text:
    B. I. Tice, Defendant in Error, v. Chicago, Peoria & St. Louis Railway Company, Plaintiff in Error.
    Appeals and erbobs—when former decision of Appellate Court not conclusive. The facts of a subsequent appeal being different, the former decision of the Appellate Court in the same case is not conclusive.
    Action in case. Error to the Circuit Court of Menard county; the Hon. Habby Higbee, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Henry L. Childs and Charles Nusbaum, for plaintiff in error; Bluford Wilson and Phillip Barton Warren, of counsel.

      L. A. Whipp, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This was a suit by defendant in error against plaintiff in error to recover the value of a horse alleged to have been killed by reason of the failure of plaintiff in error to maintain a sufficient fence along its right of way, and also to recover reasonable attorney’s fees. Upon the trial the jury returned a verdict against plaintiff in error for $117.08, as the value of the horse, and $71.25 as reasonable attorney’s fees. The court required defendant in error to remit $22.09, from the amount due as attorney’s fees, and entered judgment against plaintiff in error for $166.24.

This case was before this court upon appeal at the May term, 1903, when the judgment of the Circuit Court awarding damages to defendant in error was reversed and the cause remanded. C. P. & St. L. Ry. Co. v. Tice, 111 Ill. App. 161. It appeared from the evidence in the record upon that appeal that the narrow strip of land, about a quarter of a mile long and 200 feet wide at the west end and 100 feet wide at the east end, which adjoins the right of way of plaintiff in error and which was used by defendant in error as a pasture for his horses, was owned by plaintiff in error, and we then held that defendant in error was a mere trespasser, and that plaintiff in error could not be held liable for killing the horse, unless the injury which resulted in the death of the animal was wantonly o'r wilfully inflicted. The record in the case as it now comes before us discloses the fact that the strip of land above mentioned was owned in part by one John Tice, who was the original owner of the tract of land upon which the railroad right of way of plaintiff in error is located, and that he acquired title to a portion of said described strip of land by reversion upon the subsequent vacation of a public highway which formed the north boundary of the tract of land conveyed by bim to the Springfield & Northwestern Bailroad Company, through whom, by mesne conveyances, plaintiff in error derived its title. The evidence further discloses that said strip of land had been used as a pasture by said John Tice, and other persons under him, for twenty or thirty years prior to the time the horse of defendant in error was killed.

It is conceded by plaintiff in error that the fence through which the horse escaped and went upon the track, where it was killed, was out of repair and wholly insufficient to serve the purposes of a right of way fence.

Plaintiff in error raises no questions of law upon the rulings of the court in the admission or exclusion of evidence, or in the giving or refusing of instructions, but relies solely upon the judgment of this court when. the case was here upon appeal, as conclusive against the right of defendant in error to recover. The facts developed upon the last trial of the case are entirely different from those appearing in the record when the case was before this court on appeal, and the finding and judgment of this court upon that appeal are therefore not conclusive upon the present record.

The facts disclosed by the record now before us, made it incumbent upon plaintiff in error to maintain a sufficient right of way fence at the place where the horse of defendant in error went upon the railroad track, and plaintiff in error must respond in damages caused by its failure to maintain such fence.

The judgment of the Circuit Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    Emmett Layman, Appellee, v. Penwell Mining Company, Appellant.
    1. Mines and Minebs Act—when reliance cannot he placed upon wilful violation of statute hy oioner as basis for lack of knowledge of unsafe condition of mine. If a servant has acquired actual knowledge of the unsafe condition of the roof of a mine hy sounding it with a pick and has taken the necessary steps to avoid a danger incident to such unsafe condition, he cannot he heard to say that he was prevented from having such knowledge by reason of the obscuration of his vision by standing powder smoke due to alleged defective ventilation, and the resulting injury is deemed not approximately to have resulted from the violation of the act complained of.
    2. Mines and Minebs Act—when failure to inspect not ground for recovery. If an unsafe condition arises after the regular and proper inspection has taken place, no charge of liability can be predicated with respect thereto, upon the ground of non-discovery by the mine examiner.
    Action in case for personal injuries. Appeal from the Circuit Court of Christian county; the Hon; Albebt M. Rose, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed.
    Opinion filed April 21, 1908.
    J. C. & W. B. McBride, for appellant.
    Hogan & Wallace, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellee, Emmett Layman, recovered a verdict and judgment in the Circuit Court of Christian county against appellant, Penwell Coal Mining Co., for $1,500, for personal injuries alleged to have been sustained by appelleee in consequence of the wilful violation by appellant of certain provisions of the act relating to Mines and Miners. The declaration contains four counts. The first count, which alleges common law negligence, was dismissed by appellee at the conclusion of the evidence introduced on his behalf. The second count charges a wilful violation by appellant of the provisions of section 16 of the Mines and Miners Act which requires the mine manager to see that cross cuts are made at proper distance apart to secure the best ventilation at the face of the working place, to keep a careful watch over all ventilating apparatus and the air currents in the mine, and in case of accident by which the currents are obstructed or stopped, to at once order the withdrawal of the men and prohibit their return until thorough ventilation is reestablished, and avers in consequence thereof the air of the room in which appellee was at work became stagnant, deleterious and filled with smoke so that appellee could not see or anticipate the dangerous or unsafe condition of the roof in said room, whereby a large quantity of slate and rock fell from said roof and injured appellee.

The third count charges a wilful violation by appellant of section 18 of said Act, which provides that the mine examiner shall visit the mine before men are permitted to enter it and see that air currents are circulating in proper courses and proper quantities, and shall also inspect all places in the mine where men are expected to pass or to work, and observe whether there exists therein any unsafe condition, and as evidence of such .examination shall inscribe on the wall of each place so examined the month and day of his visit and to place a conspicuous mark at working places where dangerous places exist, and avers that appellant, disregarding its duty in that behalf, permitted appellee to enter into his working room when the conditions therein were unsafe, in this, that the roof was insecure and not properly supported by props or other means; that the roof was composed of slate and rock of a treacherous formation so that it necessitated careful watching on the part of any one employed in said room to avoid the danger and injury resultant from the fall of rock and slate; that the conditions in said room were rendered still more dangerous by reason of the fact that sufficient or proper cross cuts in the sides thereof were not made, and because of appellant’s further lack of precaution and failure to make provision for the circulation of air in said room, and as a result thereof the air did not circulate through the same, but on the contrary it became and remained stagnant, so that powder smoke accumulated and remained in the room, thus preventing appellee from seeing or anticipating the dangerous condition of the roof thereof, or of the likelihood of rock and slate falling upon him, and that appellant failed to post a notice at the entrance of said room of the unsafe and dangerous conditions so as to give warning to the plaintiff of such dangerous condition; and that the mine examiner failed to mark with chalk on the walls of said room the day and date as aforesaid, as evidence of his visit to said room; and that while appellee was engaged at work in said room a large quantity of rock and slate fell from the roof thereof upon appellee, injuring him, etc.

The fourth count charges the wilful violation by appellant of the requirements of section 19 of said Act which provides that throughout every coal mine there shall be maintained currents of fresh air sufficient for the health and safety of all men and animals employed therein; that said currents shall be forced into every working place throughout the mine, so that all parts of the same shall be reasonably free from standing powder smoke and deleterious air of every kind; that cross cuts shall be made not more than sixty feet apart, and no room shall be opened in advance of the air current, and avers that appellant wilfully failed to provide cross cuts in the side of appellee’s room not more than sixty feet apart, and failed to prevent said room being opened in advance of the air currents, and failed to maintain currents of fresh air in and through said mine and said room, sufficient for the health of the men engaged therein; that it failed to cause to be forced throughout said working place currents of air sufficient to render the same reasonably free from standing powder smoke and deleterious air, and that while appellee was engaged at work in said room and by reason of the wilful failure of the defendant to comply with the provisions of said statute, powder smoke and deleterious air collected in said room or working place in such quantities as to render said working place dangerous and unsafe for persons working therein, and prevented appellee from seeing, apprehending or avoiding the dangerous or unsafe condition of the roof of said room, and that while appellee was at work in said room a large quantity of slate fell upon him, injuring him, etc.

On January 8,1906, appellee, a miner in a coal mine operated by appellant, was engaged with his “buddy,” George Burke, in taking out coal from the face of room No. 2 off the first stub entry west of the sixth north on the east of appellant’s mine. Boom No. 2 had been driven to the south about 130 feet and the adjoining room No. 1 had been driven in the same direction about 115 feet. Appellee commenced work at about eight o’clock in the morning and continued mining coal, drilling and making preparations to fire some shots until about the noon hour. Before the shots appellee set a prop at the face of the coal to hold up the top in case it should break. After lighting the squib he retired to the entry of the room to await the blast and remained there five or ten minutes after the explosion, when he re-entered the room and remained there a few minutes. He then went into room No. 1, where he ate his dinner, and returned to his own room at about quarter to one o’clock. Appellee testified that when he entered room No. 2, within five or ten minutes after the blast, there was so much powder smoke in the room that he was unable to distinguish objects, and that upon his return to the room after eating his dinner there was still sufficient powder smoke in the room to partially obscure his vision; that he put his hand up to the roof and sounded it with a pick for the purpose of determining if it was loose and unsafe; that if the roof had been loose and unsafe it would have sounded drummy. He testified on direct examination that the roof did not sound drummy when sounded with a pick, but on cross-examination he testified: “It sounded a little bit drummy and I would not work under it until I set this prop.” He further testified: “At that time I thought the roof was loose and was putting a prop to keep it from falling. Couldn’t say whether it would fall but was liable to fall at any time. ’ ’ While appellee was clearing a place for a prop to rest upon the floor of the room a large quantity of slate and rock from the roof fell upon him and inflicted the injuries' complained of.

It is conceded that appellant had wilfully failed to comply with the provisions of the statute requiring cross cuts between rooms Nos. 1 and 2, and that a compliance with the statute would have required appellant to make one or more cross cuts between said rooms. The evidence is conclusive, however, that there were no deleterious or noxious gases in Boom No. 2 and that there was no powder smoke standing in said room immediately prior to the time the last shots were fired by appellee.

The evidence tends to show that the mine examiner employed by appellant examined room No. 2 and the roof and working place in that room on the day of the accident prior to the time appellee commenced work, and that he then found the roof and working place in said room to be in safe condition, and as evidence of such examination he inscribed the month and day of his visit to the room in front of the road on top.

It is insisted on behalf of appellant that the provisions of sections 16 and 19 of the Mines and Miners Act, wilful violations of which are alleged in the second and fourth counts of the declaration, respectively, relate solely to the subject of ventilation and the supply and circulation of air as affecting the sanitary condition of the mine and the health and safety of the men employed therein, and that such provisions have no reference to conditions induced by standing powder smoke and the like, affecting the light in the working places of the mine, whereby a miner may be unable to discern and guard against danger. Undoubtedly the primary purpose of the Legislature in enacting sections 16 and 19 of the Act in question, was to provide a proper sanitary condition of a mine by a system of ventilation whereby there might be forced throughout the mine currents of fresh air sufficient for the health and safety of men and animals employed therein, and the withdrawal therefrom of noxious gases, but we are not disposed to hold that the requirements of those sections of the statute are directed solely to the maintenance of proper sanitary conditions, and that a mine operator may not be held liable for an injury to a miner proximately caused by wilful violation of those provisions, even though such injury is not directly attributable to the sanitary condition of the mine. In other words, if through the wilful failure of a mine operator to comply with the provisions of said sections 16 and 19, noxious gases, deleterious air and standing powder smoke are present in the mine in such quantities, and are of such character as to obscure a miner’s vision and he suffers an injury by reason of the obscuration of his vision caused by the presence of such gases, air and smoke, the mine operator should not be permitted to escape liability for such injury upon the ground that such injury was not approximately caused by conditions affecting the sanitation of the mine.

It is manifest from the evidence in the case at bar that the unsafe condition of the roof was known to appellee and that knowing such unsafe condition and having an appreciation of the danger incident thereto he determined to put a prop under the roof for the purpose of supporting it. This knowledge of the unsafe condition of the roof appellee acquired by sounding the roof with a pick, which was the ordinary means employed to discover and determine such condition, and it does not appear that if appellee’s vision had not been partially obscured by the standing powder smoke he would have obtained any more definite or accurate knowledge of the condition of the roof. Appellee having acquired actual knowledge of the unsafe condition of the roof by sounding it with a pick and having taken the necessary steps to avoid a danger incident to such unsafe condition of the roof, cannot be heard to say that he was prevented from having such knowledge by reason of the obscuration of his vision by standing powder smoke. The gravemen of the action as set forth in each of the second, third and fourth counts of the declaration is the inability of appellee to observe the roof and acquire knowledge of its unsafe condition because of the obscuration of his vision by standing powder smoke, and it is clear from what has been heretofore said that the presence of standing powder smoke in appellee’s room was not the proximate cause of his injury.

The evidence unquestionably discloses no causal connection between appellee’s injury and the presence of powder smoke in his room and establishes the fact that the same injury would have resulted if there had been no standing powder smoke in the room.

It is urged on behalf of appellee that a right of recovery was established under the third count of the declaration, which charges a wilful failure upon the part of the mine examiner of appellant to visit the mine before men were permitted .to enter it, and to inspect all places where men are expected to work and observe whether there existed therein any unsafe conditions, and as evidence of such examination to inscribe on the walls of such working places, with chalk, the month and day of his visit, and where dangerous conditions are found to exist to place a conspicuous mark thereat as notice to all men to keep out, as provided in section 18 of the Act. The duty imposed upon the mine examiner to observe all unsafe conditions in the mine before men should be permitted to enter it did not relate in the case at bar to the presence of standing powder smoke in appellee’s room, because that condition did not exist prior to the time appellee entered the mine, but accrued subsequent to such time and while appellee was working therein. Neither can the duty imposed upon the mine examiner be held to relate, in this case, to the unsafe condition of the roof which caused the injury complained of, because it is clear from the evidence that the unsafe condition of the roof in question did not exist before appellee enteréd the mine to work therein, so that it could have been observed by the mine examiner, but was caused by the shots fired by appellee during the progress of his work in mining coal, and at a time when the mine examiner had no opportunity and was not required to examine and report its condition. The allegations, therefore, in the third count of the declaration, charging a wilful failure by appellant’s mine examiner to observe the presence of standing powder smoke and the roof in appellee’s room, as unsafe conditions, are not supported by any evidence in the record.

The judgment of the Circuit Court will be reversed but the cause will not be remanded.

Reversed, with finding of facts.

Finding of facts to be incorporated in the judgment of this court: We find that the alleged wilful violation of the statute as charged in the several counts of the declaration was not the proximate cause of the injuries sustained by appellee, and that appellant was not guilty of a wilful failure to comply with the provisions of section 18 of the Mines and Miners Act, with respect to the duty of its mine examiner to observe the presence of standing powder smoke and the roof in the working place and room of appellee as being the unsafe condition charged in the third count of the declaration.


text:
    The People, ex rel. Golda Simpson, Appellee, v. Clarence E. Griffin, Appellant.

      Bastardy—what essential to right to maintain proceedings for. Under the statute in this state, the woman must be unmarried when the child is both conceived and born in order to be competent to prosecute a bastardy proceeding.
    Proceeding under Bastardy Act. Appeal from the County Court of Vermilion county; the Hon. Isaac A. Love, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed.
    Opinion filed April 21, 1908.
    Acton & Acton, for appellant.
    J. W. Keeslar, for appellee; W. T. Gunn, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court..

This is a proceeding under the Bastardy Act. The cause was heard by the court, without a jury, upon a stipulation as to the facts, and resulted in a finding’ that appellant was the father of a bastard child of the relatrrx, and judgment against appellant, in accordance with the provisions of the statute for the support, maintenance and education of the child. The stipulation upon which the cause was tried is as follows:

“It is stipulated and agreed that the following facts, are admitted as the evidence in the above entitled cause, and that a jury is waived in said proceeding and the cause submitted to the court upon the facts hereinafter stipulated, reserving to either party the right to question the competency and relevancy of the facts so admitted, to-wit:
First. That the relatrix, Golda Simpson, on July 3, 1900, was lawfully married to one Norman Simpson, and remained his lawful wife from that time until November 12, 1906, when she secured a divorce from the said Norman Simpson in the Circuit Court of Yermilion county, Illinois, on the ground of desertion; that two children were born to said marriage.
'Second. That the relatrix, Golda Simpson, will testify in this case that the defendant, Clarence Griffin, had sexual intercourse with her and is the father of the child mentioned in the complaint filed in this proceeding, and that the defendant does not deny said facts so sworn to.
Third. That at the time of the conception of. said child the relatrix, Golda Simpson, was the lawful wife of said Norman Simpson, and at the time was not divorced from him, but said Norman Simpson was not living with the said Golda Simpson and had not had intercouse with her within the period of gestation.
Fourth. That the child mentioned in the complaint was born on April 9, 1907, after the relatrix secured her divorce, and that at the time of the birth of the child the relatrix was an unmarried woman, and was also an unmarried woman at the time of filing the complaint herein. And the foregoing was all the evidence introduced on the trial of this case.”

The important question to be determined in this case arises upon a consideration of the second proposition of law submitted by appellant, and refused by the court, which proposition is, as follows:

The court holds that under the law in this state the relatrix must be an unmarried woman at the time of the conception of the child in order to be entitled to prosecute an action under the statute relating to bastardy.”

Section 1 of the Bastardy Act provides in part: “That when an unmarried woman who shall be pregnant, or delivered of a child, which by law would be deemed a bastard, shall make complaint to a justice of the peace of the county where she may be so pregnant or delivered, or the person accused shall be found, and shall accuse, under oath or affirmation, a person with being the father of such child, it shall be the duty of such justice to issue a warrant against the person so accused,” etc.

Allowing the nsnal period of gestation the child was conceived by the relatrix about July 1, 1906, and at that time she was a married woman. It is conceded that but for the decree of divorce of November 12, 1906, which dissolved the marriage existing between the relatrix and her husband, and the birth of the child thereafter, the relatrix would not, under the statute, be competent to prosecute this case, but it is insisted that as such marriage relation had been dissolved prior to the birth of the child, and the relatrix was then an unmarried woman, the action will lie. The phraseology of the section of the statute above quoted lends some support to appellee’s contention, but we are satisfied that the proper construction of the statute involved does not sustain such contention. The Legislature manifestly intended that the relatrix in a bastardy proceeding must be unmarried when her child is both begotten and born. She may, if unmarried and pregnant with child, institute such a proceeding before the birth of the child and require the putative father to enter into recognizance for his appearance at the next court after the birth of the child, but the only liability imposed by the statute upon the putative father being the payment of certain sums of money for the support, maintenance and education of the child, does not accrue until the birth of the child. If no proceedings are instituted during the pregnancy of the relatrix, she may await the birth of the child and then institute proceedings to compel the putative father to pay the required sum of money. The status of the mother as to being married or unmarried when the child is conceived is the controlling circumstance, which, under the statute, determines the legitimacy or illegitimacy of the child, and if the complaint is made after the birth of the child, it must relate back to the status of the mother when the child was conceived.

If the contention of appellee is sound, a woman giving birth to a child which was conceived during wedlock but born after the death of her husband, may then institute bastardy proceedings under the statute. In the case at bar, the decree of divorce, while it affected the status of the mother did not affect the status of the child, and to hold that the relatrix is entitled to prosecute bastardy proceedings, of necessity implies that it is within her power, by her own act in procuring a divorce, to affect the status of the child and to confer upon herself a statutory right which did not exist, and •which she was powerless to exercise prior to her divorce.

It is urged on behalf of appellee that the status of the mother as to being married or unmarried when the child is conceived is immaterial because the statute authorizes the institution of bastardy proceedings by her when she is pregnant with or delivered of a child which by law would be deemed a bastard, and at the common law a child is a bastard although conceived and born in wedlock if procreation by the husband is for any cause impossible. 3 Am. & Eng. Enc. (2nd Ed.) 872. Every child born in lawful wedlock or within a competent time after its determination is presumed to be legitimate (Zachman v. Zachman, 201 Ill. 380), and we think the word “deemed” is used in the statute in the sense of presumed rather than adjudged, so that the proper rendering of the language employed is: "When an unmarried woman who shall be pregnant, or delivered of a child which by law would be presumed a bastard, shall make complaint, etc. Thus interpreting the statute, it follows that under the presumption prevailing as to the legitimacy of a child born in wedlock or within a competent time after its determination, the child born to the relatrix would not be deemed a bastard.

Appellee relies upon the case of The People v. Volksdorf, 112 Ill. 292, as sustaining her contention, but the only question there involved was whether or not, under the statute, a married woman who had been delivered of a child prior to her marriage, could institute bastardy proceedings against the putative father, and it was held that the true construction of the statute required the mother to he unmarried at the time the child was born, and that the word “unmarried” in the statute did not properly relate to the time of making the complaint. The same considerations which warrant the holding that the mother must be unmarried when the child is born warrant the holding that she must be unmarried when the child is conceived.

Authority is not wanting to sustain the contention of appellant that, under the statute, a woman must be unmarried when the child is both conceived and born, in order to be competent to prosecute a bastardy proceeding, and our attention has not been directed to any case announcing a contrary doctrine.

The Statute of the State of Nebraska, the language of which is almost identical with that employed in our statute, provides: “That on complaint made to any justice of the peace in this State by any unmarried woman resident therein, who shall hereafter be delivered of a bastard child, or, being pregnant with a child which, if born alive, may be a bastard, accusing on oath or affirmation any person of being the father of said child, the justice shall take said accusation in writing,” etc. In considering this statute in Parker v. Nothomb, 60 L. R. A. 699, the Supreme Court of Nebraska, in a well-considered opinion, held that the status of the mother must he that of an unmarried person at the time the illegitimate child is both begotten and born.

In Bunn v. The People, 103 Ill. App. 336, this court held that in order to be deemed a bastard under the statute here involved, a child must be both begotten and born when the mother is an unmarried woman. A like holding is to be implied from the language of the court in Harrison v. The People, 81 Ill. App. 93, and in Drennan v. Douglas, 102 Ill. 341.

We conclude that the relatrix, being a married woman when she conceived the child which is alleged to he a bastard, was not authorized by the statute to prosecute this action, and that the judgment of the County Court should be and is reversed.

Reversed.


text:
    William Cassel, Appellee v. Chicago, Burlington & Quincy Railway Company, Appellant.

      Tender—effect of, in an action for damages occasioned ty fires communicated Toy locomotive engines. A tender of a specific amount by way of damages admits damages to such amount, and the only question to be determined on review is whether or not the damages awarded in excess of that amount are excessive.
    Action commenced before justice of the peace. Appeal from the County Court of Fulton county; the Hon. J. D. Bbeckbnbidge, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Harry M. Waggoner, for appellant; Chester M. Dawes, of counsel.
    U. G. Butcher, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellee recovered a judgment against appellant before a justice of the peace for $75, for damages occasioned by fires communicated to the property of appellee by locomotive engines operated by appellant. On appeal to the County Court, a trial by jury resulted in a verdict and judgment against appellant for $65, including $15 for attorney’s fees. After the trial of the case before the justice of the peace, appellant tendered to appellee the sum of $48.30, being $40 for damages and $8.30 for costs accrued up to the time of the tender.

By making a tender of $40 for damages sustained by appellee, appellant must be held to have admitted its liability to pay damages to that amount and, therefore, the only question properly before the trial court and before this court on this appeal, was and is, the amount of damages actually sustained by appellee. A careful consideration of the conflicting evidence, as it appears in the record, impels us to the conclusion that the verdict of the jury awarding to appellee the sum of $50 for the damages sustained by him, is not so excessive as to warrant us in setting it aside. The judgment of the County Court will, therefore, be affirmed.

Affirmed.


text:
    Enoch Harper, Appellant, v. Black Diamond Coal Company, Appellee.
    1. Instructions—when upon assumed risTc proper. Held, in this case, that the phrase “ordinary peril or danger of the service,” was properly used.
    2. Evidence—when form of question improper. A question leading in form is improper.
    3. Verdict—when inadequacy of, not ground for reversal. Notwithstanding it is apparent that the verdict in an action for personal injuries is small, it will not be disturbed on review in the absence of any indication that the jury in rendering such verdict were influenced by passion, by prejudice or by errors of law.
    4. New trial—when newly discovered evidence not ground for. Newly discovered evidence is not ground for a new trial where merely cumulative in character; likewise, newly discovered evidence is not ground for new trial where it is apparent that there was a lack of diligence in seeking to procure the same.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    W. J. Lawler, A. F. Bernard and Stevens & Stevens, for appellant.
    Hamilton, Catron & Sampson, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The count of the declaration upon which plaintiff relied for a recovery alleges that defendant operated a coal mine and that in a certain entry therein a portion of the roof was composed of rock and slate which was in loose, insecure and unsafe condition and liable to fall, of which condition defendant had notice; that plaintiff was employed in said mine as a common laborer in and about placing certain timbers in said entry, and that it became the duty of defendant not to order plaintiff to perform labor or be or remain under said rock or slate while the same was in the condition aforesaid; that notwithstanding its duty in that behalf defendant carelessly and negligently ordered plaintiff to go under said rock and slate and there cut a certain hole or hitch in the wall of said entry, and assured plaintiff that he would incur no danger from so doing; that thereupon plaintiff, while in the exercise of due care for his own safety and relying upon said assurance by defendant, went under said rock or slate and began to cut said hole or hitch, and that while so doing the said rock or slate fell from said roof upon and against plaintiff, whereby he was injured, etc. A trial by jury resulted in a verdict and judgment against defendant for $200, from which judgment plaintiff prosecutes this appeal, and urges as grounds for reversal, the giving by the court of improper instructions at the instance of defendant, the refusal of the court to admit competent evidence offered by plaintiff, improper remarks to the jury by counsel for defendant, that the damages awarded to plaintiff are grossly inadequate and the refusal of the court to grant a new trial because of newly discovered evidence.

The evidence discloses that plaintiff was employed by defendant in the capacity of a timberman and not as a common laborer as is alleged in the declaration, and that the duties of a timberman require special knowledge on his part of the condition of roofs in the entries of a mi Tie, the liability of material composing such roofs to fall unless properly timbered, and of the proper method to be adopted in timbering such roofs to secure their safety. It follows, therefore, that the duties of a timberman render Ms occupation extra hazardous. The crucial question in the case, the affirmative of wMch plaintiff was required to establish by a preponderance of the evidence, was whether or not the mine manager, Henderson, directed the plaintiff to take down a certain crossbar which was then supporting a portion of the roof and to cut a hole or Mtch at a certain place in the rib of the entry beneath the portion of the roof which had been supported by the crossbar, and upon the protest of plaintiff that the roof at that place was dangerous, then assured plaintiff that the roof was all right. Upon this issue the evidence was close and conflicting and the jury would not have been unwarranted in determining it in favor of either party. The evidence introduced on behalf of defendant tended to show that plaintiff undertook to do the work with full knowledge of the existing conditions ; that both he and the mine manager then considered the roof to be in a reasonably safe condition; that plaintiff made no protest and the mine manager gave no assurance of safety, and that plaintiff was guilty of contributory negligence in failing to sound the roof from time to time, during the progress of the work, for the purpose of ascertaining its condition.

The second instruction given at the instance of defendant informed the jury that where an employment is attended with danger, a servant engaging in it assumes the hazard of such ordinary perils and dangers as are incident to such employment, and if he receives an injury from an accident which is the result of the service he cannot recover damages therefor. It is urged that the phrase in the instruction “ordinary peril or danger of the service,” must have been understood by the jury to mean any falling of the rock or slate, regardless of the circumstances surrounding the fall, and that they were thus influenced to overlook the fact that a servant acting by direct command of the master or after protest and an assurance of safety, might recover for an injury received in consequence of Ms obedience or Ms reliance upon such assurance of safety. The phrase above quoted necessarily excludes from consideration that class of risks which are not ordinarily incident to the employment and wMch only accrue in obedience to a direct command by the master or in reliance upon an assurance of safety by the master after a protest by the servant. The instruction states the law applicable to the case upon the theory of defendant with substantial accuracy, and taken in connection with the other given instructions, could not have operated to mislead the jury to the prejudice of plaintiff. Plaintiff selects for criticism a single paragraph in the seventh instruction given at the request of defendant and it may be conceded that standing alone that paragraph would have had a tendency to mislead the jury. The concluding paragraph of the instruction, however, expressly exempts the case as alleged in the declaration from the application of the rule stated in the preceding paragraph.

Upon the direct examination of a witness called on behalf of plaintiff he was interrogated by counsel as follows: “I will ask you whether in that mine that roof will sound all right in response to tapping and drumming with a pick and in a minute or two, fall?’7 The question was objected to as being leading and the objection was sustained. The question was clearly leading and the objection was properly sustained.

Certain alleged remarks by one of counsel for defendant in Ms opening statement to the jury are complained of, but as such remarks are not incorporated in the bill of exceptions and do not appear to have been objected to by counsel for plaintiff, no question pertaining thereto is properly presented for review.

The injury received by plaintiff consisted of a com-minuted fracture of the lower third of the right leg. While the damages awarded to plaintiff for the injury sustained appear somewhat small, and are undoubtedly less than are usually awarded by a jury to a plaintiff injured under like circumstances, we are not prepared to say, in the absence of any indication in the record that the jury were influenced by passion or prejudice or by errors of law, that they are so grossly inadequate as to justify a reversal of the judgment.

The existence of the alleged newly discovered evidence relied upon by plaintiff in his motion for a new trial was known to plaintiff prior to the trial, and the affidavit discloses a want of diligence in procuring it. Furthermore, such evidence was merely cumulative.

There is no error in the record prejudicial to plaintiff and the judgment of the Circuit Court will be affirmed.

Affirmed.


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    R. Haas Electric & Manufacturing Company et al., Defendants in Error, v. Springfield Amusement Park Company et al., Plaintiffs in Error.
    1. Mechanic’s hens—when error in allowing specific items cured. A general credit conceded by the petitioner, sufficiently large to cover improper allowances made by the court, will be applied by a court of chancery in extinguishment of such improper allowances and operates to cure the error in originally making the same.
    2. Masters in chancery—when report conclusive. The report of a master in chancery is conclusive upon the parties as to all questions covered by it but not excepted to.
    Bill in chancery. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1907.
    Decree modified and affirmed.
    Opinion filed April 21, 1908.
    Shutt, Graham & Graham and Albert Salzenstein, for plaintiffs in error.
    William A. Northcott, Alonzo Hoff, Walter A. Orr and Barber & Barber, for defendants in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This was a hill in chancery filed by the defendant in error, The E. Haas Electric & Manufacturing Company, hereinafter called Electric Company, against plaintiffs in error, .the Springfield Amusement Park Company, hereinafter called Park Company, Thomas D. Hogan, P. Eeisch and Brothers, and certain other parties, and defendant in error, Peter Vredenburgh Lumber Company, hereinafter called Lumber Company, to enforce a mechanic’s lien.

The bill alleges that the Electric Company entered into a written contract with the Park Company on March 2, 1900, to furnish all labor and materials for electric wiring, motors, accessories, plumbing, piping, etc., to be used in the building and in said Park Company’s White City plant, known as Eeisch’s Park, at regular retail prices, and that in consideration of the contract, the Electric Company subscribed $1,000 of the capital stock of the Park Company, said subscription to be paid for by material and labor furnished by the Electric Company; that the Electric Company commenced work under said contract upon the premises described in the bill and furnished all the labor and materials and complied in all respects with the contract and that there was due it under said contract the sum of $4,297.36, together with interest at 5 per cent, from July 5, 1906, as shown in detail in a schedule attached to the bill; that the Park Company failed to pay said money and complainant is therefore entitled to a lien on the premises; that the other defendants therein have or claimed some interest in the premises, which, however, is subject to the lien of complainant and that all of the defendants knowingly permitted said Park Company to contract, receive and obtain the said materials and labor, and the same are valuable and permanent improvements on the premises. The defendant in error, Lumber Company, answered the bill, neither admitting nor denying any of its allegations but demanding strict proof of the same and alleging that it had a lien on the same premises under a contract with the Park Company made April 31, 1906, whereby it subscribed for $1,000 of the captital stock of said Park Company and in consideration thereof said Park Company agreed to buy and order from it all the lumber and building materials for the construction of all buildings, booths, stands and other improvements which were to be constructed by said Park Company upon the premises described in the bill, to be paid for at such prices as the same were reasonably worth; that the Lumber Company was to pay said stock subscription by giving said Park Company a credit of $1,000 in part payment for said lumber and materials, and that all said lumber and material was to be paid for upon the completion of the delivery thereof upon said premises; that in pursuance of said contract it furnished and delivered to said Park Company, upon said premises^ a large quantity of lumber and other materials for use in the construction of buildings, booths, stands and improvements made by said Park Company, an itemized schedule of which is thereto attached; that all of said improvements were authorized and knowingly permitted to be erected upon said premises by Thomas D. Hogan, the owner of said premises, and all other parties interested therein; that final delivery of lumber and materials was made July 20,1906, and that there was due to said Lumber Company therefor, after allowing credit for the said stock subscription and all other credits, the sum of $5,926.19. After answer and replication filed the cause was referred to the master in chancery to take and report the proofs therein, together with his conclusions. The master filed his report, wherein he found that the Electric Company and the Lumber Company were each entitled to a lien upon the premises involved; that there was due to the Electric Company $4,297.36 with interest from July 5, 1906, amounting to $4,461.50 and to the Lumber Company $4,111.73; also that the Electric Company was entitled to $160 and the Lumber Company to $125 as solicitor’s fees, to be taxed as costs.

Objections filed to such report were overruled by the master and the cause was heard by the chancellor upon such objections standing as exceptions. Upon such hearing the exceptions were overruled by the chancellor and a decree entered in substantial conformity with the recommendations of the master.

On October 29, 1903, the plaintiff in error Hogan, the owner of the premises against which liens are sought to be enforced, executed a written lease of the same for saloon and park purposes to plaintiffs in error, F. Beisch and Brothers, for the term of five years from November 1,1903, with the privilege of five •years additional, and on April 1, 1906, F. Beisch & Brothers, with the consent of Hogan, sublet the said premises to plaintiff in error, Park Company. By his written consent to said subletting, Hogan agreed that the Park Company should have the right to make improvements on the leased premises, provided that all improvements, alterations and additions made by said Park Company should remain on the premises at the expiration of the lease for the benefit of Hogan.

It is first contended on behalf of plaintiffs in error that the evidence in the record does not warrant a finding that defendants in error are entitled to a lien on the premises as against the interests therein of Hogan and F. Beisch and Brothers. Section 1 of the act relating to mechanic’s liens in force July 1, 1903, provides, that any person who shall by any contract or contracts, expressed or implied, or partly expressed or partly implied, with the owner of a lot or tract of land, or with one whom such owner has authorized or knowingly permitted to contract for the improvement of, or to improve the same, furnish material and labor in making such improvement, shall have a -lien upon such lot or tract of land, and that such lien shall extend to an estate in fee, for life, for years or any other estate. The evidence discloses beyond controversy that the improvements made upon the premises by the labor and materials furnished by the Electric Company, and the lumber and materials furnished by the Lumber Company, were all of the character necessa-. rily contemplated by the parties in the agreement subletting said premises by F. Beisch and Brothers to the Park Company, to which agreement Hogan gave his written consent, and that a major part of the improvements so made upon said premises were permanent and substantial improvements for which liens were enforceable. Furthermore, the evidence discloses that plaintiff in error Hogan was personally present on the premises while the materials were being furnished and the labor was being performed, and that he had full knowledge of the making of the various improvements.

It is next insisted that the decree is erroneous in that it awards to the Electric Company interest upon the $1,000 which it subscribed to the capital stock of the Park Company, and which amount was to be credited upon its bill for materials and labor. This insistence arises, we think, from a misapprehension of the terms of the decree. At the time the decree was entered the amount of its subscription to the capital stock of the Park Company had not been credited by the Electric Company upon its claim, presumably because no certificate of stock had been delivered to it, and the decree adjudged the amount due from the Park Company to the Electric Company to be $4,461.50, with interest thereon from the date of the decree, but the decree further provides that $1,000 of the amount so adjudged to be due, with interest on said $1,000 from July 5, 1906, to the date of the decree, might be paid by the Park Company to the Electric Company in $1,000 of the capital stock of said Park Company, and which $1,000 of capital stock should be applied as a credit upon $1,000 of the claim with interest thereon from July 5, 1906. In other words, we interpret the decree as authorizing the Park Company to offset $1,000 of its capital stock against $1,000 of the amount of the claim together with interest thereon from July 5, 1906. This allows a credit to the Park Company of $1,000 as of the date of July 5, 1906, and consequently no interest is to be computed thereon. •

It is also urged that many of the charges made both by the Electric Company and the Park Company in their claims for labor performed and materials furnished are not of a character for which the statute authorizes a lien. So far as this objection relates to charges made by the Electric Company our attention is directed to certain charges for street car tickets, meals for superintendent and electricians, electric motors, sulphuric acid carboys, reflectors, light clusters, lamps, poles, pole tops and stringing wires, aggregating about $550 in amount, for which that company was not entitled to a lien, and it is practically conceded by it that some of the charges are subject to the objection made. Before 4he decree was entered a general credit of $158.16 had been allowed to the Park Company by the Electric Company upon its claim, and since the decree was entered it is admitted by counsel for the Electric Company that the Park Company has paid to it, to be applied as general credits upon its indebtedness, the sum of $2,500 as follows: June 26, 1907, cash $500; July 9, 1907, cash $500; July 9, 1907, 20 shares of capital stock, as per contract, $1,000; and August 30, 1907, cash $500. These various general credits aggregate in amount considerably more than the aggregate of the charges for which the Electric Company could not properly claim a lien, and in conformity with a well-established rule in equity the court will apply such general credits so as to give the Electric Company the best security for the debt remaining unpaid. Monson v. Meyer, 190 Ill. 105; Barbee v. Morris, 221 Ill. 382. Applying this rule to the application of the general credits upon the claim of the Electric Company, it is clear that that company is entitled to enforce a lien for the whole amount now remaining due and unpaid to it.

The same objection is urged as to some of the items in the claim of the Lumber Company. The total amount of the original claim of the Lumber Company for materials fu.rnisb.ed to the Park Company was $11,954.58 and at the time it filed its answer asserting its lien, there' had been paid to it by the Park Company as a general credit upon its claim $6,000 in cash and a credit of $28.39 arising out of a particular transaction, leaving the amount then due it $5,926.19, and after the filing of its answer and before the entry of the decree there was paid to it by the Park Company $1,814.46, leaving a balance remaining due to it as found by the master of $4,111.73. The general credits upon the account of the Lumber Company more than offset -the aggregate amount of items for which it was not entitled to a lien, and applying the principle above stated, it is clearly entitled to a lien for the amount now due and unpaid to it.

It is further urged on behalf of plaintiffs in error that there is no proof in the record to sustain the allowance by the chancellor of solicitor’s fees to the lien claimants, to be taxed as costs, and for that reason the decree is erroneous in that regard. The report of the master, which was filed May 8, 1907, shows that on April 9, 1907, and on April 19, 1907, he proceeded to take the testimony of certain witnesses, who were familiar with the usual and customary fees there allowed and paid to solicitors in chancery, as to the value of the services of the solicitors for the respective lien claimants, and who fixed the value of such fees, and that the master upon such proof recommended the allowance of such fees to be taxed as costs, and the same was accordingly done in the decree entered by the court. There being sufficient competent evidence in the record to warrant the allowance of such fees, plaintiffs in error are bound by the report of the master upon that subject, as they neither objected to the findings of the master in that regard nor excepted to such findings before the court.

The report of the master found the amount remaining due and unpaid from the Park Company to the Lumber Company to be $4,111.73 and made no finding that any interest was due on said amount, or that the Lumber Company was entitled to any interest thereon. No objections were filed by the Lumber Company to the finding of the master in that respect, but, nevertheless, the court in its decree found the amount due the Lumber Company to be $4,317.83, which amount was ascertained by computing the interest upon the amount found to be due by the master at $206.10, and adding the same to the amount so found by the master. In this respect we think the decree was erroneous. The report of a master in chancery is conclusive upon the parties as to all questions covered by it not excepted to. Gehrke v. Gehrke, 190 Ill. 166; Glos v. Hoban, 212 Ill. 222. Defendant in error Lumber Company having failed to object to the finding of the master as to the amount due to it was bound by such finding and the chancellor was not authorized in awarding to it a greater amount than the amount found to be due by the master.

The decree of the Circuit Court will be and is hereby modified so as to require the Park Company to pay to the Lumber Company the sum of $4,111.73 with lawful interest thereon from July 8, 1907, the date of the decree, until paid, instead of the sum of $4,260.18 with like interest as provided in the decree, and in case the sale of the premises involved becomes necessary, the master in chancery out of the proceeds of such sale will pay to the Lumber Company the sum of $4,111.73 with lawful interest thereon to the day of sale, instead of the sum of $4,317.83 with like interest, as provided in the decree, and in all other respects said decree will be affirmed.

Decree modified and affirmed.


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    Josephine Long, Appellee, v. John M. Barton et al., Executors, Appellants.
    1. Decebe—when cannot he attached. A decree of divorce cannot be collaterally attacked.
    2. Contracts—when cancellation of ante-nuptial contract effective. A decree of divorce fixing alimony in gross and providing that the same be in lieu of all dower rights, etc., operates to cancel an ante-nuptial contract providing for the payment of a gross sum in lieu of dower.
    Contested claim in court of probate. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed.
    Opinion filed April 21, 1908.
    J. B. Mann, for appellants.
    Mabin & Morris, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

On October 1, 1901, Philip H. Barton and appellee entered into an ante-nuptial contract, whereby Barton, in consideration of a marriage to be solemnized between said parties, agreed that appellee should, after his death, have in lieu of dower the sum of $5,000, to be paid to her out of his estate, after the payment of his debts and funeral expenses, and in consideration of the payment of said sum, appellee agreed to relinquish and waive all her dower rights in the estate of said Barton, which might accrue to her, under the laws of Illinois, by reason of said marriage. On the day following the execution of said contract, the parties were married, and continued to live together as husband and wife, until shortly prior to the filing by appellee, at the January term, 1904, of the Circuit Court of Vermilion county, of her bill for divorce from said Barton. As grounds for divorce the bill alleged adultery, habitual drunkenness and extreme and repeated cruelty, and prayed that the marriage be dissolved and that said Barton be required to pay her such sum of money as might be deemed necessary and proper for her support and to enable her to prosecute her suit, and for her support during the pendency thereof, and that she might have such other and further relief as equity might require, etc. Upon a trial by jury of the issues joined in said suit for divorce, Barton was found guilty of adultery and of extreme and repeated cruelty as alleged in the bill. Upon the motion for a new trial the court set aside the verdict as to the charge of adultery and permitted it to stand as to the charge of cruelty, and entered a decree dissolving the marriage, and concluding as follows:

“And as to the allowance of alimony to be paid by the defendant to the complainant, it is ordered, adjudged and decreed by the court that the defendant pay to the complainant the sum of $2,000, and to complainant’s solicitors, * * * the sum of $125, as a reasonable fee for their services herein; upon the execution and delivery to him of a quit-claim deed, releasing all her interest in the real estate of the defendant; and the defendant pay the costs of this proceeding, to be taxed by the clerk of this court, each and all of said sums to be paid within twenty days from the rendition of this decree, and in default of the payment of any of said sums of money, in the manner and at the times herein provided, that execution issue therefor; that this decree shall be and remain a lien upon all the lands and tenements of the defendant until each and all of said sums are fully paid.
11 It is further ordered that the payment of said sum of $2,000 by defendant to complainant, shall also be considered as in lieu of and in full satisfaction of complainant’s contingent right to dower and all other rights to the lands and tenements of the' defendant now owned by him, and by him hereafter acquired.
“It is further ordered that complainant be allowed to resume her maiden name of Josephine Long.”

Barton in his lifetime paid to appellee and she received the sum of $2,000 in pursuance of the terms of the decree, and, thereafter, he died testate. After his death appellee filed her claim, in the County Court against his estate for the sum of $5,000, alleged to be due her by the terms of the ante-nuptial contract, and the same was there allowed. Appellants prosecuted an appeal to the Circuit Court, where, upon a hearing, said claim was again allowed, and this appeal followed.

The marriage of the parties constituted a sufficient consideration for the ante-nuptial contract: Colbert v. Rings, 231 Ill. 404. The provision therein made for appellee was a substitute or equivalent for her. contingent right of dower in the estate of which Philip H. Barton might die seized, and it necessarily follows that if she lost that right of dower the substitute or equivalent therefor would in like manner also become lost to her. Jordan v. Clark, 81 Ill. 465.

If Barton had procured a divorce from appellee because of her fault or misconduct, it is conceded that she would be barred from asserting a claim under the contract here involved. Clarke v. Lott, 11 Ill. 105; Jordan v. Clark, supra. The mere execution by appellee of the ante-nuptial contract did not operate to bar her contingent right of dower, and the contract did not constitute an unqualified liability on the part of Barton’s representatives to pay to appellee the sum of $5,000. Considering the contract alone, the waiver by appellee of her right of dower was merely contingent and only became consummate upon the payment to her of the sum of money named therein. Until that sum was paid she had all the rights as a doweress to which she would have been entitled if no contract had existed.

It is not denied by appellee but that a court of equity may, in a proceeding for divorce, decree to a complainant wife, as alimony, a sum in gross, and provide that the sum shall be received by her in lieu of her right of dower in the estate of her husband, but it is insisted that the decree of divorce introduced in evidence in the case at bar by appellants, insofar as it provided that the payment of $2,000 by Barton to appellee should be considered as in lieu of and in full satisfaction of appellee’s contingent right of dower and all other rights in the lands and tenements then owned or thereafter acquired by Barton, was not responsive to the prayer of the bill, and should be ignored or treated as surplusage.

It is manifest that the provision in the decree barring appellee’s right of dower in the estate of Barton, upon the payment by him to her of the sum of $2,000, was not inserted by accident or through mere inadvertence, but by design. The decree not only contains the provision above substantially quoted, but it also provides that appellee shall execute and deliver to Barton a quit claim deed releasing to him all her interest in his real estate. Furthermore, the decree of divorce cannot be questioned in this collateral proceeding. Marvin v. Collins, 48 Ill. 156.

The provision in question in the decree of divorce put appellee upon her election to take the sum named therein in lieu of dower as therein provided, or to await the death of Barton and assert her claim against his estate for the amount named in the ante-nuptial contract in lieu of the same right. By accepting the sum of $2,000 paid to her by Barton under the terms of the decree, appellee must be held to have elected to accellerate the time when she should realize on her agreement to accept $5,000 in lieu of dower and that she would then accept the sum of $2,000 in full compensation therefor instead of awaiting the time fixed in the ante-nuptial contract. She may have been prompted to so elect upon a consideration of the possibility that she might die before Barton, or that he might die leaving insufficient property to pay her claim under the contract, in either of which events her right to recover thereunder would be lost.

The judgment of the Circuit Court will be reversed but the cause will not be remanded.

Reversed.


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    The People, Defendant in Error, v. E. T. Brewer, Plaintiff in Error.
    1. Gambling—when evidence sufficient to sustain charge of keeping gambling house. Held, that the evidence in this case was sufficient to establish the charge of keeping a gambling house, contrary to the statute.
    2. Criminal law—when jurisdiction to sentence not lost. The taking of a motion for a new trial in a criminal case by the court under advisement, without permitting the accused to go upon his own recognizance, does not oust the court of jurisdiction to enter judgment of conviction at an ensuing term.
    3. Criminal law—when presence of accused not essential to imposition of sentence. Where the offense is a misdemeanor and the punishment imposed is simply a fine, the presence of the accused is not necessary at the time of entry of judgment and the imposition of sentence.
    Criminal prosecution for keeping gaming house. Error to the County Court of Sangamon county; the Hon. George W. Murray, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    C. F. Mortimer and John G. Friedmeyer, for plaintiff in error.
    Frank L. Hatch, for defendant in error; W. St. J. Wines, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

On March 6,1906, plaintiff in error was convicted hy a jury in the County Court of Sangamon county, of the offense of keeping a common gaming house, as charged in the second count of the information. On the following day plaintiff in error entered his motion for a new trial, and after argument on the motion, the same was taken under advisement by the court, and on March 9, 1907, the motion for a new trial was overruled. Thereafter, on May 18, 1907, during the absence of plaintiff in error, hut in the presence of his counsel, the court entered judgment upon the verdict and sentenced plaintiff in error to pay a fine of $100 and costs, and to stand committed until such fine and costs were paid, or the plaintiff in error discharged according to law.

It is first urged that the verdict of the jury is contrary to the weight of the evidence. The evidence shows beyond controversy, and it is conceded by plaintiff in error, that during the time in question, gambling was extensively carried on in a room in the second story of a building in Bidgely (a suburb of Springfield), occupied by James Kelley as a saloon. While there is no proof in the record tending to show that plaintiff in error participated in any game for money, the evidence is uncontroverted that he was present in and about the room at all times during the day and night; that he talked to persons in the room; that on one occasion he placed a cover upon a table, arranged the chairs for players, and procured the necessary chips to be used in play; and that on another occasion when one of the players remarked that he was going on the last car plaintiff in error informed him that a hack would be running every hour until morning. This we think was sufficient to justify the jury in finding that plaintiff in error was at least sufficiently aiding and abetting the commission of the offense charged in the second count of the information, and that he was, therefore, guilty as a principal. Stevens v. The People, 67 Ill. 587; State v. Hildreth, 51 Am. Dec. 369, note 375.

It is next urged that as the verdict of the jury and the motion for a new trial were entered at the February term, 1906, and the motion for a new trial was taken under advisement until the February term, 1907, when the same was overruled, and the judgment was not entered and sentence imposed until the April term, 1907, that the court lost jurisdiction to enter said judgment and impose said sentence. In support of this contention counsel for plaintiff in error cite the cases of People v. Allen, 155 Ill. 61, and People v. Barrett, 202 Ill. 287. In the Allen case the defendant pleaded guilty to the charge, but judgment upon this plea was stayed, and he was permitted by the court to depart therefrom without recognizance to appear again for sentence. More than three years thereafter the case was stricken from the docket, but at the following term of the court, it was reinstated, and the defendant was sentenced to the penitentiary. It was there held that it was the duty of the courts in criminal cases “upon a conviction or plea of guilty, to pronounce judgment at that time, unless upon motion for new trial, in arrest of judgment, or for other cause, the case is continued for further adjudication, and the defendant by recognizance or being held in custody, required to continue to answer the charge, and if they fail to perform that duty, but discharge the prisoner or permit him to go-indefinitely, their power and jurisdiction over him cease and a subsequent sentence is without judicial authority.” In the Barrett case the defendant, after his conviction, moved for a new trial, and on his motion the cause was continued until the next term, which began the second day following, and he was permitted to depart from the court on his own recognizance. No further steps were taken in the case for two years and five months, when the motion for new trial was overruled and the defendant was sentenced to the penitentiary.

In the case at bar plaintiff in error on July 3, 1905, entered into recognizance with sureties conditioned as provided in paragraph 297 of the Criminal Code. Hurd’s Stat. 1905, 733. That recognizance was never released, and the record does not disclose any action by the court staying proceedings, or permitting plaintiff in error to depart from the court upon his own recognizance or otherwise. This case is, therefore, distinguishable from the cases cited.

When the motion for a new trial was entered by plaintiff in error at the February term, 1906, and no action taken thereon at that term the case stood continued until the next term of the court in accordance with the provision of paragraph 56, chapter 37, Hurd’s Stat. 1905. The delay in entering judgment and imposing sentence from the February term, 1907, when motion for a new trial was overruled, until the April term following, we do not regard as so unreasonable as to oust the court of jurisdiction to enter judgment and impose sentence. The practice, however, of delaying action by the court upon a motion for a new trial and in entering judgment and imposing sentence after conviction, as was done in this case, is not conducive to the wholesome administration of justice and should be discouraged.

The offense being a misdemeanor and the punishment imposed by the court being a fine only, the presence of the defendant was not necessary at the time judgment was entered and sentence imposed. Harris v. People, 130 Ill. 457. The judgment of imprisonment for failure to pay the fine and costs was not imposed as a penalty for the offense of which plaintiff in error was convicted, hut was a mere incident to the fine, for the purpose of enforcing its payment.

We find no reversible error in the record and the judgment will be affirmed.

Affirmed.


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    Bertha E. Bussert et al., Defendants in Error, v. Charles Coleman, Plaintiff in Error.

      Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Trespass on the case. Error to the Circuit court of McDonough county; the Hon. George W. Thompson, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    David Chambers and Cooke & Stevens, for plaintiff in error.

      Neece & Elting, for defendants in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Defendants in error, the wife and daughter, respectively, of William M. Bussert, recovered a verdict and judgment against plaintiff in error for $2,000 as damages for injury to their means of support occasioned by the intoxication of said Bussert alleged to have been caused in whole or in part by intoxicating liquor sold to him by plaintiff in error.

It is not controverted by plaintiff in error that Bussert was intoxicated at the time he received the injury alleged in the declaration, or that such intoxication was the proximate cause of the injury, but the judgment is sought to be reversed solely upon the ground that the verdict of the jury finding that plaintiff in error sold to Bussert intoxicating liquor, which, in whole or in part, caused his intoxication, is against the manifest weight of the evidence.

On November 6, 1905, Bussert, together with two boon companions, Purman and Minner, went from Ma-comb to Bushnell, on a freight train. The evidence tends to show that while they were riding in the box car, they drank some whisky, and that upon their arrival at Bushnell, Bussert was under the influence of liquor. Bussert testified unequivocally that upon arriving at Bushnell, he drank whisky at the saloon of plaintiff in error, and in this he is corroborated by Purman and Minner. True, the evidence of Purman and Minner upon this question is not entirely clear and satisfactory, but a careful consideration of their testimony, as it appears in the record, convinces us that their apparent failure to remember in detail what then occurred, was prompted by a desire on their part to shield plaintiff in error, rather than by a sense of their obligation to tell the truth, the whole truth and nothing but the truth. Purman testified that he was in the saloon of plaintiff in error with Bussert and Minner; that Minner and himself took a drink in the saloon; that he conld not remember whether Bnssert took a drink also, but thought he did. Minner testified that he drank whisky with Bnssert and Pnrman in one or more saloons in Bushnell; that he did not remember just what saloon. The testimony of plaintiff in error and several other witnesses on his behalf, to the effect that Bnssert was in his saloon about 9 o’clock in the evening and that he then refused to sell him anything, is not inconsistent with the testimony of Bnssert, corroborated, as above stated by the testimony of Pnrman and Minner, to the effect that he (Bnssert) drank whisky in the saloon of the plaintiff in error at about seven o’clock in the evening.

We are not prepared to say that the verdict of the jury upon the issue involved was against the manifest weight of the evidence, and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Cleveland Seed Company, Appellee, v. William Moore et al., Appellants.
    1. Evidence-what answers of witness properly striclcen out. The conclusions of a witness are incompetent and are properly stricken out.
    2. Evidence-when admission of, in rebuttal, not strictly so, not ground for reversal. It is within the sound judicial discretion of the court to admit or to refuse to admit evidence in rebuttal which is not strictly so in character, and no reversal will follow from the action of the court in the absence of an abuse of such discretion.
    3. Evidence-when explanation of statements contained in letters competent. A witness may he permitted to explain a statement contained in a letter written by him, where such letter does not form the basis of the action or the defense thereto.
    Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    James H. Dyer and H. M. Steely, for appellants.
    Lindley, Penwell & Lindley, for appellee; W. M. Acton, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is. an action of assumpsit to recover the purchase price of 140 bushels of seed corn at $4 per bushel and twenty-seven bushels of seed corn at $7 per bushel. To the declaration, which consists of the common counts, defendants filed pleas of the general issue and set-off. The plea of set-off avers that defendants are raisers and canners of sweet corn, and that in the early part of 1903 they employed the Western Seed and Irrigation Company to purchase for them as their agent or broker, 500 bushels of Stowell’s Evergreen Seed Corn; that in pursuance of such agency said Western Seed and Irrigation Company contracted with the Cleveland Seed Company, plaintiff, for 500 bushels of seed corn of 85 per cent germinating vitality at $4 per bushel, f. o. b. cars, Rochester, New York, and that in pursuance of such contract the Cleveland Seed Company, on, to-wit, March 5,1903, furnished and delivered to defendants upon said contract 140 bushels of seed com, failed, refused and neglected to furnish to defendants the residue of 360 bushels; that seed com advanced in the market, to-wit, $15 per bushel, and that by reason thereof defendants. sustained loss to the amount of $3,000, etc. A trial by jury in the Circuit Court of Vermilion county resulted in a verdict and judgment in favor of plaintiff and against defendants for $749, being the total amount claimed by plaintiff, and defendants appealed.

The only evidence of the alleged contract for the sale of 500 bushels of seed corn at $4 per bushel by appellee to the Western Seed and Irrigation Company consists of certain telegrams and letters which- it is not necessary to here set out in detail. It is sufficient to say that the several telegrams and letters referred to, were merely propositions and counter-propositions for the purchase and sale of said seed corn, and did not constitute a complete and binding contract therefor between the parties. Neither is there any competent evidence tending to show that the Western Seed and Irrigation Company acted as agent or broker for appellants in the transaction. The fact is that the Western Seed and Irrigation Company was an independent purchaser and seller of seed corn and that as regards the transaction in question it negotiated with appellee for the purchase of 500 bushels of seed corn at $4 per bushel, f. o. b. Bochester, N. Y., which it proposed to sell to appellants at $5 per bushel f. o. b. Hoopeston, Ill. In this state of the case, conceding that a binding-contract was entered into between appellee and the Western Seed and Irrigation Company, appellants could not maintain an action thereon as undisclosed principals.

Appellants also attempted to sustain their plea of set-off upon the theory that there was an express ratification or adoption by appellee of the terms of the alleged contract between the Western Seed and Irrigation Company and appellee, whereby appellee becomes bound to appellants. In support of this theory Charles C. Crary, one of appellants, testified that he had an interview with Seth M. Pease, president of appellee, at the office of.the latter in Bochester, N. Y., on February 20,1903; that he then told Pease that the Illinois Canning Company was the principal in the transaction with the Western Seed and Irrigation Company, and that as he had been unable to get any assurance from the latter company as to when shipment of seed corn would be made, he had come to see if he could not arrange for an immediate delivery; that he then had all the correspondence between the parties with him, and offered to show it to Pease, hut the latter said he did not want to see it; that Pease said, the contract with the Western Seed and Irrigation Company required the furnishing of seed that tested 85 per cent germination, and' he (Pease) had not received any seed from his growers that would germinate that high; that he saw a particular lot of seed on the floor of the warehouse which Pease said had not been tested; that it was a nice looking lot of seed, except that it needed further drying, and that he told Pease he would be willing to waive the question of percentage of germination and accept that particular lot of seed, so far as it would apply on the contract, and that Pease told him he would let him have it at $4 per bushel; that he told Pease that the quality of this particular lot of seed was sufficiently good so that if he would give him 150 bushels of seed corn, equally good, he would waive entirely the guaranty of 85 per cent, germination; that Pease said he had some seed corn yet to come in and did not know what he could do, but would, let him know later in regard to it. The particular lot of seed corn referred to measured 140 bushels, and was shipped to and received by appellants. Crary further testified that upon the same occasion be purchased by sample a lot of seed corn consisting of twenty-seven bushels for $7 a bushel, for shipment to C. W. Swain at Wilmington, Ohio. The evidence discloses that the twenty-seven bushels of seed corn was shipped by appellee as directed, but the shipment was refused by the consignee, because upon the bill therefor there appeared printed matter as follows: “While we exercise the greatest care to have all seeds pure and reliable, we do not give any warranty, expressed or implied, and will not be in any way responsible for the crops. If the purchaser does not accept the seeds on these conditions they must be returned at once. T. C. S. Co.”

Seth M. Pease testified that when. Crary came to Eochester and told him that appellants were to have the seed corn which the Western Seed and Irrigation Company contracted for, he told Crary that appellees had no contract with the company; that Crary asked him if he (Pease) would let appellants have the seed corn then in the warehouse and which had been examined by them, and that he told Crary that it had not yet been tested, that it was damp and could not be tested for some time, but that appellants could have it for $4 per bushel in its then condition; that Crary said he would take the corn at that price; that he told Crary if any more corn as good as the lot containing 140 bushels came he would let appellants have it, but that no corn of that grade subsequently came in. As to the lot of seed corn containing twenty-seven bushels, Pease testified that Crary fully inspected it before purchasing, and said he would take the lot and take his chances. The testimony of Seth M. Pease is corroborated in the main by the testimony of his son Henry, who was also present upon the occasion in question. We think the jury were fully warranted in finding that the two lots of seed corn containing 140 bushels and twenty-seven bushels, respectively, were purchased by Crary, acting for appellants under an independent contract, without any reference to the alleged contract between appellee and the Western Seed and Irrigation Company, and that there was no ratification or adoption by appellee of such alleged contract.

It is urged that the witness Seth M. Pease was improperly permitted to testify as to certain self-serving memoranda made by him with reference to the sale to appellants of the lot of seed corn containing 140 bushels. We find no such testimony in the record. The witness merely testified that he picked up a contract blank and wrote down an order. The order written by the witness was not admitted in evidence and thus does not disclose what it contained.

Appellants complain because they were not permitted to show the percentage of germination of the 140 bushels of seed com. Upon their own theory appellants had waived the provision in the alleged contract regarding germinating vitality of the corn, and we do not see the relevancy of the inquiry as to the germinating vitality of the 140 bushels.

The statement by the witness Crary that the 140 bushels of corn delivered on the alleged contract between appellee and the Western Seed and Irrigation Company was merely the conclusion of the witness and was properly excluded. The jury were impaneled and sworn to determine that question.

Whether or not the Western Seed and Irrigation Company acted independently or as agent or broker for appellants in conducting the negotiations with appellee was determinable from the correspondence between the parties, and the court properly excluded parol evidence offered by appellants upon that question. Appellants, however, secured the desired evidence from the witness Emerson.

It is urged that appellee was improperly permitted to introduce certain evidence in rebuttal which was only properly admissible in chief. The propriety of admitting such evidence in rebuttal is within the sound judicial discretion of the trial court, and the exercise of such discretion will not be reviewed on appeal. Hartrich v. Hawes, 212 Ill. 334.

The court did not err in permitting the witness Seth M. Pease to explain a statement in a letter written by him, as president of appellee, to appellants. The letter formed no part of the alleged contract between appellee and the Western Seed and Irrigation Company and was introduced by appellants as tending to establish an admission by appellee of its liability. Under such circumstances the evidence of the witness explanatory of the statement in the letter was competent. Smith v. Mayfield, 163 Ill. 447.

. The eighth instruction given at the instance of appellee is awkwardly constructed and somewhat ambignous, but we do not think it necessarily bears the construction put upon it by'appellants, or that it operated to their prejudice. Whatever ambiguity there is in the instruction is cured by the sixth instruction given at the request of appellants.

It is insisted that the fourth instruction given at the instance of appellee is erroneous because it is based upon the hypothesis that if the 140 bushels of seed corn was sold to appellants under an independent contract the jury would be warranted in finding for appellee upon that issue. If the 140 bushels of corn was sold under an independent contract there was no basis for appellants’ claim of set-off, which claim was only available if the corn was sold under the alleged contract between appellee and the Western Seed and Irrigation Company. The instruction is not subject to the criticism urged against it.

The four instructions given at the instance of appellee could not have misled the jury when considered in connection with appellee’s third instruction, which embodies every element essential to a recovery upon appellee’s theory of the case.

The action of the court in giving, refusing and modifying certain other instructions is urged as error, but upon a consideration of the same we fail to find any prejudicial error therein.

The merits of this controversy appear from the evidence in the record to be with appellee, and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    James Dukeman, Administrator, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Instbucttons—when omissions of, may be cured. The omissions of an instruction may be cured by the contents of other instructions given, if the instruction subject to criticism does not assume to direct a verdict.
    2. Appeals and errors—when former decision conclusive. The decision of the Appellate Court upon one appeal is conclusive upon a subsequent appeal in the same cause, there being no substantial difference in the evidence.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Coles county; the Hon E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed June 11, 1908.
    George B. Gillespie, for appellant; L. J. Hackney, H. A. Neal and Hamlin & Gillespie, of counsel.
    J. H. Marshall, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellee, as administrator of the estate of Cynthia Dukeman, deceased, recovered a verdict and judgment against appellant railway company for $1,200 as damages for negligently causing the death of his intestate. Upon a former trial of the case there was a verdict and judgment against appellant for $1,650, which judgment was, on appeal to this court, reversed and the cause remanded for another trial. C., C., C. & St. L. Ry. Co. v. Dukeman, 130 Ill. App. 105.

The evidence upon the last trial of the case was, in all substantial particulars, identical with that introduced upon the former trial, and which was considered by this court upon the former appeal, and we refer to the opinion then filed for a statement of the facts involved.

It is first urged that the trial court erred in refusing to give the peremptory instructions offered by appellant at the close of plaintiff’s evidence and at the close of all the evidence in the case. The same contention was urged for our consideration upon the former appeal, and we then held that the trial court did not err in that regard. This holding was conclusive upon the trial court in the last trial of the case and is conclusive upon this court on this appeal.

The former judgment was reversed for error in giving the first and fifth instructions offered by plaintiff. Upon the last trial the said first instruction was changed so as to obviate the criticism made against it upon the former appeal, and the said fifth instruction was not offered by plaintiff.

It is now insisted that the first instruction, as last given, is erroneous for the further reason that it does not require the plaintiff to prove that the alleged running of the train in excess of the limit fixed by the speed ordinance, was the proximate cause of the death of his intestate. The instruction is subject to the criticism made against it in this particular, but as it did not assume to direct a verdict in express terms, and as other instructions given at the instance of both parties fully and repeatedly covered the question, we do not think the giving of the instruction in that form should operate to reverse the judgment.

The substance of the sixth instruction offered by appellant and refused by the court, was sufficiently embodied in the first instruction given at the instance of appellant, and it was not error, therefore, to refuse the same.

It is finally urged that the court erred in refusing to instruct the jury that, in any event, plaintiff could only recover nominal damages. This question was fully presented to this court by counsel for appellant upon the former appeal, and we then held that the instructions offered by appellant limiting the amount of damages recoverable, under the facts disclosed by the evidence in the record, to a nominal sum, were properly refused. For the reasons stated in the former opinion we are content with the conclusion then reached.

There is no error in the record prejudicial to appellant and the judgment will be affirmed.

Affirmed.