant to said arrangement, the defendant company was permitted to place a line of four wires from the point three miles east of Streator into Streator upon the poles of complainant to within one hundred feet of the office of complainant, and there connect with lines leading into complainant’s office, where an interchange of business is conducted. It is further alleged that in December, 1906, the defendant company made known to complainant that it claimed to be the owner and in possession of the telephone line, hereinbefore set forth, as used jointly by said companies, and demanded of complainant that it should pay a large rental for the use of said line, and afterwards, on March 1, 1907, said defendant company served a notice in writing upon complainant, demanding that complainant remove all its cross arms, pins, wires and other fixtures placed upon the poles in the line used jointly by the said companies within ninety days, and in case of failure of complainant to remove them said defendant would cause them to be removed without further notice; that on May 28, 1907, the defendant company orally extended said notice until June 15, 1907; that complainant fears defendant company will carry out its threats and if the same is done it will cause irreparable damage to complainant; the bill prays that the defendant company be restrained from interfering with the poles, wires, and fixtures now on the telephone line used jointly by said parties. The notice served by defendant company on complainant, March 1, 1907, is attached and made part of the bill and particularly describes the portions of the telephone lines as:
    “Our entire line on the south side of Section thirty-one (31) Otter Creek Township, La Salle county, Illinois. Our entire line on the east side of Section one (1) and on the north side of the highway running through Section one (1) from east to west, and on the east side of Section eleven (11) and on the east and south side of Section fourteen (14), on the west side of Section twenty-three (23) and the north side of Section twenty-seven (27), twenty-eight (28), twenty-nine (29), and thirty (30), Beading Township, Livingston County, Illinois. Also all our private right of way extending from a point on the highway running east and west through Section One (1), Beading Township, Livingston County, where the Santa Fe Bailroad intersects said highways, thence south across the Vermilion river to the public highway on the east side of section Eleven (11), Beading Township, Livingston Count;7, Illinois. Also, our line commencing at a point nine (9) poles east of the northwest corner of Section Thirty-five (35), Otter Creek Township, La Salle County, Illinois, thence east to the southwest corner of Section Twenty-eight (28) Allen Township, La Salle County, Illinois.”
    The defendants' answered the bill, specifically denying every material allegation of the bill except the incorporation of complainant and its grantor. The defendants state that the Conklin Construction Company, the contractor engaged in constructing lines of poles and wires under contract for the defendant company, made an arrangement for temporary joint use of a line of poles on the highway running east from the intersection of Main and Bloomington streets in the city of Streator to a point three miles east of said intersection, and that from said point three miles from said intersection, the Conklin Construction Company reconstructed and straightened the line of poles, which the Streator Company claimed to own, for a distance of two miles further east, and from the east end of said two miles the line eastwardly was entirely constructed by defendant company; that the line of poles on the county line between La Salle and Livingston counties is but one mile, and over that mile the defendant company built its own line of poles and wires on the same side of the highway occupied by complainant upon the right of way owned and secured by defendant, and entered into no agreement with the Streator Company for the use of said mile of line, but state they are informed that the Conklin Construction Company permitted the Streator Company to transfer its wires from its poles to the poles of complainant'; that all the lines of defendant company south and west of a point three miles east of the intersection of Main and Bloomington streets in the city of Streator are upon the public highways, upon rights of way secured and owned by defondant company, and that there never was any agreement or contract, on the part of the defendant or by any one for it, for the use of defendant company’s poles or other fixtures by complainant west of a point on the county line road at the southeast corner of section thirty-one in Otter Creek Township; that all wires, strung by complainant on poles of defendant company south and west of the southeast corner of section thirty-one in said Otter Greek Township, and east of a point five and one-quarter miles east of the intersection of Main and Bloomington streets in the city of Streator, were strung without the knowledge, consent or permission of any of the officers of defendant company. The defendant company denies that any proposition for the joint use of right of way as alleged was made or accepted. The defendants admit that defendants did for temporary purposes set some additional poles and temporarily permitted the Streator Company to use defendant company’s poles as a temporary accommodation and license, but say no agreement or contract was made for any period. The defendants state that the right of way and poles set forth in said notice are the exclusive property of defendant company, and that complainant has no lease therein, and has never occupied the same except as a trespasser or temporarily by sufferance as a temporary accommodation, without any agreement or contract for any time whatever; that if any fixtures or attachments of defendant company are upon poles of the complainant not standing on defendant company’s right of way, they are ready and willing to remove them on notice; that defendant company is not claiming any contract right to use any of complainant’s right of way and is only seeking the removal of complainant’s attachment, etc., from the poles and lines of defendant company on its own right of way, which are its exclusive property, and deny that complainant is entitled to any part of the relief sought.
    A preliminary injunction having been issued, the defendants, after filing their answer, in which they prayed the same advantage of the answer as if they had demurred, entered a motion to dissolve the injunction. The motion to dissolve the injunction was heard upon the bill, answers and the affidavits filed by the respective parties, and an order was entered dissolving the temporary injunction. The complainant thereupon entered its motion to vacate the order dissolving the injunction, which motion the court granted. The case was thereupon heard on the bill, answers, motion to dissolve the injunction, with affidavits, and a second order dissolving the injunction was made, and a decree was entered dismissing the bill for want of equity at the cost of the complainant. From that decree the corn-plaintiff prosecutes this appeal.
    Reeves, Osborne & Griggs, for appellant.
    A. E. DeMange and R. C. DeMange, for appellees.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The Interstate Telephone and Telegraph Company is the only appellee who has appeared in this court and will hereinafter be the only appellee referred to. The appellee has not made any motion to dismiss this appeal for want of jurisdiction in this court, but has presented the question whether or not a freehold is involved in his controversy. If a freehold is involved this court has no jurisdiction to pass upon the merits of the case.

It is conceded by all parties that appellee is the owner of substantially all the right of way and telephone poles involved in this suit, and the appellant claims a right to have its cross-arms, wires and other fixtures attached to the poles on the right of way owned by the appellee. This claim is based upon an oral contract for an exchange of similar privileges given to appellee on the poles and right of way of appellant. The poles of a telephone or telegraph line are real property, except for the purpose of taxation, or where they preserve the character of personal property by contract between the parties. Shelbyville Water Co. v. People, 140 Ill. 545; Union Trust Co. v. Weber, 96 Ill. 346; 27 Am. & Eng. Encyc. of Law (2nd ed.) 1004; Cook on Corporations, Vol. III, Art. 941; Consolidated Gas Co. v. Mayor of Baltimore, 1 L. R. A. (N. S.) 263; Western Union Tel. Co. v. Penn. Co., 129 Fed. R. 867, note in 66 L. R. A. 56; Western Union Tel. Co. v. Burlington, etc., 11 Fed. B. 1. The right under the contract claimed by appellant to occupy permanently the poles of appellee by permanently attaching wires thereto, is in the nature of an easement. Western Union Tel. Co. v. Penn Co., 129 Fed. R. 867; American Tel. Co. v. Middleton, 80 N. Y. 408.

It was held in Lucan v. Cadwallader, 114 Ill. 285, and in Eckart v. Irons, id. 469, that a claim of an easement in the lands of another does not constitute a freehold in such lands. The rule laid down in these eases was modified in Chaplin v. Commissioners of Highways, 126 Ill. 264, so that the rule now is “a perpetual easement in lands, or any interest in lands in the nature of such easement, when created by grant, or by any proceeding in law equivalent to a grant constitute a freehold.”

“The term grant was anciently and in strictness of usage applied to denote the conveyance of incorporeal rights and is the appropriate word for that purpose. Such rights are said to be in grant and not in livery; for, existing only in idea, in contemplation of law they cannot be transferred by livery of possession. Of course, at common law, a conveyance in writing was necessary, hence they are said to lie in grant, and to pass by delivery of the deed.” Bouvier’s Law Dictionary, 900.

The word “freehold” in the statute relating to appeals and writs of error is used in the sense as defined by the common law. It does not include a mere right to do that which in equity will entitle a party to a freehold. Kirchoff v. Union Mut. Life Ins. Co., 128 Ill. 199. The relation between the parties is only that of licensees mutually to use the poles of each other for stringing wires which are to remain the property of the party putting up the wires. After the lapse of twenty years of uninterrupted enjoyment of such use, under a claim of right, a presumption of a grant might arise. We conclude that the claim of appellant, not being founded on a grant or any proceeding equivalent to a grant, although it partakes of the nature of an easement, does not involve a freehold, and that this court has jurisdiction.

The meritorious question presented relates to the equities which the complainant, appellant, is seeking to enforce against appellee, the Interstate Independent Telephone and Telegraph Company. Appellant does not claim that the appellee was about to interfere with any line owned and constructed by appellant, except on the mile line on the south side of section thirty-one, in Otter Creek Township, in La Salle county. All the other lines which appellee threatens to interfere with are lines of appellant placed upon appellee’s poles on appellee’s own right of way. Concerning the south side of section thirty-one in Otter Creek Township, the affidavits show that both appellant and appellee have a right of way on the south side of that section, and that appellant first constructed its line over that mile, and then the appellee came and placed a line of heavier and higher poles over the same line without interfering with appellant’s poles or lines, and thereafter the appellant removed its lines from its own poles and placed them upon appellee’s poles and removed its own poles from its right of way. Wherever the appellee has set its poles on the right of way of appellant, having no right of way of its own, or has intermingled its poles with the poles of appellant, and the poles of both companies are used, no purpose on the part of appellee of interfering with appellant’s lines and attachments is charged.

Edward B. Conklin is president and secretary of the appellee and was also manager of the Conklin Construction Company, which constructed the telephone lines for the appellee under a contract. There was some oral arrangement made by Conklin with appellant in reference to using the poles and right of way of appellant for five miles east of Streator, and both companies over that distance have their lines on the right of way of the appellant on poles, part of which have been erected by appellee, but there is no controversy over that part of the lines. The affidavits filed by the respective parties, as to whether there was or was not a verbal agreement between Conklin and the appellant, that appellant might use the poles of the appellee south and southwest of Streator and east of appellant ’s line five miles east of Streator, leave that question in doubt, although it would be a strange circumstance if so many miles of appellee’s poles could be used for the support of appellant’s lines without the knowledge of appellee. It is very clear, however, that there is no written contract between the parties, and no action was ever taken by the board of directors of either company agreeing to or ratifying what was either done or to be done regarding the stringing of appellant’s wires on appellee’s poles. The alleged contract, if one was made, was nothing more than an oral license. It was not made between appellant and appellee, but is claimed to have been made between appellee and the Streator Independent Telephone Company whose rights and franchises the appellant has since purchased. The bill does not allege any contract with sufficient certainty that a court could enforce it. The alleged contract being oral rests in the uncertain recollection of witnesses who differ as to what the arrangement was. The time it was to run was not mentioned. There is no arrangement as to the number of arms or wires, nor any provisions for the increase of business or whose wires should be above or below, or for the replacing of poles or repairs. The prayer of the bill is that appellee be enjoined from interfering with appellant in the performance of the contract. In substance it is that a breach of the contract be enjoined. “An injunction restraining the breach of a contract is a negative specific performance of that contract. The jurisdiction of equity to grant such injunction is substantially coincident with its jurisdiction to compel a specific performance. Both are governed by the same doctrines and rules.” South Chicago Ry. Co. v. Calumet Ry. Co., 171 Ill. 391; Pomeroy’s Eq. Jur., Sec. 134. Specific performance will not be decreed except upon clear and explicit proof leaving no room for reasonable doubt. C. & E. I. R. R. Co. v. Chipps, 226 Ill. 584. It is not sufficient to show that a contract of some kind exists but all its terms must be satisfactorily proved. Folsom v. Harr, 218 Ill. 369; Carson v. Davis, 171 Ill. 497. The terms of the alleged contract, the breach of which is sought to be enjoined, are very indefinite and uncertain and are not proved with that degree of satisfaction that the law requires.

The agreement alleged is an indefinite and uncertain oral license to use the poles and right of way of appellee. Such an agreement is within the Statute of Frauds and not being an agreement for a conveyance cannot be enforced in equity. It makes no difference that the licensee acting upon the strength of the parol license may have expended money and made valuable improvements on the faith of the license, yet the license is revocable at the will of the licensor, when the entry was not under an agreement for a conveyance. Entwhistle v. Henke, 211 Ill. 273, same case 113 Ill. App. 572, and cases cited; Nat. Stock Yards v. Wiggins Ferry Co., 112 Ill. 384. The foregoing rule is the law in this state, and if the agreement contended for were admitted, still appellee had the right to revoke it at any time and appellant would not be entitled to the relief sought. The Circuit Court properly dissolved the temporary injunction and dismissed the bill. The decree is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    Harry E. Carroll, Admr., Appellant v. Chicago, Burlington & Quincy Railway Company et al., Appellees.
    Gen. No. 4,973.
    1. Ordinary care-extent of, required of persons afflicted with infirmities. The misfortune of being blind or deaf does not relieve the afflicted person from the duty to exercise ordinary care, but rather imposes upon him the duty of greater precaution to avoid injury, since strangers have no notice of the infirmity, and have the right to suppose that parties will act the same as persons possessed of the ordinary senses.
    2. Contributory negligence-person walking along railroad track guilty of. A person killed by walking on a railroad track for his own convenience is guilty of such gross negligence as to preclude a recovery by his personal representatives against the company unless his death is caused wilfully or wantonly, or the company is charged with such gross negligence as is evidence of wilfullness.
    3. Trespassers-obligations of railroad companies to. The employes of a railroad company are under no obligation to keep a lookout for trespassers upon the right of way of a railroad and are not guilty of wilful or wanton negligence as agamst such trespassers for failing to do so.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Whiteside county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    C. L. Sheldon and C. C. Johnson, for appellant.
    A. A. Wolfersperger and Herbert Haase, for appellees.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action on the case brought in the Circuit Court of Whiteside county, by Harry E. Carroll, administrator of the estate of George H. Carroll, deceased, appellant, for the use of the next of kin, to recover damages from the Chicago, Burlington and Quincy Bailway Company and the Chicago, Burlington and Quincy Bailroad Company, appellees. The declaration contains two counts, substantially alike, and avers that on March 28, 1905, the plaintiff’s intestate was walking on the track of defendant companies from ' Polo, Ogle county, to Hazlehurst, Carroll county, Illinois ; that deceased was totally deaf, and that agents of the defendants at Polo had been notified that the deceased was so returning from said Polo and was totally deaf. It is further averred he was using due care for his own safety and that the defendants so recklessly managed and ran their train proceeding westward to Hazlehurst that the deceased was killed by the reckless and wilful conduct of the defendants. At the close of plaintiff’s evidence the court instructed a verdict for the defendants, and the administrator appeals.

The only question involved in this appeal is the propriety of the instruction to the jury to find for the defendants. The evidence shows that George H. Carroll, deceased, was about 71 years of age and lived at Hazlehurst ; that he was so deaf that a conversation could only be carried on with him by writing; that on the forenoon of the day of his death he went to Polo, six miles east of Hazlehurst, and was returning home alone, walking on the track of defendants’ right of way, about eleven o’clock in the forenoon, when he was killed by an extra freight train going in the same direction. It also appears from the evidence that Elsworth McCartney, with whom the deceased boarded at Hazlehurst, called up the agent of the defendants at Polo by telephone and described the deceased to the person who answered the telephone and asked him if such a person had left town going westward on their track, and was answered in the affirmative.' McCartney says that he told the person at the telephone that the man was deaf and could not hear anything, and that they would probably run bbn down, but got no answer. Levi Bellows, a farmer living near the railroad, five miles west of Polo, testified that he saw the train, consisting of ten or twelve cars, that killed the deceased; that it was running about fifteen miles an hour, and whistled about forty rods behind the deceased, and then whistled a second time about ten rods behind him, and that the deceased did not look around; that the train stopped when it had run about two-thirds of its length past the deceased.

Both counts of the declaration allege that the deceased was in the exercise of due care. The proof fails to show that the agent of the appellees had notice that the deceased was deaf, as there was no response to that part of the statement of the witness McCartney. There is no claim that any of the trainmen had any information concerning the infirmity of the deceased. The misfortune of being blind or deaf does not relieve the afflicted person from the duty to exercise ordinary care, but rather imposes upon him the duty of greater precaution to avoid injury, since strangers have no notice of the infirmity, and have the right to suppose that parties will act the same as persons possessed of the ordinary senses. 7 Am. & Eng. Ency. of Law 443 (2nd Ed.). The deceased in walking along the railway track of appellees was a trespasser. A person killed while walking on a railway track for his own convenience is guilty of such gross negligence as to preclude a recovery by his personal representatives against the company, unless his death is caused wilfully or wantonly, or the company is charged with such gross negligence as is evidence of wilfulness. James v. I. C. R. R. Co., 195 Ill. 327; Blanchard v. L. S. & M. S. Ry. Co., 126 Ill. 416; I. C. R. R. Co. v. Hetherington, 83 Ill. 510. It is manifest that the allegation that the deceased was in the exercise of due care was not proved, but that he was killed because of Ms own negligence.

The employes of a railroad company are under no obligation to keep a lookout for trespassers upon the right of way of a railroad, and are not guilty of wilful or wanton negligence, as against such trespassers, for failing to do so. Thompson v. C., C., C. & St. L. R. R. Co., 226 Ill. 543; C., C., C. & St. L. R. R. Co. v. Largent, Admr., 108 Ill. App. 650; C., C., C. & St. L. Ry. Co. v. Hibsman, Admr., 99 Ill. App. 405; C. & A. Ry. Co. v. Thompson, Admr., 99 Ill. App. 277. When the engineer blew the whistle forty rods from the deceased he had a right to assume that the deceased would leave the track, and when he did not leave the track the engineer again blew the whistle, and stopped the train when about half the length of the train, consisting of an engine and a dozen cars going down grade, had passed the deceased. This shows that the engineer was not guilty of wilful negligence, but used all the means at his command to avoid the accident, after seeing that the deceased paid no attention to the whistle. The proof not only fails to show that the conduct of the servants of appellees was wanton or wilful, but does show that the deceased lost his life because of his own want of ordinary care. The judgment is therefore affirmed.

Affirmed.


text:
      The Tokheim Manufacturing Company, Appellee, v. John Stoyles, Appellant.

      Gen. No. 4,977.

    1. Sales&emdash;in what state made. The acceptance of an order for merchandise in another state filled by the delivery of such merchandise to a carrier at a point in such state, such merchandise being billed to the consignee in this state, is a sale made in the sister state and not in Illinois.
    2. Wabbakty&emdash;when rescission for breach of, cannot be made. Where there is a warranty on sale of goods without fraud and the goods have been accepted and there is no stipulation in the contract that the goods may be returned, the vendee has no right to annul the contract, without the consent of the vendor, for a breach of warranty, but may in an action for the price recoup the damage sustained by reason of the breach of warranty.

      3. Appeals and ebbors—iy7m# essential to preserve for review rulings upon evidence. In order to preserve for review rulings of the court upon questions of evidence, the record should show a motion for a new trial, the action of the court in overruling the same and an exception thereto.
    4. Pleading—when special plea obnoxious to demurrer. When a special plea sets up matters of defense which are available under the general issue, such plea is obnoxious to a special demurrer.
    5. Pleading—when action of court in sustaining demurrer to special plea harmless error. Where all the evidence that was offered or could have been admitted under the special plea was admitted under the general issue, a ruling sustaining a demurrer to such special plea cannot be urged as ground for reversal.
    Assumpsit. Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grieb, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    McLaughlin & Hillyer, for appellant.
    Browne & Soule, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The Tokheim Manufacturing Company is a corporation organized under the laws of Iowa, and doing business at Cedar Bapids, Iowa. John Stoyles is a merchant doing business at Monmouth, Illinois. In June and July, 1906, the corporation manufactured and shipped to Stoyles some oil tanks and fixtures. Stoyles subsequently shipped the apparatus back, claiming it did not fulfill certain warranties. The corporation refused to receive it, and brought this suit in the Warren County Circuit Court, to the January term, 1907, against Stoyles to recover the contract price of the apparatus. The declaration consists of the common counts. The defendant filed the general issue January 11, and a special plea January 14, which was amended January 17, 1907. The plaintiff filed a demurrer both general and special to the special plea. The court made an order sustaining the special demurrer and overruled the general demurrer. The cause was then tried by a jury which returned a verdict for plaintiff for $100. The record written by the clerk shows that the court overruled a motion for a new trial and rendered judgment on the verdict. The defendant prosecutes this appeal.

It appears from the evidence that a traveling man took an order June 6, 1906, from appellant to appellee to manufacture the apparatus to recover for which this suit is brought. The appellee accepted the order in writing at Cedar Bapids, June 7, and appellee manufactured the apparatus and from there shipped it by railroad to appellant. The acceptance of the order, and the delivery of the goods to the railroad company at Cedar Bapids, billed to the appellant, was a sale to him at Cedar Bapids and not in this state. Carthage v. Duvall, 202 Ill. 234; Munsell v. Carthage, 203 Ill. 474; Bloomington v. Bourland, 137 Ill. 534; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; Brennan v. City of Titusville, 153 U. S. 289.

The appellant insisted, in his brief, that the court erred in sustaining an objection to his offer to show an attempt to return the apparatus to appellee. The proof is that the apparatus was shipped to the appellant. It was received by him and installed in his store at Monmouth, by a plumber engaged by him early in July. On August 8, appellant wrote appellee that the apparatus was fixed the way he wanted it. August 25th, appellant shipped the apparatus back to appellee, claiming it did not fulfill a warranty, but the appellee refused to receive it. Appellant did not undertake to prove any damages under the warranty. The contract of sale did not contain any agreement that the apparatus might be returned. Where there is a warranty on sale of goods, without fraud, and the goods have been accepted, and there is no stipulation in the contract that the goods may be returned, the vendee has no right to annul the contract without the consent of the vendor for a breach of the warranty, but may in an action for the price recoup the damage sustained by reason of the breach of warranty. Doane v. Dunham, 65 Ill. 512; Diversy v. Kellogg, 44 Ill. 114; Owens v. Sturges, 67 Ill. 366; 30 Am. & Eng. Encyc. of Law, 190 (2nd Ed.). If this question was properly before us still there was no error in refusing to permit a return of the apparatus to be shown.

The bill of exceptions does not show that any motion was made at the close of all the evidence to exclude the evidence and for a peremptory instruction in favor of ■ the appellant, neither does it show what verdict was returned, nor that any motion for a new trial was made, or that such a motion was overruled or that an exception was taken to the overruling of such motion.

A motion for a new trial becomes a part of the record only when incorporated in the bill of exceptions, but not when it appears only in the transcript of the proceedings as certified to by the clerk. An exception, in a bill of exceptions, to overruling a motion for a new trial is necessary, in a case tried by a jury, to authorize an appellate court to review questions involving the admission or exclusion of evidence or the sufficiency of the evidence to support the verdict. ' Chicago, Burlington & Quincy R. R. Co. v. Haselwood, 194 Ill. 69, and cases therein cited; Garthwait v. Board of Education, 117 Ill. App. 59; Derby v. Peterson, 128 Ill. App. 494. It follows from the rule announced in these authorities, that the rulings of the trial court on the admission of evidence or the sufficiency of the evidence to support the verdict are not properly before us for review. “Errors of the court in rulings as to the admissibility of evidence constitute grounds for a new trial. It is the duty of litigants to seek this mode.of relief in the trial court, and resort to an appeal only in the event the trial judge erroneously refused to grant a new trial and such refusal is excepted to and the exception preserved.” Ill. Cen. R. R. Co. v. Johnson, 191 Ill. 594; C., B. & Q. Ry. Co. v. Haselwood, 194 Ill. 69; Call v. People, 201 Ill. 499; C. & E. I. R. R. Co. v. Schmitz, 211 Ill. 446, 457. The rule is otherwise in a case tried by the court. Climax Tag Co. v. American Tag Co., 234 Ill. 179.

The remaining question, before us, is the propriety, of the ruling of the trial court sustaining the special demurrer to the special plea. The declaration alleges that the plaintiff is a corporation and that defendant became indebted to plaintiff, October 1, 1906. The special plea averred “that the plaintiff is a corporation organized for profit under the laws of the state of Iowa, is not a railroad or telegraph company or any insurance, banking or loan business, that the goods, wares and merchandise for which this suit is brought were sold to the defendant in the State of Illinois and' by him bought of plaintiff within the State of Illinois, since January 1, 1902;” that the plaintiff had not, at the commencement of the suit, as by the statute provided, filed with the secretary of state its articles or certificate of incorporation nor a statement of its capital stock represented in Illinois or designated any officer on whom service could be had nor had the secretary of state issued a certificate entitling plaintiff to do business in this state, etc.

The only special ground of demurrer is, “That all the matters and things alleged in said plea can be shown by said defendant under his plea of the general issue heretofore filed herein as fully and with the same force and effect as under said plea. ’ ’ The record shows that the general demurrer was overruled and the special demurrer only’ was sustained. When a special plea sets up matters of defense which are available under the general issue such plea is obnoxious to a special demurrer. Cook v. Scott, 1 Gilm. 333; Abrams v. Pomeroy, 13 Ill. 133; Wiggins Ferry Co. v. Blakeman, 54 Ill. 201; Roosevelt v. Hungate, 110 Ill. 595.

All the evidence that appellant offered upon the question raised by the special plea was admitted. Since all the evidence that was offered or could have been admitted under the special plea was admitted under the general issue, the ruling sustaining the demurrer to the special plea cannot he urged as ground of reversal as the ruling in no way prejudiced the appellant. Hartford Fire Ins. Co. v. Olcott, 97 Ill. 439.

The plea also averred the goods were sold since January 1, 1902. The statute in regard to foreign corporations doing business in this state now in force went into effect July 1, 1905, and repealed all parts of the statute in force in 1902 in conflict with the present act. Under such circumstances it was not error either to sustain or overrule the demurrer.

The judgment is affirmed.

Affirmed.


text:
    Solomon Stoneking, Appellee, v. Dora Spurgeon Long, Appellant.
    Gen. No. 4,983.
    1. Pleading—when action of court in overruling demurrer waived. The action of the court in overruling a demurrer to a declaration cannot be assigned as error where the complaining party has pleaded to the declaration.
    2. Contracts—when severable. A contract by one party to sow and harvest corn, oats, etc., upon the land of another, held, severable with respect to the various grains involved.
    3. Contracts—when void for uncertainty. A contract to sow and harvest grain in shares, which provides for the division of the proceeds of the crop according to the market value or the average market value, is void for uncertainty if no time is fixed for the market price or for the average of the market price.
    4. Contracts—when parol agreement competent to affect sealed instrument. While a sealed executory contract cannot be modified by a parol agreement, yet if the parol agreement is executed and one of the parties has been led into a line of conduct prejudicial to his interest an estoppel arises in his favor.
    5. Contracts—remedy where one party has prevented the other from fulfilling. If a party to a contract is prevented from fulfilling the same, by reason of the wrongful conduct of the other party, he may consider the contract rescinded and sue for damages.
    C. Contracts—remedies of one party upon repudiation by the other. Where one party repudiates a contract and refuses longer to be bound by it, the injured party has an election to pursue either of three remedies: He may treat the contract as rescinded and recover upon a quantum meruit, so far as he has performed, or he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the' end of the time specified in the contract for performance, sue and recover thereunder, or he may treat the repudiation as putting an end to the contract for all purposes of performance and sue for the profits he would have realized if he had not been prevented from performing.
    Assumpsit. Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Vose & Creel, for appellant.
    Theodore B. Switzer and Neece & Elting, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Solomon Stoneking, appellee, brought suit February 12, 1906, in assumpsit in the Circuit Court of Warren county against Bora Spurgeon Long, appellant, to recover for labor performed in plowing for, planting and cultivating 119 acres of corn upon land owned by appellant. The declaration consisted of the common counts and several special counts. The first special count avers that the defendant was the owner of certain lands, describing them, and that in consideration that the plaintiff promised the defendant to cultivate and plant said land to corn, the defendant promised to pay the plaintiff one-half the average market price at Avon station for all corn raised, and set forth in liaec verba a contract in writing. It is averred that the defendant placed plaintiff in possession of said land and that plaintiff cultivated said land and would have delivered the corn, but was prevented by the defendant from so doing and that the defendant refused to permit plaintiff to complete said contract. It is further averred that the average market price of corn at Avon station was forty cents, and that by reason of the “premises the said defendant became liable to pay the plaintiff said price, less the gathering expense,” etc.

The other counts were somewhat similar, each averring that the plaintiff had fully performed his contract up to a certain period, when the defendant wrongfully prevented plaintiff from carrying out his contract, etc. The defendant pleaded the general issue with notice of set-off, a plea of the Statute of Frauds and a plea of the Statute of Limitation. On a trial before a jury at the January term, 1907, a verdict was rendered for plaintiff for $617.57. A motion for a new trial was granted. At a second trial at the January term, 1908, the jury returned a verdict in favor of plaintiff for $773.08. A motion for a new trial was overruled and the defendant prosecutes this appeal.

The first error argued is that the court erred in overruling the demurrer to the amended special counts of •the declaration. This error cannot be here insisted upon for the reason that the appellant abandoned the demurrer by pleading to the counts. J. A. & N. Ry. Co. v. Velie, 140 Ill. 59; Republic Iron & Steel Co. v. Lee, 126 Ill. App. 297.

The evidence discloses that the appellant, owning farm lands in G-reenbush township in Warren county, on August 15,1904, entered into a written contract with appellee concerning part of her land. The appellant, who had attended college, wrote two supposed duplicate copies of the contract, both under seal, in which the appellant is described as the party of the first part and the appellee as the party of the second part. The contracts were in fact not duplicates; they are in part in the form of an ordinary lease and pretend to lease certain lands to appellee, “from the time to begin, day of putting crops in until each successive crop is harvested,” but do not state for what year. By the contracts, certain parts of the lands described are to be sown to oats, other parts to rye, other parts are to be planted to com and other parts to remain in grass. Both copies of the contract recite that the party óf the first part is to receive all the corn in her cribs at Avon Station and all corn stalks; one copy recites she is to pay£ £ over scales one-half the market price. ’ ’ The other copy recites she is to pay £ 1 over scales one-half the average market price.” Both copies recite that appellant is to furnish all seed for oats and receive all straw; one copy states nothing about what is to become of the rye, the other states £ £ one half the rye is to be put in bin, ’ ’ without saying whose it is to be. One copy states £ £ Oats to be put in granary;” the other states, ££one-half of oats to be put in bin.” Neither contract states who is to receive all or half the oats or what is to become of the rye and hay. The proof further shows that the appellant planted corn on part of a quarter section of land that is not described in either contract. The appellee, using his own teams, with his two sons, planted and cultivated 119 acres to corn, on the land of appellant. Appellee’s proof was that in the spring of 1905, appellee told appellant that he would not have corn to feed his teams in the fall of 1905, and asked her to let him have corn to feed his teams from the corn raised on the premises, and she told him he could have it. This statement is denied by the evidence of appellant. It also appears from the evidence that the lands worked by appellee are not the identical lands described in the contract, but some of the land worked by him is not included in the contract. The evidence also shows that in the fall of 1905, the appellee gathered, as he claims with the agreement of appellant, some fifteen or sixteen bushels of corn to feed to his teams. The appellant, on October 4,1905, apparently because of the feeding of the sixteen bushels of corn, issued a distress warrant, and took possession of all the corn cultivated by appellee on her land, claiming $1,500 rent to be due her. Summons was issued in the distress suit returnable at the January term, 1906. The appellant took possession and gathered and appropriated to her own use all the corn on the premises. The corn was gathered over the entire period between October 4 and about a week before this suit was begun, it all being gathered before this suit was begun.

At the January term, 1906, the distress suit was dismissed at appellant’s cost. The allegation of the special counts of the declaration is that appellant, by her acts, prevented the appellee from completing his contract, and the evidence shows that the acts of appellant did prevent him from completing his contract of hiring, by wrongfully distraining, gathering and appropriating to her own use all the corn which had been cultivated by appellee, and that appellee has received nothing except sixteen bushels of corn for the work of himself, his boys and teams. It is contended, on behalf of appellant, that the contract being under seal, the agreement by appellant to sell appellee some of the corn for feed was an attempt to change the contract, and that could only be done by an instrument under seal. It is contended by appellee that the written contract is a divisible contract, the part for raising oats and rye being a lease, and that for cultivating the corn being a hiring. The latter was the view taken of the contract by the trial court, as appears from the second instruction given on behalf of the appellee. The fifth instruction asked by the appellant states “that the written contract offered in evidence by the plaintiff, is a contract for services in raising corn.” We think the court properly under the contention of both parties held the contract to be severable. There is also authority for such construction of the contract. Keeler v. Clifford, 165 Ill. 544. The two parts of the contract are contradictory, and both are very ambiguous and incomplete, if not unintelligible. It probably was the intention of the parties that the appellee was to have half the rye, oats and hay raised, although the disposition of the rye and hay is not mentioned, neither is any compensation for sowing, harvesting, etc., mentioned. Neither does the contract say what is to become of the oats, although one copy says half the oats are to be put in a bin, and appellant is to receive the straw, while the other says, “oats are to be pnt in granary.” The part of the contract referring to corn is entirely separate and calls for the planting of corn, on particularly described tracts of ground. What is intended to be paid for raising the corn cannot be arrived at from the copies of the contract. No time is fixed for the market price, or for the average of the market price. It cannot be ascertained from the contract whether the price is to be fixed at the date of the contract or the termination of the contract or an average of the two or an average of the price while the corn is being delivered. The contract would appear to be void for uncertainty. Canterbury v. Miller, 76 Ill. 355.

It is further true that while a sealed executory contract cannot be modified by parol agreement, yet if a new parol agreement is executed, and one of the parties has been led into a line of conduct prejudicial to his interest, an estoppel arises in his favor. If the sixteen bushels of corn were sold to appellee by appellant, to now permit appellant to say appellee has placed himself where he cannot complete his contract would be permitting appellant to take advantage of her own wrong. Warder, Bushnell & Glessner Co., v. Arnold, 75 Ill. App. 674.

It was a question for the jury to say under the evidence whether the sixteen bushels of corn were taken wrongfully or by agreement of appellant. The appellant failed in her distress suit. She apparently wrongfully and wantonly evicted appellee from his possession of the corn and appropriated the work of appellee, with that of his boys and teams, for the season. She alone, by taking the work away from him, is responsible for appellee not carrying out his contract. In such a state of facts he had the right to consider his contract rescinded and to sue for the value of his services. It is shown by different men who gathered the corn for appellant that she gathered 3,134 bushels, while there is proof that the yield of corn was between 4,000 and 4,500 bushels. The evidence shows it is worth half the value of the corn to plow, plant and cultivate corn—the part of the work performed by appellee— and that the market value of corn in October, 1904, at Avon, two and one-half miles from the land, was from thirty-eight to forty cents. There was also proof that appellant was indebted to appellee in some small items for labor the preceding year. Appellant did not consider the first verdict excessive, as she said to one of the witnesses when discussing that verdict, “It was not much when you consider I got 124 acres of good corn.” We think the value of the services of appellee in raising the corn is shown by the evidence to be fully equal to the amount of the verdict.

It is also insisted by appellant that the measure of damages was fixed by the contract as half the value of the corn at Avon and that from this should be deducted the cost of gathering and hauling to Avon, and that the reasonable value of the services rendered was not the proper measure of damages. This question is raised by rulings on objections to evidence and by assignments of error on instructions given for appellee. On the trial appellee sought to recover for services on a quantum meruit. It is well settled that where one party repudiates the contract and refuses longer to be bound by it, the injured party has an election to pursue either of three remedies: he may treat the contract as rescinded, and recover upon a quantum meruit so far as he has performed, or he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance, sue and recover under the contract; or he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing. In the latter case the contract would be continued in force for that purpose. L. S. & M. S. Ry. Co. v. Richards, 152 Ill. 59; Wilson v. Bauman, 80 Ill. 493; Guerdon v. Corbett, 87 Ill. 272; City of Elgin v. Joslyn, 136 Ill. 525 (36 Ill. App. 301); Hess Co. v. Dawson, 149 Ill. 138; Webster v. Enfield, 5 Gilm. 298; Butts v. Huntley, 1 Scam. 410; Anglo-Wyoming Oil Fields v. Miller, 117 Ill. App. 552; Geary v. Bangs, 37 Ill. App. 301; Moulton v. Trask, 9 Metc. (Mass.) 577; Wright v. Haskell, 45 Me. 489; Hoagland v. Moore, 2 Blackford, 167; Hosmer v. Wilson, 7 Mich. 293; 2 Sutherland on Dam. 521. Some eases have been cited as sustaining the rule claimed by appellant, but they will, on examination, be found to be suits in which a contract was relied upon, in which the plaintiff did not rescind the contract because of the wrongful act of the defendant, but elected to keep it in force, or on a building contract controlled by some provision of a statute, such as the lien law.

Appellant has no cause to complain of a reasonable rule of law, the application of which is caused by her own wrongful acts. We conclude there was no error either in admission of evidence or instructions regarding the measure of damages.

We have reviewed the principal errors assigned, and examined all that have been argued, and find no error in the case.

The judgment is affirmed.

Affirmed.


text:
    David R. McGrew, Appellee, v. The Chicago & Milwaukee Electric Railroad Company, Appellant.
    Gen. No. 4,984.
    1. Passenger and carrier—when presumption of negligence not rebutted. In an action by a passenger against a carrier where it appeared that the car of the carrier ran off the track at a curve in the road, held, that the evidence did not rebut the presumption of negligence which arose from the proof of the manner of the accident.
    2. Evidence—as to what expert testimony may be given. A witness having duly qualified may properly testify to pertinent questions concerning the effect of the application of brakes to cars, the effect of the reversal of the power and the proper manner of operating a car approaching a curve.
    3. Practice—when newly discovered evidence not ground for new trial. It is negligence to rely upon the supposed truthfulness of the adverse party and to proceed to trial expecting to establish certain facts by his testimony, and newly discovered evidence pertaining to facts which tend to contradict the testimony of such adverse party in the respect in question, is not ground for a new trial.
    4. Instructions—when refusal of correct, not ground for reversal. The refusal of a correct instruction is not ground for reversal where its substance is contained in another instruction given.
    5. Verdict—when excessive. A verdict of $4750 rendered in an action on the .case for personal injuries is excessive where the injury was mainly to the eyesight of the plaintiff, it appearing that such eyesight, previous to the injury, was to an extent, impaired.
    Action in case for personal injuries. Appeal from the Circuit Court of Lake county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed upon remittitur.
    Opinion filed August 10, 1908.
    Ira C. Wood, F. S. Munro and William Garnett, for appellant.
    James G. Cordon and Thomas J. Cordon, for appellee ; Hanna & Miller and E. M. Bumphrey, of counsel.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a suit in case brought by David B.-McGrew against the Chicago & Milwaukee Electric Bailroad Co. to recover for personal injuries, sustained by him while a passenger on one of its cars. • The jury returned a verdict for the plaintiff for $4,750 upon which judgment was rendered. The defendant prosecutes this appeal. The declaration alleges that the defendant was a common carrier of passengers for hire, in Lake and Cook counties, and as such owned and operated certain railroad tracks; that on April 23,1905, the plaintiff was a passenger upon an electric car operated by the defendant to be carried from Bavinia Park through Wilmette to Evanston; that it was the duty of defendant to safely carry the plaintiff on said car, etc., but not regarding its duty it so negligently and carelessly managed the car upon which the plaintiff was riding that said car, through such careless management and operation, at Fourth and Greenleaf streets, at Wilmette, overturned, by means whereof plaintiff was injured, etc. In other counts, negligence in other matters is alleged, such as: that the car was run at a dangerous rate of speed; that the car was overloaded; that the equipment was out of repair; that the body of the car was negligently attached to the trucks; that the tracks at Fourth and Greenleaf streets were constructed with a sharp and dangerous curve; that incompetent employes were employed and that the car was equipped with an insufficient and dangerous brake.

Counsel for appellant in their argument admit that the happening of the accident and the injury to a passenger make out a prima facie case, but claim the evidence introduced on the part of appellant rebutted such prima facie case. The proof was that the car, in which appellee was riding, was a forty-eight-foot car, weighing thirty-two tons; that the track of appellant’s electric railway in Wilmette turns from Greenleaf on to Fourth street, and that these streets cross at right angles; the curve at this turn has a radius of fifty-five feet; the track is down grade in the direction the car was going; the grade being a little over ten inches to the one hundred feet. The proof for appellee shows that as the car approached Fourth street on Greenleaf, it was running at about twenty miles an hour, that the appellee was standing about the center of the car; that as the car got to the curve the speed seemed to slacken, but the car went over with a crash just as the ear appeared to slacken its speed, leaving its trucks and landing on its side; that appellee was thrown on his head against the side of the car, with passengers and seats falling upon him. The appellant proved by its conductor that from Sixth to Fifth street the car was running at from twelve to fifteen miles an hour, and from five to ten miles an hour between Fifth and Fourth streets, at which rate it entered on the curve; that it was a new car, with a seating capacity for forty-eight people, but it was overloaded, having about eighty-five passengers; that as the car approached the curve he felt the brake applied, but something gave way, and all at once the car ran forward and then there was a sort of a jerk as though the current was reversed; that he saw the wheels turning backwards, making sparks fly; that as the car turned all the trucks raised up with the body, but fell back parallel with the tracks; that the trucks remained on the track they were running on, but with some of the wheels off, and that the car was geared up to run forty-eight miles an hour. On cross-examination he admitted that the car might have attained a speed of twelve or fifteen miles between Fifth and Fourth streets. This car was turning a very sharp curve from Greenleaf street to a cross street. The proof made by the appellant shows that something went wrong with the machinery of the car, as the brake seemed to take hold when applied, the car slackened speed and then it gained speed and shot forward, then a jerk was caused by the current being reversed, turning the wheels backward, when the car left the trucks on the curve and turned over. Appellant’s employe, the motorneer, was not called as a witness to tell what did occur. Cars are not ordinarily run around curves on street car tracks with the current reversed. The current is only reversed under extraordinary circumstances. The evidence produced by the appellant, in place of rebutting the presumption of negligence, would appear to produce a positive conviction that the brakes were not working properly, or that the motorneer had permitted the car to get too close to the curve at too great a speed, and that when the power was reversed on entering the curve the momentum of the heavy car, overloaded with passengers, impelled the car straight ahead, while the trucks followed the track. Between the two forces the car naturally turned over. The maxim res ipsa loquitur is applicable to this ease. We are satisfied that the appellee is entitled to recover and there was no error in refusing the peremptory instruction asked by the appellant.

It is further argued that incompetent testimony was permitted to be given by a witness, over the objection of appellant. This witness was called in rebuttal. He was qualified as an expert witness by testifying that he had had twenty-five years ’ experience in operating and teaching others to operate grip and electric cars. He was asked concerning the effect of the application of brakes to cars, the effect of the reversal of the power and the proper manner of operating a car approaching a curve. . There was no error in overruling the objections.

It is contended that the trial court should have granted a new trial because of newly discovered evidence. The proof showed that at the time of the injury the appellant was a student at Northwestern University at Evanston, but had once lived in Williamsville, Illinois. The principal injury for which appellee sought to recover is impaired eyesight, claimed to have been caused by the accident. The appellant, in support of its motion for a new trial, filed an affidavit made by its claim agent showing that about ten days before the trial a rumor had come to him, that while McG-rew lived in Williamsville, his eyesight was weak and he wore glasses, and that affiant had been acquainted with McGrew from the time of the injury and had formed the opinion that he would truthfully state on the trial that he had worn glasses at Williamsville, and affiant was informed by the dean of Northwestern University and others that plaintiff was truthful and would state the facts regarding all matters connected with his past life. Appellant now insists that it was surprised by the testimony of appellee concerning his eyes and the wearing of glasses. Appellant was advised of the injuries claimed by the appellee, and of the rumor as to what it now claims was the condition of appellee’s eyes before the injury. Appellant had ample time to secure any evidence procurable on that issue, and it was negligent in going to trial relying on proving its case by the appellee. A new trial should not be granted because of the negligence of the party asking it.

The appellee also insists that there was error in refusing three instructions. Eighteen instructions were given for the appellant and none for the appellee. All the material propositions of law in the refused instructions were contained in some of the given instructions. It is not error to refuse instructions which are contained in the given instructions.

The question most strenuously argued is that the verdict is excessive. There is proof that in 1894, when appellee was seventeen years of age, he left his native State, Kentucky, and went to Williamsville. near Springfield in this state, where he worked on a farm. In 1897, he went to Evanston, where he attended school, and for two years prior to the injuries he had been a student, working his way through college. When he was taken out of the car, at the time of the accident, he was dizzy and covered with blood. He was taken to a physician ?s office, where his wounds were dressed. There was a long gash over his eye, extending to the bone, with several other wounds on his head, and blood coming from his ear. There was a hemorrhage on the eyeball. The injury to the head was such that whenever he undertook to study to any extent Ms temperature went up. The year preceding the accident he had earned over $500 by tending furnaces and cutting lawns. This Mnd of work he had to give up and the next year he only earned $125. Physicians state that the sight of the right eye is affected so that he has only two-fifths of the normal sight of that eye, and that the condition of appellee’s eye is caused by some injury. Appellee claims that by the injury to his eye he was not able to study as before the injury, and his graduation was postponed a year. The evidence of appellee tended to show his eyes were weak before the accident, and that a physician had prescribed glasses for him eighteen months before that time. In view of appellee’s admissions as to the condition of his eyes before the accident, extracted from him reluctantly on cross-examination, we conclude the judgment is excessive. If the appellee, within seven days after this opinion is lodged with the clerk, will remit all the judgment in excess of $2,500 the judgment will be affirmed at his costs,- otherwise the judgment will be reversed.

Affirmed, on remittitur.

Thereafter appellee filed here a remittitur in the sum of $2,250, and the judgment is accordingly affirmed for the balance of the judgment, being $2,500, at the costs of the appellee.


text:
    James S. Botts, Appellant, v. Laura Cowan Patmore Botts, Appellee.
    Gen. No. 4,991.
    1. Appellate courts—when without jurisdiction. The appellate courts of this state are without jurisdiction of appeals wherein the constitutionality of a statute is raised.
    2. Appeals and ekbobs—what not final judgment. An order setting aside a decree for a divorce made within the term of entry is not a final order from which an appeal lies.
    3. Evidence—when party cannot complain of admission of incompetent testimony. A party cannot complain of the admission of incompetent testimony which he has himself offered. '
    4. Decree—when may he set aside. A court entering a decree of divorce has jurisdiction during the term of entry to set aside such decree.
    Divorce. Appeal from the Circuit Court of Will county; the Hon. A. O. Marshall, Judge, presiding.
    Heard in this court at the April term, 1908.
    Appeal dismissed.
    Opinion filed August 10, 1908.
    Cowing & Young and William A. Murphy, for appellant.

      William D. Heise, State’s Attorney, for the People.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

On October 31, 1907, James S. Botts filed a bill for divorce against Laura Cowan Patmore Botts, in the Circuit Court of Will county, alleging desertion as a cause therefor. A summons was duly served on the defendant more than ten days before the return day. At the November term, on November 30, 1907, the defendant was defaulted. The evidence was heard and a decree entered dissolving the marriage between the parties, and ordering that neither of the parties should marry within one year from the date of the decree, provided, however, that the parties are not prevented from remarrying each other. On December 5, 1907, James g. Botts with Bertha Steinfeld, “a citizen of the state of Ohio,” who “had lived for several years in Chicago,” went to the State of Indiana and claim to have been married. This fact came to the knowledge of the judge who heard the divorce suit and a citation was issued at the said November term, 1907, on January 2, 1908, requiring James S. Botts to show cause “why he should not be held for contempt of court and why the divorce entered on November 30,1907, should not be set aside.” James S. Botts appeared and filed an answer to the citation setting up that he had not violated the terms of the decree within the jurisdiction of the court; that the court had no authority in the premises, and that there was no sufficient complaint on which to base the citation.

Bertha Steinfeld also appeared and petitioned for leave to be made a party, and stated that she was married on December 5,1907, to Botts in Indiana, and that the decree of November 30 should not be vacated because of the situation in which such action would leave her. On the hearing upon the citation, Botts, by his counsel, offered the decree in evidence and excepted to that part of the decree prohibiting him from marrying within a year. Proof was made that when the divorce was granted James S. Botts was advised in open court of that clause of the decree. That part of the decree is simply a copy of the statute. If the appellant desires to question the constitutionality of that statute by this appeal, then this appeal is not to the proper court, as this court has no jurisdiction where the validity of a statute is involved.

The appellant questioned the right of the court to issue the citation without a proper showing. The court thereupon dismissed the citation without prejudice, for want of a formal complaint and set aside and declared void the decree of November 30, 1907.

There is no decree or final judgment on the divorce suit in the record. The suit is still pending and unde - termined. James S. Botts appeals “from that clause of the decree to which we excepted before hearing, and to the order setting aside and vacating the decree. ’'

The appellant insists the court erred in permitting Bertha Steinfeld to testify in the matter .of the citation. She testified at the instance of the appellant. He has no cause of complaint because of the admission of evidence offered by himself.

It is also assigned for error that the court had no jurisdiction to vacate the decree of November 30th. The order vacating the decree was made at the same term at which it was entered. ' “The decree had not become an unalterable record. It, with the records of other proceedings of the term, was still in fieri and under the control of the court to amend, change or vacate as justice might require.” Danforth v. Danforth, 105 Ill. 603; Shanahan v. Stevens, 139 Ill. 428; Cooper v. Gum, 152 Ill. 471. The court did not dismiss the bill when the decree was vacated; so far as appears from the record the divorce proceeding is still pending in the Circuit Court. There is no appealable judgment in the Circuit Court. The appeal is dismissed.

Appeal dismissed.


text:
    Edmund Stephen, Administrator, Appellee, v. Joseph J. Duffy, Appellant.
    Gen. No. 5,000.
    1. Master and servant—duty to furnish safe place to work. It is the duty of a master to provide for his employes, so far as the work at which such master is engaged will permit, a reasonably safe place to work, and if the place may become dangerous by reason of perils arising from the doing of other work pertaining to the master’s business different from that in which the particular servant is engaged, to give him such warning of the additional dangers as will enable him in the exercise of reasonable care to avoid them or to guard against them. Whatever means may be employed, it is the duty to employ them.
    2. Master and servant—when risk not assumed. A servant does not assume a risk which arises from the performance by his master of other work with which he, such servant, is in no wise connected.
    3. Master and servant—when rule of res ipsa loquitur applies between. If the servant is entitled to receive from his master the same measure of protection which the master owes to the public at large, the rule of res ipsa loquitur applies in favor of the servant, if it would apply in favor of the public, and such rule does apply where the injury to the servant results from an accident resulting from the employment by the master of dyamite used in connection with work other and different from that in which the servant was engaged.
    4. Evidence—when expert testimony competent. Expert testimony is competent with respect to the appearance of stone after it was blasted with dynamite, and as to the effect of such explosions and the ability of experts to discover whether some of the charges of dynamite had failed to explode.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibble, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    J. L. O’Donnell and T. F. Donovan, for appellant; R. J. Folonie, of counsel.
    John W. D’Arcy, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Appellee sued appellant in the Circuit Court of Will county to recover damages for the benefit of the next of kin, because of the death of Alfred Qestry, alleged to have been caused on December 26, 1904, by the negligence of Joseph J. Duffy, appellant, and others.

At a former trial, at the close of appellee’s evidence, the court instructed a verdict for the present appellant. On appeal to this court that judgment was reversed and the cause remanded for a new trial. 136 Ill. App. 572. On the second trial in the Circuit Court the jury returned a verdict against the appellant, Joseph J. Duffy, assessing appellee’s damages at $5,000, and finding the other defendants not guilty. Joseph J. Duffy appeals from that judgment.

No point is made or argued as to the giving or refusing of instructions, nor is any serious question argued in regard to the admission or rejection of evidence. The main questions argued are that the verdict cannot be sustained upon the evidence because the specific negligence which caused the death of the intestate has not been proved and that the cause of the death of the intestate was an assumed risk.

The former opinion of this court stated the case as it then appeared. The evidence is slightly changed from that on the former trial and there is some additional evidence both on the part of appellee and appellant in'the record.

The appellant was engaged in excavating and removing solid limestone rock from the drainage channel of the Sanitary District of Chicago, in the township of Loekport, in Will county. The ledge of rock was being removed to a depth of twelve feet. The method of removal was to cut the outer edge of the channel with machines known as channelers to below the bottom of the ditch, then drill four rows of holes, the holes being about six feet apart in the rows and the rows about eight feet apart, the first row being six or eight feet back from the face of the rock. The holes were drilled to a depth of twelve to fourteen feet and were from one and a half to two inches in diameter, but were enlarged at the bottom by springing them with light charges of dynamite, making a small excavation at the bottom of each hole. Each hole was then charged with from twenty-five to forty pounds of dynamite, the dynamite being in sticks weighing from half a pound to a pound each. An exploder, which is a small copper cap containing some kind of explosive that can be discharged with electricity, was inserted in a small hole in the last stick of dynamite, and then inserted in each hole amongst the other sticks of dynamite. Electric wires connecting with this exploder are run through and around the stick of dynamite in which the exploder is inserted, so that the exploder and dynamite may not become separated. The exploder is covered with a substance resembling sulphur to keep it dry; the hole in the dynamite over the exploder is also filled with soap or some greasy substance to keep water from getting into the exploder. A general wire connects a series of small circuits with a battery; separate circuits are made of every four holes. The rows of holes are all discharged at the same time, the discharge breaking up the rock and heaving it some four feet above its natural level.

The rock, after being broken up by the dynamite, was loaded by means of a steam shovel into cars. The deceased, at the time he was killed, and for two months prior thereto, was in the employ of the appellant operating the crane on the shovel. The men engaged on the shovel had nothing to do with the men who drilled and charged the holes and exploded the dynamite. The holes had been drilled, charged and exploded at the place where the deceased was killed about three days before the day of the accident, while the steam shovel was working about half a mile from where the drilling and blasting was being done. At the time of the accident the deceased and other employes in charge of the shovel were working at removing the broken stone and had loaded several cars, having worked that morning from about seven o ’clock until ten o ’clock, the hour at which the deceased was injured, when the shovel came in contact with a charge of unexploded dynamite, causing an explosion which caused the death of Oestry, who was struck by a flying rock.

The declaration contains seven counts. In the first count the defendant is charged with being engaged in the work of blasting rock with dynamite and removing the rock, and with the duty of exercising reasonable care in properly placing and discharging the explosive material, so that the dynamite would be exploded when the electrical current used for that purpose was applied, or, if the dynamite was not exploded, with the duty of withdrawing it from said holes so as not to injure Oestry, when working with the shovel, and that the defendant, in violation of said duty, carelessly, in a negligent manner, connected said charges, etc., and carelessly neglected and allowed unexploded dynamite to remain in said holes without notice to the deceased, etc. .

The second count alleges that it was the duty of defendant to use reasonable care in preparing and exploding dynamite in holes and to cause all the dynamite in said holes to be exploded or withdrawn therefrom before permitting the steam shovel to work in that portion containing dynamite unexploded, and to carefully inspect said premises after the explosion to ascertain if all the dynamite therein was exploded when the electrical current was applied thereto, and to withdraw all unexploded dynamite or give notice of the danger, and alleges negligence in the performance of said duty.

The third count alleges the negligence of the defendant in failing to provide Oestry with á reasonably safe place, etc. The remaining counts allege specific negligence in reference to the manner of charging the holes, insufficient exploder, frozen dynamite and other matters, the allegations concerning which it was essential the plaintiff should prove to sustain such counts.

The evidence showed that the deceased was working as a cranesman on a steam shovel engaged in loading broken rock into cars; that the cranesman was stationed on a stand on the engine midway of the boom; that the cranesman’s duty was to direct the course of the shovel in the stone pile and after it was filled with rock to guide it to its proper position over the car and dump it; that the boom is thirty feet long and stands at an angle of forty-five degrees, so that the cranesman was elevated above the level from which the rock was taken by the shovel; that when the fourth ear was being loaded on the morning of the accident, an explosion occurred in the pile of rock at the place where the shovel was being forced into the pile; that this explosion was like explosions in work where dynamite is being used for blasting and threw stone all around, one piece striking appellee’s intestate, causing his death; that the explosion broke the bail on the dipper of the shovel, the bail being made of iron eight inches wide and two and one-lialf inches thick; that flying rock from the explosion took the corner off a top buggy that was being driven over a bridge one hundred feet or more distant, and a rock weighing twenty pounds fell in front of the horse. Witnesses who saw the explosion say there must have been twenty-five pounds of dynamite exploded at that time, from the appearance and effect of it; that the blasting had been done by the employes of appellant with dynamite about three days before the injury; that the blasting was done by exploding dynamite in a large number of holes at the same time; the ledge blasted was about 100 feet long and 30 feet wide; that no work had been done at the place where the explosion occurred between the time of blasting and the morning of the accident; and that a steam shovel loading stone from a bank in which there was dynamite would cause the dynamite to be exploded by attrition or by forcing the dipper or stones against it.

The evidence is conflicting upon the question whether persons skilled in the nse of dynamite could, by investigation, discover if any of the charges in the holes had failed to explode. Thomas McHugh, a witness engaged in rock excavation for a number of years and in the use of dynamite, testified that where a large number of holes are fired from a battery “If one of the holes neglected to go, he could tell where that hole was that didn’t go,” that a center hole that failed to explode would leave a depression; and that “where holes are six feet apart one way and eight feet apart another and the bank is loosened up in the manner indicated, an unexploded hole could certainly be discovered by a person who was experienced in inspecting work of that kind; that “if there were four holes unexploded anybody could tell then. Not a bit of danger of him (an experienced man) not knowing it.”

John Romano, a contractor having seventeen years’ experience with dynamite, testified that on examination there would be indications to the foreman that one hole had not exploded, that if a circuit of four holes failed to explode it would leave more or less Solid rock; that the more holes were exploded at the same time the more difficult it would be to tell whether any had failed to explode, and that if holes charged with dynamite six or seven feet apart and twelve or fourteen feet deep were exploded a person experienced in inspecting work of that kind could discover an unexploded hole.

McGinnis, the engineer in charge of the steam shovel on which Oestry worked for appellant, and on which he was killed, testified that there was no notice of danger given before the explosion; that if four or five holes missed you would notice it, because the rock would not be thrown up, it would be solid, but that he had never observed where one hole was missed; “that I never inspected it on any work I was ever on;” that there were indications that other holes had failed to explode in that same battery, besides the one the explosion of which killed Oestry; that they discovered one the next day where some sixteen sticks of dynamite were found unexploded, five or six feet- from where the explosion happened that killed Oestry; and that this was the first explosion that occurred on the work caused by a shovel while Oestry was his cranesman.

Howard Blackburn, a man of experience in the use of dynamite, who was assistant superintendent of the work, testified that the holes were eight feet apart and sixteen feet deep and that they would blow up twenty-five holes more or less at a time; that “where holes are eight feet apart each way it could be observed from the surface if one of the holes remained, unexploded;” “that if four holes remained unexploded there would be no difficulty; that on a few occasions in going over the work he saw evidences of unexploded dynamite; that the rock would be solid and the wire would be sticking up; that from May, 1904, up to the time of the injury there were no explosions of any kind on account of the steam shovels coming in contact with dynamite.”

It was also proved without any contradiction that if the holes were exploded one row at a time there would, be no difficulty in discovering any charge that missed exploding.

It was proved on the part of appellant, by his superintendent, that missed holes which had failed to explode had been taken out before while the deceased was on the work; that missed holes were sometimes found once or twice a week, and these missed holes were sometimes discovered by the shovel-man ; that if a battery of holes like the one used to break up this rock was exploded and one hole failed to explode he would not be able to discover it, and that there was nothing unusual about the appearance of this rock after the blast, that there were no marked depressions more than ordinary, nothing indicating a missed hole. There was proof that the charge of dynamite in any of the holes or small circuits might fail to discharge because of any one of a number of reasons, such as if the fulmanite in the exploder should get wet or be defective, or if the electric circuits should be too weak or be broken by the wire becoming detached from the exploder, or the dynamite should be frozen, and that some of the charges might be exploded and others not, but the particular reason for the failure to explode could not be told. There was also proof that there was water in some of the holes when the drilling was done in this battery, and that it was cold weather when these holes were loaded with dynamite, and that the dynamite was thawed out before being put in the holes.

It is a matter of common knowledge that the use of dynamite as an explosive is intrinsically dangerous. “It is the duty of tiie master to provide for his employes, so far as the work at which he is engaged will permit, a reasonably safe place to work, and if the place may become dangerous by reason of perils arising from the doing of other work pertaining to the master’s business different from that in which the particular servant is engaged, to give him such warning of the additional danger as will enable him in the exercise of reasonable care, to avoid them or to guard against them. Whatever means may be employed, it is the duty of the master to employ them.” Felice v. N. Y. C. & H. R. R. Co., 14 App. Div. (N. Y.) 345. The more dangerous the means are that are employed by a master to accomplish the work he is engaged in, the greater the care and diligence is required to fulfill the duty of ordinary care that is required of the master to furnish the employe a safe place. The care of the master must be proportionate to the dangerous means employed by him, in order to constitute reasonable care. The deceased was in no way connected with the employes who did the drilling, the charging the holes with dynamite, or the firing of the charges. The dangers to which the deceased was exposed were only the dangers of working with the machinery connected with a steam shovel. The death of the deceased was occasioned by the explosion of dynamite that was in the pile of rock. This danger was in no way incident to his employment. The deceased was entitled to the same protection against injury from dynamite that a person not an employe was entitled to. In I. C. R. R. Co. v. Phillips, 55 Ill. 194, it was held that “the mere fact that a boiler exploded was prima facie evidence of negligence, and that the burden of disproving the negligence was thrown on the company. ’ 5 This rule was approved in Schaller v. Independent Brewing Co., 225 Ill. 492, where it was said: “It does not appear from the judgment and record of the Appellate Court that said court held proof of the explosion was not prima facie evidence of negligence, as contended by appellant. Such proof in any event, is not conclusive, but is only prima facie evidence, and may be rebutted by other testimony. ” In John Morris Co. v. Burgess, 44 Ill. App. 39, it was held that when a bystander is injured, the explosion of a boiler is prima facie evidence of negligence. In P., C., C. & St. L. R. R. Co. v. Campbell, 116 Ill. App. 356, it was held that from an injury resulting to plaintiff an employe while riding on a work train into the rear of which another train ran, the doctrine of res ipsa loquitur applied, and negligence upon the part of the defendant in such instance will be presumed. It is urged in behalf of appellant that it was incumbent on appellee to prove the particular act that was the cause of the dynamite not having exploded when the rock was blasted. In Armour v. Golkowska, 202 Ill. 144, where plaintiff was injured by a barrel falling from an unprotected platform, it was held not indispensable to her right of recovery that she show the cause of the fall of the barrel, or that it was not caused by the force of nature, or by some person unconnected with the-defendant. In this character of cases there is a principle involved that distinguishes them from cases where an employe is injured by the agency or machinery with which he is working. In the latter case the employe has within his knowledge the means of proving the cause of his injury, while in the former the employe ordinarily is in entire ignorance of the cause of the accident, and the means of proof are entirely within the power of the master.

In the ease of Chicago U. Tr. Co. v. Giese, 229 Ill. 260, the rule applicable to cases of this kind is clearly announced: “When the thing which has caused an injury is shown to be under the management of the party charged with negligence, and the accident is such as in the ordinary course of things does not happen after those who have the care and management use proper care, the accident itself affords reasonable evidence in the absence of an explanation by the party charged, that it arose from the want of proper care. This rule of law results from the maxim res ipsa loquitur. Many cases are to be found illustrating the application of this rule. In some of them it is said that the rule is an exception to the general rule that negligence will never be inferred, while in others it is not treated as an exception but is treated as an evidentiary rule, under which the charge of negligence is regarded as proven, prima facie, by the proof of facts showing that the thing which caused the injury was under the management and control of the defendant or his servants, and that the accident is such as in the ordinary course of tilings does not happen if those who have the management use proper care.” The concise rule is that the circumstances surrounding a case, where the maxim res ipsa loquitur applies, amount to evidence from which the fact of negligence may be found.

To apply the rule contended for by appellant and say that one injured as appellee’s intestate was cannot recover, unless he affirmatively proves in the' first instance the specific act of negligence of the appellant which caused the injury. would, in many cases, be a denial of a right to recover at all, no matter how negligent the appellant might be. The evidence offered showed that by a proper inspection by competent and skilled men, the fact would have been discovered that some of the charges had failed to explode. It was the appellant’s duty to inspect and know if any of the holes loaded with dynamite remained unexploded, and if so to remove it to prevent injury to the steam shovel crew. Harp v. Cumberland T. & S. Co., 80 S. W. R. 511; Lanza v. La Grange Quarry Co., 124 Ia. 659; Reilly v. Erie Ry. Co., 177 N. Y. 547.

This case is one in which, when the peculiarly dangerous agency used by the appellant is considered, and with which the deceased had no connection in handling or working, the simple fact that he was killed by an explosion and that another gang or employes of defendant had blasted with dynamite, the rock with which the deceased was killed, but three days previous to the explosion that caused the injury, and that witnesses who saw the explosion testify that it had the appearance and effect of an explosion of dynamite, were sufficient to raise a presumption of negligence from which the jury might reasonably find that the appellant was guilty of the negligence alleged. In such case the appellee was entitled to a verdict unless the presumption of negligence proved was rebutted. The jury found that that presumption of negligence was not balanced by the appellant’s evidence, and we cannot say upon a review of all the evidence that the jury were mistaken.

The remaining question argued is: that the cause of the death of the deceased was an assumed risk. The proof shows that no explosion had occurred on this work before while a steam shovel was digging on the rock; this was the first explosion that had occurred. The deceased did not assume the risk of an injury caused by the neglect of the appellant, and which would not have occurred had the appellant used ordinary care to guard his employes by properly inspecting the work to see that none of the charges of dynamite had failed to explode, and if any had failed to explode, to remove them or warn the employes of their danger. The facts that dynamite had been discovered and taken out, or that the shovel at other times may have uncovered dynamite, which, because of some unknown cause, had failed to explode, do not excuse the negligence of appel - lant. Appellee only assumed the risks which are naturally incident to the working of the steam shovel. The risk of an explosion caused by dynamite placed in the rock by appellant was not an assumed risk.

The only assignment of error presented regarding the admission of evidence, is a ruling of the court on an objection to the opinion of witnesses, who were permitted to testify as experts concerning the appearance of stone after it was blasted with dynamite, and as to the effect of such explosions and the ability of experts to discover where some of the charges of dynamite had failed to explode. Dynamite is not a material in ordinary use and ordinary people have no technical knowledge or experience in the use of such a dangerous agency. The questions involved were proper subjects for expert testimony, and there was no error in the admission of such testimony.

The evidence is very conflicting and there is evidence on which the jury could reasonably find for the appellee. No error appearing in the case the judgment is affirmed.

Affirmed.

Mr. Justice Dibell having tried this case in the Circuit Court, took no part in this court.