text:
    Harry Bricker, Appellee, v. Frank Dahmus, Appellant.
    1. Automobiles and garages, § 3

       — what evidence is inadmissible to show special agency in testing car at time of injury to third person. In an action to recover for personal injuries, sustained as the result of being struck by defendant’s automobile while it was being operated by a third person who had repaired the brakes, evidence that such third person on various occasions, ranging from one to two years prior to the injury, had been seen in company with defendant driving the latter’s car is not admissible to show a special agency for driving the car for the purpose of testing the brakes at the particular occasion of the injury.
    2. Automobiles and garages, § 3* — when special agency in testing car after maMng repairs not shown. Evidence held insufficient to establish a special agency of one engaged to repair brake bands on defendant’s automobile, which injured plaintiff, to test out the car at the time of the injury and after the brakes had been repaired by him, or to show that such person was in defendant’s employ at the time of the accident.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Ghxham, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Keefe, Hadley & Baxter, for appellant; E. L. Maher, of counsel.
    Harold J. Bandy, for appellee; J. M. Bandy, of counsel.

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

   Mr. Justice McBride

delivered the opinion of the court.

The appellee recovered a judgment against appellant for $600, which it is sought by this appeal to reverse.

It appears from the record in this case that on the 25th day of September, 1914, appellant’s automobile was being driven by one William Hommert, Jr., upon the streets of Granite City, and while the appellee was crossing the street the automobile in question struck him and injured him.

The declaration filed consisted of four counts, charging that the said Hommert, Jr., negligently and recklessly operated the automobile and without warning, and that it was operated at a high rate of speed, in excess of 20 miles per hour, and without giving any warning of its approach. To this declaration the defendant filed the plea of general issue, and also a special plea denying that William Hommert, Jr., was the agent of appellant as alleged in said declaration.

The principal contest in this case arises upon the plea denying the agency of Hommert. .The only proper evidence contained in this record tending to establish agency, as wle view it, is the admission testified to by appellee that appellant made to bim upon the night of the injury and while he was lying in his bed and suffering from the injuries received. Appellee claims that upon that night, at about half-past 9 o ’clock, the appellant visited him and in the conversation appellant asked him how he felt and appellee replied, “ ‘I guess it is about all off with me.’ ‘Well,’ he said, ‘The brakes on that car wasn’t working’ and ‘I gave Mr. Hommert — I had Mr. Hommert to fix the brakes and take the car out and give it a thorough test.’ ” It is not sought or claimed by appellee that Hommert was in the general employ of the appellant or that he was in any manner a general agent, but his claim is that upon this particular occasion he had him to fix the brake bands upon his automobile and to give them a test, which, if it established anything, tends to prove that Hommert was the special agent of the appellant at the time of the driving of the automobile in question. There was evidence offered which tended to prove the negligence of Hommert in the operation of the automobile and the appellant did not seek in any manner to contradict this testimony. The case was tried, upon the part of appellant, upon the theory that Hommert was not his agent and operating the car under his direction or by his consent at the time of the injury.

During the progress of the trial the court permitted appellee to prove by Harry Champion that about six months or one year previous to this he at one time saw Hommert driving appellant’s car with appellant and his family in the car; and by William Lyle that some time within a year last past Hommert drove the car into his shop for oil and that the appellant was in company with him; and by L. C. Kaltenberg that some time previous to September 25th he saw Hommert driving the car in company with appellant, to all of which questions and answers the appellant objected. The objection was overruled and the witnesses permitted to state that on these different occasions, ranging from one month to two years prior to the injury, they had seen Hommert in company with appellant driving the car of appellant.

It was not sought by the appellee to prove that Hommert was the general agent of appellant but only that he was the special agent and authorized by appellant to drive this car for the purpose of testing the brakes upon this particular occasion, and we are unable to see how the fact that he may have driven the car in company with appellant a few times long prior to this occasion would tend to establish the special agency contended for; even if Hommert had been employed by appellant, either especially or in a general way long prior to this when it was not claimed that he was working for him in a regular manner at this time, that such employment would not have any tendency to show whether or not he at this time employed him to repair the brake bands and test them out. We think the court erred in admitting this testimony. Counsel for appellee say that granting the testimony was improper, the amount of the verdict was so small that it did not prejudice the jury or in any manner harm the defendant. We do not think the admissibility of this testimony would have so much bearing upon the question of the amount of damages as it would upon the liability for any damages.

It further appears from this testimony that the appellant denied that he made the statement to appellee that was claimed to have been made; denies that he made any statement to him at all about it, and, so far as this record discloses, these men are of equal credibility and the burden was upon the appellee to prove that Hommert was the agent of appellant at this time. The evidence further shows that appellant secured the services of Hommert to fix the brake bands upon his machine and that after they were fixed that Hommert came up to appellant’s store and after reporting that they were in good condition appellant told Hornmert to put the machine in his shed, a few feet away and located upon the lot where appellant was transacting business. It further appears from the testimony of Charles Doyle, who was present at the time and heard appellant tell Hommert to drive the car back into his shed near by. Hommert himself testifies that appellant did not tell him to test out the machine after the fixing of the brake bands, and further says it could not have been tested out by driving the machine; and further says that appellant told him after it was repaired to put it in his shed but Hommert instead of putting the machine in his shed, as he was directed by appellant to do, took a friend in the car with him and went driving around the city and it was while he was driving around the city that he injured the appellee. It further appears from the testimony of Hommert that the appellant had no knowledge or notice of any kind of Hommert driving the car around the city in the manner he did. It appears to us that the appellee not only failed to prove the agency by a preponderance of the evidence, as the law requires, but that appellant by a great preponderance of the evidence proved that Hommert was not at the time acting as the agent or in any way employed or under the direction of the appellant.

Objections are also made to some of the instructions given by appellee, but they are of that character that can be easily corrected upon another trial, as appellee concedes that they are not strictly accurate but contends the error was not of a character to cause a reversal.

We are of the opinion that the verdict of the jury and judgment in this case are manifestly against the weight of the evidence, and that the jury may have been prejudiced by the admissibility of the testimony above criticized.

The judgment of the lower court is reversed and the pause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    Town of Grand Prairie, Appellee, v. C. F. Schneider, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Roads and bridges, § 16

      - — what is not notice to landowner that trail is claimed by public as highway. There is no notice to a landowner that an old trail over timbered and unoccupied land was claimed by the public as a highway because-of the fact that houses were built along the trail and because the trail was worked where the houses which were built had been built in the timber at an early day, and the nearest point of obstruction to the place where repairs were made thereon was one mile away near a schoolhouse.
    2. Roads and bridges, § 16* — when granting of petition for laying out new roads is not notice that old trail is claimed to be high

      way. The granting of a petition for the laying out of new roads upon section and half section lines is not notice that the public is claiming an old trail running diagonally through the section as a highway, where no steps were taken to vacate it.

      Appeal from the County Court of Jefferson county; the Hon. Robert E. Hickman, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed with finding of facts.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by Town of Grand Prairie, plaintiff, against C. F. Schneider, defendant, to recover a penalty for obstruction of a highway. From a judgment for plaintiff for $5 and costs, defendant appeals.
    For the decision on a former appeal, see 202 Ill. App. 562.
    Charles F. Dew, for appellant.
    W. G. Murphey and Curtis Williams, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

3. Roads and bridges, § 21 — what is not record evidence of prescriptive right to trail as highway. The making of a survey of a trail, claimed to be a highway, under direction of highway commissioners is not record evidence of a prescriptive right.

4. Roads and bridges, § 30* — when survey or setting of stakes is not evidence of dedication of highway. A survey or setting of stakes along a trail, claimed to be a highway, by a surveyor under direction of highway commissioners is not evidence of a dedication of the highway when the owner of the land had no notice of and was not present at such survey.

5. Roads and bridges, §• 11* — what essential to constitute highway by prescription. To constitute a highway by prescription, the use must be adverse, uninterrupted, exclusive, continuous and under a claim of right.

6. Roads and bridges, § 12* — when use of land as highway is not adverse. Where the use of land for a highway is merely permissive by the owner, it is not adverse and forms no basis upon which a right of way by prescription can rest.

7. Roads and bridges, § 21* — when use of land for highway presumed to be by permission. The use of vacant, uninclosed and unoccupied land for a highway will be presumed to be by permission and not adverse.

8. Easements, § 26* — when adverse right to not created. An adverse right to an easement cannot grow out of a mere permissive enjoyment for any length of time.

9. Roads and bridges, § 20* — what is essential to establish public highway by prescription over uninclosed lands. In order to establish a public highway by prescription over uninclosed lands, there must be something more than mere travel by the public. It must appear that the user is under a claim of right in the public and not by mere acquiescence on the part of the owner. Express notice is not necessary, but there must be such conduct on the part of the public authorities as to reasonably inform the owner that the highway is used under a claim of right.

10. Roads and bridges, § 23* — when establishment of public highway by prescription over unoccupied land not shown. Evidence held insufficient to establish a public highway by prescription over timbered and unoccupied lands where the highway consisted of a tortuous, winding trail and there was very little work done on it.


author: Mb. Justice McBride

text:
    H. C. Chaffin, Appellee, v. C. R. Nichols, Alf H. Brown and Globe Surety Company of Kansas City, Missouri. Globe Surety Company of Kansas City, Missouri, Appellant.
    1. Appeal and ebbob, § 410

       — when question as to who is proper party plaintiff may not be raised. The question as to the proper party plaintiff in an action may not be raised for the first time on appeal.
    2. Mechanics’ liens, § 173* — who may bring action on contractors bond given to city conditioned upon payment of claims for labor or materials. A bond given to a city by a municipal sewer construction contractor, conditioned on the payment of claims for labor and materials and providing that it shall extend to all persons who may become entitled to liens under the contract and may be sued upon by them the same as if to them in proper person, may be enforced by any person entitled to a lien.
    3. Assignments, § 2* — what is chose in action upon which suit may be brought in name of assignee. A right of action on a bond for payment for labor or materials furnished a contractor constructing a sewer for a city is a chose in action enforceable in an action on the contractor’s bond for the benefit of laborers and materialmen and, upon establishment of the lien, may be enforced by an assignee of the claim under Hurd’s Rev. St. ch. 110, sec. 18 (J. & A. 7 8555), providing that the assignee of any chose in action may sue in his own name.
    4. Mechanics’ liens, § 134* — assignability of claim on bond of city construction contractor. Under section 8 of the Mechanics’ Liens Act (J. & A. If 7146), providing that all liens or claims for liens which may arise or accrue under the terms of the act are assignable, a claim on the bond of a city construction contractor for labor performed or materials furnished such contractor is assignable.
    5. Mechanics’ liens, § 134* — when assignee of claims may join all in one claim in suit on city construction contractor’s bond. One who procures by assignment claims for labor performed and materials furnished to a contractor for a city sewer construction contract may join such accounts into one claim and maintain a single action on the contractor’s bond given to the city for the benefit of those performing labor or furnishing material to the contractor.

      6. Interest, § 8

       — when due hills issued hy construction contractor hear from, date of issuance. Due bills issued by a contractor to those performing labor and furnishing material to a contractor constructing a sewer for a city, reciting that there is due4 the respective parties the amount of money stated in the respective due bills, bear interest at the rate of 5 per cent, after issuance.
    Appeal from the Circuit Court of Clay county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Rose & McCollum, for appellant.
    J. L. Boyles and J. H. Smith, for appellee; B. H. Canby, of counsel.

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

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

   Mb. Justice McBride

delivered the opinion of the court.

It appears from the record in this case that on about the 23rd day of August, 1912, the defendants Nichols & Brown entered into an agreement with the City of Flora, Illinois, for the construction and building of a system of sanitary sewers, with an outlet for the same. At the time of the entering into said contract the defendants Nichols & Brown were required to give bond for the performance of the same, for the protection of the city and of those furnishing labor and materials in the construction of said sewer. The t defendants Nichols & Brown, with the Globe Surety Company of Kansas City, Missouri, entered into a bond in which bond the obligees are named as “Are held and firmly bound unto the City of Flora, in Clay county, Illinois, a municipal corporation under the laws of the State of Illinois, and to all persons who may become entitled to liens under the contract hereinafter mentioned.” This bond was conditioned for the performance of the covenants in said agreement entered into for the construction of said sewer, and also that the said Nichols & Brown shall duly and promptly pay and discharge all indebtedness that may be incurred by them in carrying out the said contract, and shall complete the same free from all liens as in said contract provided. And it was further stipulated in said bond, following the conditions aforesaid: “It is expressly understood, stipulated and agreed that the conditions of this bond shall extend to and be held as also made for the use and benefit of all persons who may become entitled to liens under said contract, under the provisions of the laws of the State of Illinois, and that this bond may be sued upon the same as if to them in proper person.” After the execution of said agreement and bond the defendants Nichols & Brown entered upon the performance of their contract, purchased material, employed labor and in time completed the contract and the sewer was accepted by the City of Flora.

It further appears from the record that Nichols & Brown had some difficulty in meeting their obligations while engaged in the construction of said sewer; and at times were unable to meet the payments for labor and materials. That in order to meet the demands Nichols & Brown, by their foreman, issued to persons performing labor and furnishing material due bills, or as they term them “time slips.” The appellant purchased from those furnishing labor and material a great many of these due bills, being about four hundred sixty in number, and each of said due bills was duly assigned by the person to whom it was issued to the appellant, and that by this means he purchased due bills to the amount of ■$-. The appellee gave notice, in writing, to the city officials, in proper manner, of the said claims that were due and owing for work and material furnished upon said sewer, which notice was duly filed with the clerk of the said City of Flora. The said claims were duly acknowledged by Nichols & Brown. Thereafter the City of Flora had a settlement with Nichols & Brown, in which settlement it was found that there was due and owing to Nichols & Brown, upon said contract, a balance of $4,699.37. Other claims besides those of appellee were filed and a payment was made by the City of Flora of 44 per cent out of the balance due to Nichols & Brown. This suit was instituted by appellee upon the bond above described to recover the balance due him upon the liens established as above stated. Judgment was rendered in favor of the appellee and against Nichols & Brown and the appellant for debt in the amount of $17,000 and costs of suit, to be discharged upon the payment of $5,722.11 damages and costs. This appeal is prosecuted by the Globe Surety Company only.

The declaration in this case was in the usual form of declarations upon bonds of this character and the breach assigned was that defendants Nichols & Brown purchased of divers persons, naming them, goods, wares and merchandise, and that others, naming them, performed labor in and about the construction of the sewer above described. That said sewer was completed and accepted by said city and that there was due the said persons furnishing such labor and materials for said sewer the several amounts specified, which the said Nichols & Brown promised to pay to the said parties respectively but failed so to do; that the several persons to whom the respective amounts were due, for a valuable consideration, duly assigned their said claims to the plaintiff and that the plaintiff thereafter gave notice, in writing, to the city officials of his claims aforesaid, and of the failure of Nichols & Brown to pay the same. The defendants entered a motion and obtained a rule for a bill of particulars and then filed the following pleas:

The first plea states that said claims in the declaration mentioned were paid by plaintiff out of money and funds in his possession that belonged to defendants Nichols & Brown, and were advanced by them to the plaintiff for such purpose.

The second plea denies that the plaintiff is the owner of the several claims, or any of them, set forth in the declaration, and that said claims were purchased by plaintiff out of money in his possession belonging to defendants Nichols & Brown while he was acting as their agent.

The third plea was one of set-off, alleging an indebtedness owing to Nichols & Brown by the plaintiff to a greater amount than that claimed by the plaintiff; and set forth that this amount was obtained by plaintiff in notes which were converted to plaintiff’s use and in cash received by him.

The fourth plea denies that the several persons in the declaration mentioned assigned to the plaintiff their right to the said claims, as alleged in the declaration.

Plaintiff traversed the first, second and fourth pleas and filed a replication to the fourth plea, upon which issue was joined.

It is insisted by counsel for appellant that this action should have been brought in the name of the City of Flora for the use of the appellee, and that appellee had no right of action in his own name. No question of this character was raised by the pleadings in this case, nor was it raised by motion directing a judgment on account of any variance and we do not believe that counsel are in a position to raise this question for the first time in this court. Even if proper pleas had been filed and proper proceedings taken for presenting this question, we are of the opinion that it could not avail the appellant for the reason that these claims were duly assigned by the respective parties to the appellee and a lien established by him in the manner provided by statute, and the bond was made payable to the City of Flora and all persons who may become entitled to liens under the contract mentioned; and it was further provided in said bond that, this bond shall extend to all persons who may become entitled to liens under this contract and may be sued upon by them the same as if to them in proper person. Here is an express provision giving to each and every person entitled to a lien the right to bring an action upon this bond. This was sufficient to establish a contractual relation between persons entitled to liens and the obligors in the bond and there was by reason thereof a privity of parties. This provision is not contrary to any law and is not void on account of public policy, and we can see no reason why it should not be enforced. “A bond should be so construed, if possible, as to give force and meaning to all the words and clauses used in the bond, and so as best to effectuate and carry into operation the reasonable intention of the parties, and such a construction should be given, if this can fairly be done, that will support rather than defeat the bond.” Corpus Juris, vol. 9, page 33.

“Under the principle that the person for whose benefit a contract is made with another may maintain an action on such a contract, a public bond, required by statute of contractors, conditioned for the protection of those who furnish labor or materials in the performance of public works contracted for, can be enforced by any person to whom the principal is indebted for work or material under the contract secured by the bond. It must appear, however, that the party seeking to obtain the benefit of the contract and bond clearly falls within the terms and is included within the provisions of them, in order to be entitled to his action on the bond.” Corpus Juris, vol. 9, page 87; Title Guaranty & Trust Co. v. Crane Co., 219 U. S. 24.

Upon principle we can see no reason why a right of action should not accrue by contract, not contrary to law or public policy, as well as by statute. When all of the terms of this bond are considered, it is clear that it was intended not only to secure the city but every person who furnished materials or performed labor upon this sewer, and that it was intended that each of the parties would have a right of action upon this bond for their claims.

It is insisted by counsel for appellee that even if the action is not maintainable under this contract, that it may be maintained under section 18, ch. 110 (J. & A. ft 855), which provides that the assignee of any chose in action may sue in his own name, but it is argued by counsel for appellant that this is not a chose in action and therefore not within the statute. “The term ‘chose in action’ is of very comprehensive import, and includes the almost infinite variety of contracts, covenants and promises, which confer on one party a right to recover a personal chattel or a sum of money from another by action.” Wait’s Actions & Defenses, vol. 2, page 250.

A chose in action is “a right to receive or recover a debt, or money.” Bouvier Law Dict. 322. “Money due on bond, note or other contract, or damages for breach of covenant” are defined to be chose in action. Kent’s Com. vol. 2, page 437.

If we are right in our former conclusion then as soon as this lien was established the claimant had a right of action upon this bond, and, if so, then it was clearly a chose in action and could be enforced under this statute.

Counsel for appellant further contends that the accounts could not be joined in one claim for a lien and that there could be no assignment of the accounts. He insists that as section 7 of the Liens Act (J. & A. ft 7145) provides when a contractor shall be entitled to a lien upon the real estate and provides the mode of enforcing the lien, that section 8 (J. & A. ft 7146), which follows, and relates to the assignment of claims for lien, applies only to claims or liens against real estate under section 7, upon the principle, as he says, that as section 8 following recites that: “ ‘ Claims for liens’ are assignable, the inference must follow that by the use of the words ‘claims for liens’ was meant ‘claims for lien’ as just defined.” Section 8 is of a much broader effect than that given to it by counsel, as it says, in speaking of claims for liens sought by counsel to be limited, to section 7: “All liens or claims for lien which may arise or accrue under the terms of this act shall be assignable, etc.” He also contends that the provisions of the Liens Act relating to the remedies for the enforcement of liens do not apply to the lien created by section 23 of the Act (J. & A. U 7161) but only to the enforcement of liens against real estate, and refers to the case of National Bank of La Crosse v. Petterson, 200 Ill. 215. It is true that the provisions of other sections of the act relating to the remedy for the enforcement of a lien against real estate do not apply to the lien created under section 23 of the Act, and was not so intended, as section 24 (J. & A. ft 7162) gives the manner of establishing the lien but does not provide for the enforcement of a lien. In this case the appellee is not seeking to enforce the lien but is pursuing an entirely independent remedy; after having established his lien he is then seeking to enforce a contract, and it may be that if the appellee was seeking to enforce his lien that he wuuld have to file a bill in chancery and make all other persons interested parties, but that is not the case here. His purpose is to recover upon his' contract. There is no good reason apparent, and none has been offered, why this statute should provide that one class of liens should be assigned and the other should not. The object of the statute was to enable persons who were furnishing materials and performing labor to obtain their money and preserve the right of lien where the contractor was unable to meet the payments, and there certainly would be as much reason in preserving this right for the benefit of one working upon a public plant as for one engaged in improving a piece of real estate. The statute embraces “All liens or claims for liens” and is broad and comprehensive, and we think that it is within both the letter and the.spirit of the law to construe it so that such assignments may be made.

The question is also made that there can be no joint account. Such a right was recognized by this court in the case of Builders Supply & Coal Co. v. Eggmann, 190 Ill. A.pp. 572. If, under the law, these different claims were assignable to appellee and he had the right to establish his lien, we can see no reason why he should not establish a lien for the whole of the amounts as well as for a portion of them. To require him to bring a separate proceeding for each of the claims would tend to increase useless litigation.

It is also insisted that the appellee is not entitled to these claims because he was acting as the agent of Nichols & Brown. The proof shows that he acted as the agent of Nichols & Brown in receiving and receipting for their bonds as they were issued by the City of Flora from time to time and forwarding them to the parties who purchased the same, and this seems to be the full extent of the agency, according to the testimony. It appears from the evidence that these claims were purchased with appellee’s own money and upon his own account, and assigned to him personally, and were not done as the agent of Nichols & Brown, and the. principles invoked by counsel governing the relation of principal and agent could not apply to the appellee.

It is also insisted that the claim of Blackner & Post Pipe Company had been paid for with Nichols & Brown money and therefore should not have accrued to appellee. The evidence, in our opinion, does not warrant this conclusion. It appears that a letter was written by appellee to Nichols on July 14, 1913, urging upon him to make a note to the Bank of Flora for $1,500, to be used in the paying of the Blackner claim. The note was executed but not returned until some time in August or September, and when it was returned it was placed to the credit of Nichols & Brown in the Flora Bank and checked out by them upon other claims and not used in the payment of the Blackner claim. We do not believe that this claim was paid by Nichols & Brown and then purchased by appellee, or that the claim was twice paid, as contended by counsel.

It is next insisted that the court erred in allowing interest upon the claims, and contends that the interest should not be allowed until the account had been stated. The time slips, or due bills, issued by Nichols & Brown were in the form of due bills and recited that there was due the several parties the amount of money stated in each one of the “due bills” issued to the respective parties. The “due bills,” given in full in the abstract, are of this form and we assume that the others were, as no definite kind, or change, has been pointed out by counsel. These due bills would bear interest after they were issued at 5 per cent., under' the statute.

We are of the opinion that the appellee had the right, after establishing his lien, to institute suit upon this bond and recover the balance due him and that the court did not err in its finding and proceedings herein, and that the claim is just and meritorious, and the judgment of the lower court is affirmed.

Judgment affirmed.


text:
    Peter Hackethal, Appellee, v. East Side Levee & Sanitary District, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sanitary districts, § 17a

       — When instruction on liability for loss of crops due to flooding because of levee embankment is erroneous. In an action by a landowner against a levee and sanitary district to recover damages for injury to crops by overflow, caused by a levee constructed by defendant and by a railroad embankment, an instruction that even if the jury found from the evidence that the railroad embankment combined with defendant’s levee caused the damage to plaintiff’s crops by holding the water upon the lands of plaintiff, still this would not relieve defendant from liability, and as to such damages, if any, they should find for plaintiff, was erroneous where the respective embankments were constructed by the sanitary district and railroad individually at different times, and neither had anything to do with the construction of the other’s embankment.

      Appeal from the Circuit Court of Madison county; the Hon. Louis Bernbeuteb, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Rehearing denied June 22, 1918.
    Statement of the Case.
    Action by Peter Hackethal, plaintiff, against East Side Levee & Sanitary District, defendant, to recover damages for injury to crops by overflow caused by an embankment of a canal constructed by defendant and also by a railroad embankment. From a judgment for plaintiff for $700, defendant appeals.
    See also the cases of Handfelder v. East Side Levee & Sanitary Dist., 194 Ill. App. 262, and Hoehn v. East Side Levee & Sanitary Dist., 203 Ill. App. 48, in which the principal questions involved were determined.
    F. A. Garesche, J. B. Harris and D. H. Mudge, for appellant; Thomas E. Gillespie, of counsel.
    Burton & Burton, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

2. Torts, § 23 — when wrongdoers liable only for amount contributed to damage sustained. If the wrong complained of consists of two independent acts and performed by two independent parties, at different times, each party will be liable only for the amount it contributed to the damage sustained.


text:
    Stanley Milauskis, Appellee, v. Terminal Railroad Association of St. Louis, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vahdeventeb, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by Stanley Milauskis, plaintiff, against Terminal Railroad Association of St. Louis, defendant, to recover damages for personal injuries due to being struck by one of defendant’s trains while walking along one of its tracks. From a judgment for plaintiff for $2,000, defendant appeals.
    T. M. Pierce and Kramer, Kramer & Campbell, for appellant.
    Paul Irose and Keefe, Hadley & Baxter, for appellee.

      Abstract of the Decision.
    1. Railboads, § 517

       — what duty owed to trespasser. A railroad company owes no greater duty to a trespasser than to refrain from wilfully or wantonly injuring him.
    2. Negligence, § 23* — when person may lawfully enter on premises of another. One need not he specifically engaged in the work of the owner of premises before he can lawfully enter on the premises, and it is sufficient if he is engaged in work the prosecution of which implies that he should enter upon such premises, or if there is an expressed invitation to enter upon the premises.
    3. Railboads, § 508* — what constitutes empress invitation to employee of third person to use way along track. There is an express invitation for the entry upon the premises of a railroad company by the employee of a car line company so as not to constitute such employee a trespasser at the time he is struck by one of the railroad company’s cars, while on his way on a beaten path along the railroad track from the car line company’s plant to an ice house, from which he had gone to the office to cash a check, where the work of icing cars to be carried by the railroad company was necessary and the railroad company had designated to the employer that the beaten path should be used as the route between the car line company’s office and the ice house.
    4. Negligence, § 250* — when finding as to due care is conclusive. Where there is any evidence fairly tending to show due care, or circumstances from which such may be inferred, the finding of a jury on such question is conclusive.
    5. Railboads, § 589* — when negligence in striking pedestrian walking along track and contributory negligence of pedestrian are questions for jury. In an action by the employee of a car line company against a railroad company to recover damages for personal injuries, sustained as the result of being struck by one of the cars of defendant’s train while plaintiff was walking on a beaten path for the use of himself and other employees along the railroad track, where it appeared that the car was being run backwards without any brakeman or other person upon it to control it and without giving any warning by which plaintiff or any of his associates accompanying him could learn of its approach, it was a question for the jury whether defendant was negligent and whether plaintiff was guilty of contributory negligence.

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

   Mr. Justice McBride

delivered the opinion of the court.

6. Limitation of actions, § 72* — what does not constitute statement of new cause of action against railroad company for negligent injuries. The effect of the amendment, three years after the happening of the injury to an employee of a car line company by a car of a railroad company while walking along defendant’s track, of a declaration for negligence charging that “Armour & Company” owned and operated the ice house at which plaintiff was working and that he was an employee of such company, that the right to use the path was given to employees of Armour & Company and that his right arm was amputated, so as to state that the ice house was owned by the “Armour Car Lines,” that plaintiff was an employee of such latter company, that the right to use the path was given to the employees of such latter company, and that plaintiff’s left arm and the finger of his right arm were amputated, was simply to avoid a variance and it did not constitute the statement of a new cause of action, it being unquestioned that plaintiff was on defendant’s premises by invitation, so as render the questions of the ownership of the ice house and of the name of the employer immaterial.


text:
    The People of the State of Illinois, Defendant in Error, v. Cora Goff, Plaintiff in Error.
    1. Criminal law, § 95

       — what is effect on judgment of trial of case without plea. The trial of a criminal case for assault with a deadly weapon without the entry of a plea by the defendant is a nullity.
    2. Criminal law, § 95* — when entry of plea essential. Under J. & A. If 4120’, relating to the entry of a plea of not guilty upon arraignment of accused in a criminal case, and the formation of an issue in such manner, a plea is essential in the case of a misdemeanor as well as in the case of a felony.
    3. Criminal law — what is not waiver of plea. Proceeding with the trial of a criminal prosecution for assault with a deadly weapon without the entry of a plea is not a waiver of such plea.
    Error to the Circuit Court of Clay county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.

      Jambs H. Smith and J. L. Boyles, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice McBride

delivered the opinion of the court.

The plaintiff in error was indicted by the Grand Jury of Clay county, Illinois, for an assault with a deadly weapon upon the person of Frances B. McKinney with intent to commit a bodily injury and was convicted in the Circuit Court and sentenced to pay a fine of $50 and costs, to reverse which judgment this writ of error is prosecuted.

One of the errors assigned by the plaintiff in error, hereinafter called plaintiff, is that the court erred in rendering judgment upon the verdict because no plea was ever made by the plaintiff or entered in the record. An examination of this record discloses that the plaintiff was never arraigned and never entered any plea in the case and that the court proceeded to trial without any plea having been entered. It is provided by statute that: “Upon the arraignment of a prisoner, it shall be sufficient, without complying with any other form, to declare orally, by himself or his counsel, that he is not guilty; which plea shall be immediately entered upon the minutes of the court by the clerk, and the mention of the arraignment and such plea shall constitute the issue between the People of the State and the prisoner.” [J. & A. ft 4120.] In order to constitute an issue to be tried it is necessary that a plea be entered, and if no plea is entered and a trial is had without such issue having been made it is, under the several rulings of our court, a nullity. A trial was had when in fact no plea of any kind was ever filed in the cause, so far as this record discloses. On the authority of Johnson v. People, 22 Ill. 314, this was error. It was there held that without an issue there could be nothing to try, and the party convicted could not be properly sentenced. This error can be corrected and the accused may be arraigned and required to plead before he is again placed on trial. Yundt v. People, 65 Ill. 372. The same doctrine is announced in the case of Hoskins v. People, 84 Ill. 87; also in the case of Parkinson v. People, 135 Ill. 401. The cases above referred to were felonies, but the statute does not limit the requirement of a plea to a felony but in general terms applies to any prisoner at the bar. In the case of Persefield v. People, 100 Ill. App. 488, it is held that this doctrine applies to misdemeanors as well as felonies, and the cases above referred to are cited by the Appellate Court in its holding that the plea of not guilty is essential in the trial of a misdemeanor and that a failure to enter such plea is reversible error. The Appellate Court of the Fourth District of Illinois, by Justice Duncan, in the case of People v. Ezell, 155 Ill. App. 298, in an action against the defendant for selling liquors .in anti-saloon territory, held that it was essential to a proper trial of a case' to enter a plea before proceeding with the trial, and in that case the court says: “There is one error in this case that particularly necessitates a reversal of the judgment and sentence of the lower court. The record does not show that the defendant was arraigned, or that a plea of any ldnd was made by the defendant or entered of record.. In prosecutions for misdemeanors the practice is to allow the plea of not guilty to be entered without arraignment. But without this plea being entered there is nothing to be tried. The plea was not waived by the defendant, and it must be held as error. For want of such a plea the judgment should have been arrested. Johnson v. People, 22 Ill. 314; Miller v. People, 47 Ill. App. 472.” In this case, so far as the record discloses, there was no arraignment of the plaintiff and no plea entered by her, and under the holdings of both the Supreme and the Appellate Courts the trial was a nullity and the court erred in entering judgment without such a plea having been entered. It was not the business or duty of the plaintiff to see to the entering of the plea, and the going to trial without the plea being entered was not a waiver of such a plea, and the rendering of judgment upon the verdict entered without such a plea was erroneous.

Other errors are assigned by the plaintiff but we do not deem it necessary to give them any consideration as this error necessitates a reversal of the case.

We are of the opinion that the court erred in proceeding to trial without having required a plea to be entered, and in rendering judgment without such plea having been entered, and the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


text:
    M. H. Boals Planing Mill Company, Appellant, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellee.
    1. Instructions, § 81

       — when singling out facts are misleading. Instructions singling out facts, and each advising the jury that if the particular fact does not exist they would not he warranted in finding the defendant guilty, are misleading.
    2. Evidence, § 94* — when question put to witness is immaterial and improper as calculated to prejudice the jury. In the trial of an action against a railroad company for loss of property by fire due to sparks from a passing engine, it is not proper for counsel for plaintiff to inquire if the suit is not being carried on by an insurance company, since such question is immaterial and is calculated to prejudice the jury.
    Boggs, J., dissenting.

      ' Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Rehearing denied June 22, 1918.
    J. V. E. Marsh, for appellant; Kelly & Hewitt, of counsel.
    D. E. Keefe and S. W. Baxter, for appellee; L. J. Hackney and Frank L. Littleton, of counsel.

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

   Mr. Justice McBride

delivered the opinion of the court.

It appears from the record in this case that the appellant is the owner of a lumber yard and planing mill situated in the City of Alton, Illinois, and located south of Second street and east of Oak street and north of appellee’s railroad. The south side of the planing mill was about 124 feet north of appellee’s railroad. The planing mill was a three-story brick building and located on the northerly end of the lots, fronting on Second street. On the south side of the building there were, on the first floor, two large double doors, the sills or lower part of which were elevated some distance above the level of the ground, and immediately outside of these doors was a pile of waste lumber consisting of sawdust, scraps and small pieces of wood, which had been thrown out of doors from the mill. There were several sheds and lumber piles connected with this lumberyard and used in the transaction of the business.

It further appears from the evidence that on the 16th day of February, 1915, at the hour of about 4:30 o’clock in the afternoon, the planing mill with its contents were mostly destroyed by fire which resulted in a loss to the plaintiff, as it claims, of $30,000. At the time of the fire the only persons upon the premises were W. J. Boals, the secretary, Edwin Lutz, the foreman, and a teamster- who was engaged in the hauling of lumber from the yard. At about the time the train hereinafter referred to passed by the lumberyard, Boals was engaged in checking up a load of lumber to be delivered by the teamster, and immediately thereafter he went to the office, which was a two-story brick building adjacent to but not connected with the main building, and was near the northeast comer of the mill. The machinery was operated by electricity and the current was cut off from the outside. On the day in question the mill was idle and there was no fire upon the premises, except in the office and the office was not burned. It further appears that about fifteen minutes before the fire was discovered a passenger train passed along appellee’s railroad, and, as testified to by appellant’s witnesses, was emitting considerable quantities of live cinders and sparks. Some of the witnesses testified that these sparks and cinders fell upon the building in considerable-quantities, and also fell upon the horses and as claimed burned them, and also upon two men who claim to have been slightly burned, and that the horses and men were at a greater distance from the engine than the pile of kindling located at the south side, in which appellee claims that the fire originated, and near the west end of the planing mill. The day was clear, the wind blowing a strong gale from the south or southwest, and by reason of the character of the material in the building the plant burned rapidly and was soon consumed. It further appears from the evidence of the appellee that the men connected with the operation of the train did not observe that any cinders or sparks were being emitted from the engine, and while they say they did not observe it they claim to have no personal recollection of any sparks being emitted or not from the engine on that particular trip. It also appears from the testimony of appellee that the engine was equipped with a spark arrester of the best and most approved kind to prevent the escape of fire and that it was in good repair and that the engine was properly and skilfully handled by a competent engineer and fireman. Upon cross-examination of witnesses for appellee who testified to the character of the spark arrester, they say that if the spark arrester permitted sparks and cinders to be emitted from the engine, as testified to by witnesses for appellant, that said spark arrester must have been out of repair and that it would be impossible for such sparks to escape therefrom. At the conclusion of the trial the jury returned a verdict in favor of the defendant and this appeal is prosecuted by the plaintiff.

The declaration in this case, after describing the mill, location of the lumberyard and other preliminaries, charges that while a certain locomotive engine of the defendant and under its control was then and there passing along the said railroad, along the plaintiff’s said close, divers sparks and brands of fire then and there escaped and were thrown from the said locomotive engine by and through the mere carelessness and negligence of the defendant, and set fire to certain cuttings of lumber then in said close and located near the south door of the said brick building or planing mill and thereby the fire spread and was communicated to the said building and the contents thereof, whereby the same were destroyed.

It appears from the evidence, when considered as a whole, that it is somewhat conflicting.

It is contended by appellant that because of improper instructions having been given on behalf of the appellee that the jury were misled as to what appellant would be required to prove in showing that the appellee’s engine set fire to the building. The evidence as to the origin of the fire was circumstantial, no one appears to have seen how the fire originated. It is contended by counsel for appellant that the circumstanpes indicate that the sparks of fire emitted from appellee’s engine alighted upon this pile of kindling, sawdust and cuttings of lumber and set fire thereto, and that by reason of the blowing of the wind from a southerly direction the fire was driven under the doors, near the southwest corner of the mill building, and communicated to and destroyed the contents of the building.

The principal contention of appellant is that the court erred in giving appellee’s first, fifth and seventh instructions. The first instruction is as follows: “The court instructs'the jury that the fact that defendant’s locomotive was operated on defendant’s track which was close to plaintiff’s premises, and that a short time thereafter a certain building was discovered to be on fire, would not warrant the jury in finding the defendant guilty; the plaintiff has the burden of establishing before the jury that the fire which caused the damage was set out by defendant’s locomotive, and unless the jury believe this from a preponderance of the evidence you should by your verdict find the defendant not guilty.”

The fifth instruction is: “The court instructs the jury that if you believe from the evidence in this case that fire was discovered about the plaintiff’s premises on the 16th of February, 1915, and that the locomotive of the defendant had passed over the defendant’s tracks, which were adjacent to the plaintiff’s premises, a short time before, that of itself creates no presumption that the locomotive so passing threw out any sparks or communicated any fire to the plaintiff’s premises. ’ ’

The seventh instruction is as follows: “The court instructs the jury that although you may believe from the evidence that a certain locomotive under the management or control of the defendant on February 16, 1915, did throw out from the smokestack of such locomotive cinders or embers, which were warm, this alone does not entitle the plaintiff to recover damages against the defendant in this case. The plaintiff must go further and prove that fire was communicated to the plaintiff’s premises by a locomotive belonging to or under the control of the defendant; and unless the jury believe from a preponderance of the evidence that fire was' so communicated, you should by your verdict find the defendant not guilty.”

It is contended by counsel for appellant that by each of these instructions a particular fact was singled out and the jury advised that even if such fact did exist that the jury would not be warranted in finding the defendant guilty. It is true that each of these instructions do advise the jury that although the particular fact referred to therein does exist, this would not warrant the jury in finding the defendant guilty. It appears from the undisputed facts in this -ease that the day on which the fire occurred was clear and bright. That there was no fire about the building or lumberyard, except in the office, which was an independent building and not destroyed; that the fire was discovered about fifteen or twenty minutes after the appellee’s train passed by. It also appears from the testimony of appellant’s witnesses that as the engine passed by the premises in question it emitted smoke, sparks and cinders and that they were blown to a considerable distance, towards and on the appellee’s premises. It seems to us that this evidence should have been submitted to the jury without the limitations imposed by these instructions. It is said by the Supreme Court of this State that where the weather was dry and the wind blowing from a favorable direction and the engine discharged sparks and burning cinders, which were blown towards the destroyed building, and the fire was first seem on the side of the building next to the railroad, that such evidence fairly tended to prove that fire was communicated to the building from the engine, and was sufficient to make out a prima facie case. Illinois Cent. R. Co. v. Bailey, 222 Ill. 484; Chi cago & A. R. Co. v. Glenny, 175 Ill. 238. And again, where it appeared that there was- no fire in the orchard when the owner left it about noon to go to his dinner and returning in less than one hour afterwards saw it burning, three trains had passed in the meantime and the court under such circumstances says: “A prima facie case of negligence, therefore, was made out by appellee, and the court properly refused, at the conclusion of the testimony for him, to instruct the jury to return a verdict of not guilty.” Toledo, St. L. & W. R. Co. v. Needham, 105 Ill. App. 25. Where it appeared that there was no fire in the dwelling house of the owner and that a freight train with engine and twenty-five to forty cars passed by the owner’s premises, and that they heard a heavy exhaust and saw smoke coming from the stack, and that other witnesses about the same time saw the train, that was not running very fast, pass by and shortly thereafter saw plaintiff’s building on fire, it was held that these facts were sufficient for the jury to find that the building was destroyed by fire from the engine. Boehning v. Elgin, J. & E. Ry. Co., 193 Ill. App. 146.

The first instruction complained of singles out the fact that if the defendant’s locomotive was operated on defendant’s track, which was close to plaintiff’s premises, and that a short time thereafter a certain building was discovered to be on fire; and the fifth instruction singles out the fact that even if a fire was discovered about the plaintiff’s premises on the 16th of February, 1915, and that the locomotive of the defendant had passed over defendant’s tracks, which were adjacent to plaintiff’s premises, a short time before; and the seventh instruction states the fact that although the jury may believe that a certain locomotive under the management or control of the defendant on February 16, 1915, did throw out from the smokestack of such locomotive cinders or embers which were warm, this alone does not entitle plaintiff to recover. These instructions were, in our opinion, very misleading. When considered under the conditions that existed here, of the day being bright, the wind favorable for carrying the sparks from the engine to the premises of appellee, the building having been destroyed shortly after the train passed, and no fire on the premises except in the office, which was not burned, and no other persons than those above mentioned being on the premises, then for the court to advise the jury that the different facts as above set forth would not warrant the jury in finding the defendant guilty are certainly misleading and erroneous. Such instructions have been repeatedly condemned by our Supreme Court. “Where an instruction selects one item of evidence, or one fact disclosed by the evidence, and states that a certain conclusion does not follow as- a matter of law from that fact, it is calculated to mislead and confuse the jury. The ordinary juror is not able to distinguish between conclusions which follow as matter of law and conclusions which follow as matter of fact.” Drainage Com’rs of Dist. 3 v. Illinois Cent. R. Co., 158 Ill. 358. The judgment of the court was reversed in this case on account of giving such erroneous instructions. The court again,, in commenting upon this class of instructions, says: “This class of instructions, which selects one item of evidence or one fact disclosed by the evidence and states that a certain conclusion does not follow, as a matter of law, from that fact, is calculated to mislead and confuse a jury.” West Chicago St. R. Co. v. Petters, 196 Ill. 300. In a later opinion, the Supreme Court says, in commenting upon instructions of this character: “The objection is that each isolates a fact and tells the jury that such fact is not sufficient to overthrow the will. If this course was pursued with reference to each fact which contestants established, the proponents could have the jury instructed, by a separate instruction, that each one of many circumstances relied upon by contestants was not sufficient to warrant the jury in returning a verdict finding that the paper offered was not the will of the testatrix. This course would probably induce the jury to find for the proponents, when a consideration of all the circumstances together free from the influence of such instructions might lead the jury to the conclusion that the evidence preponderated in favor of the contestants.” Weston v. Teufel, 213 Ill. 301.

While it may be true that each of the facts selected and stated by appellee in its instructions might not warrant a recovery, yet, when they are all considered together under the conditions that existed, we certainly think that they should not one by one have been taken from the consideration of the jury but it should have been allowed to consider them all together and then determine from all the facts including these the cause of the fire.

Other objections have been urged but we do not deem it necessary to give them a critical examination but deem it sufficient to say that under the repeated decisions of our Supreme Court it was not proper for counsel for appellant to inquire if this suit was not carried on by an insurance company as that was not material. The objection to this question, however, was sustained but such questions and insinuations are calculated to prejudice the jury.

The question as to the copy of the list of property destroyed which appellant inquired about was certainly proper as it had a right to know who made that copy, and it developed later on in the examination of the witness that the firm that made the copy had been employed by the appellant to adjust its loss and that the firm was engaged at work for it.

For the reasons above given we are of the opinion that the court erred in giving the instructions heretofore referred to for the appellee, and for that reason the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Boggs, dissenting.


text:
    W. A. Albright and N. T. Lawrence, trading as Albright & Lawrence, Appellees, v. Illinois Central Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Union county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by W. A. Albright and N. T. Lawrence, trading as Albright & Lawrence, plaintiffs, against Illinois Central Railroad Company, defendant, to recover damages for injuries to horses and mules shipped on one of defendant’s trains. From a judgment for plaintiffs for $97.50, defendant appeals.
    Crawford & Crawford, W. W. Barr and C. E. Feirich, for appellant; Blewett Lee and W. S. Horton, of counsel.
    James Lingle, for appellees.

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

   Mr. Justice McBride

delivered the opinion of the court.

Abstract of the Decision.

1. Cabbiers, § 248 — when shown that horses and mules loaded in good condition were not in good condition at destination. In an action against a railroad company for damages for injury during transit to horses and mules, evidence held sufficient to show that the horses and mules were properly loaded and in good condition when loaded and that they were not in good condition at the point of destination.

2. Carbiebs, § 227* — what is sufficient to show liability of carrier for injury to horses and mules. Proof that horses and mules were properly loaded and in good condition and were not in good condition when they reached their destination is sufficient to create a liability against the carrier unless it is made to appear from the evidence that the injury was attributable to the act of God, the public enemy or the vices of the animals themselves.

3. Carbiebs, § 237* — when not negligence to ship mule that had been in bad condition. It is not negligence for a shipper of horses and mules to ship a mule which had six months previous to the time of shipment been afflicted with pneumonia and" with pones under the belly, where it had fully recovered and was in good condition at the time of shipment.


text:
    Sallie Odom et al., Appellees, v. Joe Norwodowski et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Williamson county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Two actions by Sallie Odom and Dennis Odom and the other children of Sallie Odom, plaintiffs, against Joe Norwodowski, 'Antone Statkewice, Barney Tonazzi, Louis Maroni, Joe Baretti, Anton Pbrancabbagge, Peter Rankle, James Moudy, W. H. Williams and Albert Barney, defendants, for damages for loss of support by the husband and father, alleged to be due to the sale to him of intoxicating liquors by defendants, and consequent insanity. The two cases were tried together under the same evidence and separate verdicts and judgments rendered for $500 in favor of the wife and $700 in favor of the children, from which judgments defendants appeal.
    Abstract of the Decision.
    1. Intoxicating liquors, § 227

       — when shown that sale of liquor was made by defendant saloon keepers to father and husband of respective plaintiffs. In an action against several saloon keepers to recover damages for loss of support due to the sale of intoxicating liquors by defendants to the husband and father of the respective plaintiffs, and consequent insanity, evidence held sufficient to sustain a finding that the husband and father purchased liquors at the respective places of defendants.
    2. Intoxicating liquors, § 249* — when instruction on effect of husband and father of respective plaintiffs getting intoxicated prior to time charged in declaration is not erroneous. In an action against several saloon keepers to recover damages for loss of support due to the sale of intoxicating liquors by defendants to the husband and father of the respective plaintiffs, and consequent insanity, an instruction, referring to the intoxication of the husband prior to the date charged in the declaration as that from which his habitual intoxication began, that even though he was in the habit of becoming intoxicated prior to that date, still if defendants sold him intoxicating liquors and caused him to remain habitually intoxicated and in consequence thereof he squandered his money as charged in the declaration, that they would still be liable, was not erroneous where defendants attempted to show that he had been in the habit of getting intoxicated prior to such specified time.

      J. W. Templeman and W. O. Potter, for appellants.
    G. A. Hickman and F. M. Guinn, for appellees.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

3. Intoxicating liquobs, § 249 — how instructions construed as to liability of saloon keepers for loss of support by husband and father of plaintiffs. In an action against several saloon keepers to recover damages for loss of support due to the sale of intoxicating liquors by defendants to the husband and father of plaintiffs, and his consequent insanity, instructions examined as a series and construed as being to the effect that if defendants had sold intoxicating liquors to the husband to such an extent as to cause him to become habitually intoxicated and to cause him to become insane, by reason of which he was not able to support his family, that then plaintiffs would be entitled to recover for the loss of their means of support.

4. Intoxicating liquobs, § 250* — when instruction on damages for loss of support of husband and father due to sale of is proper. In an action against several saloon keepers to recover damages for loss of support due to the sale of intoxicating liquors by defendants to the husband and father of plaintiffs, and his consequent insanity, an instruction is properly given that if the jury believed from the evidence that the husband was an habitual drunkard, and the defendants, knowing him to be such, sold and gave him intoxicating liquors and caused him to remain habitually intoxicated, then such sales would be regarded in law as wilfully and wantonly made and would authorize the jury, in their sound discretion, to award plaintiffs exemplary damages in addition to actual damages, if any such damages had been proven.

5. Intoxicating liquors, § 208* — when complaint and order summoning commissioners to inquire into sanity of person addicted to use of are inadmissible. In an action against several saloon keepers to recover damages for loss of support due to the sale of intoxicating liquors by defendants to the father and husband of the respective -plaintiffs, and his consequent insanity, the complaint whereby the husband was committed to the insane asylum and the order of the court directing the summoning of a commission to examine the husband as to insanity were inadmissible.

6. Appeal and error, § 1489* — when erroneous admission of evidence is harmless error. The erroneous admission of improper evidence is harmless error where the facts sought to be proved are otherwise established.


text:
    A. J. Gibbons, Appellee, v. Paducah & Illinois Railroad Company, Appellant.
    1. Railroads, § 215

       — when damages are recoverable for obstruction of access to property by construction of embankment across street. It is not essential to a right of recovery of damages by a property owner for the shutting, off of ingress. and egress to his property by the construction of a railroad embankment across a street that the lots should abut upon the obstructed street, if it appears that there is a special injury to the property, the only limitation being that this right extends at least to the next intersecting street.
    2. Railroads, § 215* — what does not affect right of recovery for loss of access to property by construction of embankment. Owners of property bordering upon a street have, as an incident of ownership, a right of access by way of the streets, which cannot be taken away or materially impaired by the construction of a railroad embankment without compensation, and it is immaterial that the damage sustained is no greater than that sustained by the owners of other lots in the neighborhood.
    3. Railroads, § 216* — when damages accrue as natural result from construction of railroad embankment. Damages accrue to some extent, as a natural result, from the construction of a railroad embankment diagonally across two streets, where, owing to a natural obstruction on one of them, access to the property is shut off in three directions and it is left in the condition of a blind court.
    4. Railroads, § 216* — what is proper basis for estimation of damages for deprival of access to property by construction of embankment. The fair cash value of property before and after the construction of a railroad embankment shutting off access by way of the streets to the property is the proper basis for estimating damages.
    5. Railroads — when comparative value of property, access to which has been shut off by embankment, is Question for jury. The question whether property, the access to which by the streets is shut off by the construction of a railroad embankment, is of equal or greater value after the erection of the embankment than before is a question for the jury, in an action to recover damages for deprival of such access.
    6. Municipal corporations, § 876* — what is essential to dedi

      cation of street. To make a sufficient dedication of a street, the owner of the soil must devote the right of way to public use, and it must be accepted and appropriated by the public to that use by travel, and a recognition as a public highway by the proper authorities, by repairs or otherwise; but when a dedication is relied upon to establish the right, the acts of both the donor and the public authorities should be unequivocal and satisfactory of the design to dedicate on the one hand and to accept and appropriate to public use on the other.
    7. Trial, § 304

       — what is not improper method of indicating refusal of requested propositions of law. The refusal of propositions of law by the trial judge by taking up each one verbatim in his written opinion, commenting upon the reasons why he refuses it and at the conclusion of the comment stating that the proposition is refused, is sufficient, even though not in exact compliance with the statute requiring marking of propositions of law upon the paper as submitted.
    Appeal from the Circuit Court of Massac county; the Hon. D. T. Hartwell, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Courtney, Helm & Helm, for appellant; J. A. Connell, of counsel.
    Fred R. Young, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

This is an action brought by the appellee to recover damages that he sustained by reason of an embankment erected across the streets of Metropolis, Illinois, by the appellant, whereby the streets were blockaded and the property of appellee injured. A jury was waived and canse was heard by the trial judge and judgment rendered ag-ainst the appellant for $400 and costs, which judgment it is sought to reverse by this appeal.

It appears from the record in this case that on May 9, 1910, the City of Metropolis passed an ordinance permitting the Herrin and Southern Eailroad Company, its successors and assigns, to construct a railroad through the City of Metropolis, and to erect an embankment over and across Johnson, Seventh, Sixth, Vienna, Fifth, Fourth and other streets mentioned in said ordinance. S'aid railroad with the embankment was permitted to be built from the westerly line of the city limits of Metropolis to the northern line of Fourth street, where it connected with a bridge to be erected across the Ohio Biver. The embankments were permitted to be erected of earth, clay or other materials without openings for the streets or alleys; that afterwards, on or about October 15, 1914, the Herrin and Southern Eailroad Company assigned all its interest in this franchise to the appellant, its successors and assigns. During the years 1915 and 1916 the appellant erected an embankment of the height of 20 to 25 feet across Johnson, Seventh, Sixth, Fifth and Vienna streets, and that in connecting the said railroad with the said bridge a viaduct was left at Fourth street, which was down near the bridge.

It further appears that the appellee was the owner of the west two-thirds of Lots 10, 11 and 12 in Block 56 of said city, which was located on the west side of the railroad and the embankment, and that the principal part of the city was east of the railroad and embankment; that there were two dwellings located upon this property fronting Sixth street, and Johnson street passed along the westerly side of the property. The railroad and embankment passed diagonally across Johnson street at a point between Seventh and Eighth streets, across Seventh street and diagonally through Block 57, thence across Sixth street and across the northeast comer of Block 56, in which appellee’s property was located, thence across Vienna street and across the corner of Block 55, thence across Fifth street and through Block 37 down to and over Fourth street. Prior to the erection of the embankment the appellee had had access to his property over Sixth and Johnson streets to any part of the city; that there was a natural obstruction in Johnson street between Fifth and Sixth streets that prevented travel by vehicle south on Johnson street. The streets numbered 5, 6 and 7 were parallel and extended east and west, Vienna and Johnson streets were parallel and extended north and south. The evidence of the appellee tends to show that he sustained a special injury to this property, by reason of the obstruction of said streets, while the evidence of the appellant tends to show that the property was as valuable after the construction of the embankment as before.

The declaration, after setting out the location of appellee’s property and the construction of the said embankment and description and location of the streets and embankment, then charges that by reason of the construction of said embankment it permanently obstructed Johnson, Seventh, Sixth and Vienna streets and cut off and destroyed the way of ingress to and egress from the property of the plaintiff, by means whereof the plaintiff was greatly injured in his estate. A demurrer was interposed by defendant to this declaration, but was afterwards withdrawn and by stipulation all evidence proper under any proper plea should be introduced under the general issue. The evidence was heard, propositions of law submitted to the court and a judgment rendered for the plaintiff.

The appellant insists that the appellee is not entitled to recover for the reason, with others, that his lots did not border upon any portion of the streets at a point where same was obstructed, and insists that the overwhelming weight of authority is, that unless the obstruction exists at such point there can be no recovery. This presents for our determination the question as to the necessity of the lots bordering upon the street at the point of obstruction before a recovery can be had. Many cases decided by courts of other States are referred to by counsel, which seem to support this proposition, but we do not regard them as authority upon this point. Our own Supreme Court has said: “Whenever there is such an injury to the owner’s right of access to and use and enjoyment of the property which is not common to the public generally, he has a right of action.” Village of Winnetka v. Clifford, 201 Ill. 478. This seems to be sustained by many Illinois authorities cited in that case. In an earlier case, which was before the Supreme Court, in an action brought in the Circuit Court of Cook county for the purpose of recovering damages alleged to have been sustained by plaintiff by reason of the construction by the city of a viaduct or bridge along Austin and across Kinzie streets, at an intersection some 220 feet west of plaintiff’s premises fronting on Kinzie street, the court said after reviewing many authorities: “Whatever, therefore, may be the rule in other States, it clearly appears from this review of the cases that previous to and at the time of the adoption of the present Constitution, it was the settled doctrine of this court that any actual physical injury to private property, by reason of the erection, construction or operation of a public improvement in or along a public street or highway, whereby its appropriate use or enjoyment was materially interrupted, or its value substantially impaired, was regarded as a taking of private property, within the meaning of the Constitution, to the extent of the damages thereby occasioned, and actions for such injuries were uniformly sustained.” Rigney v. City of Chicago, 102 Ill. 64. In another case where it was sought to recover for damages by reason of an obstruction, where the property was not located at the point of obstruction, the Supreme Court said: “In this case we think it plain that plaintiff was entitled to recover. Her property fronted on Sixty-first street. It extended west to and cornered with that part of the street which was vacated. By the vacation of the street and the erection of the viaduct her property, extending from the railroad tracks east to State street, was shut in, and all access from the south and west shut off. What was originally a thoroughfare along the entire line of plaintiff’s property fronting on Sixty-first street was, by the action of the town, turned into a blind court.” City of Chicago v. Burcky, 158 Ill. 110. It is true, as stated by counsel for appellant, that before a party can recover, it must appear that his damages are not of the same kind as those sustained by the public at large, but that there must be some particular damage to his property before a right of action will accrue, and in commenting upon this question the Supreme Court said: “This court, however, does not hold, as have some authorities, that the property must be immediately abutting in order that the property owner sustain peculiar damages, as in City of Chicago v. Burcky, 158 Ill. 103, it was held that the vacation of a part of a street constituting a thoroughfare across railroad tracks and the erection of a viaduct in another place caused a special damage to the landowner, whose property was thereby left upon a blind court, in a manner different from the general public, and entitled him to damages although his property only touched the vacated portion at one comer.” Hill v. Kimball, 269 Ill. 409. In the same case it is further said: “It is sometimes stated that the test is not whether the property abuts but whether there is a special injury, and it is ordinarily held that the private right of access is the right not only to go from one’s property to the street and from the street to the property, but also to use the street in either direction as an outlet; that this right extends at least to the next intersecting street.” Hill v. Kimball, supra.

After a careful examination of the authorities, we are satisfied that it is not essential to a right of recovery that the lots should abut upon the obstructed street, if it appears from the evidence that there is a special injury to the property, and the only limitation that we know of to this rule is that set forth in the case of Hill v. Kimball, wherein it says: “That this right extends at least to the next intersecting street. ’’ Hill v. Kimball, supra.

It is next insisted by appellant that the injury, if any, was not peculiar to appellee’s property and did not differ in kind from that sustained by the public in general and from the owners of other lots in the neighborhood. The fact that other lots sustained an injury of exactly the kind that appellee’s did would not bar him of the right of recovery. Each and every property owner that may have sustained a particular injury over the public may have his right of action. If half a dozen other property owners were situated similarly to the appellee and sustained a like injury, which was common only to those particular persons, this would not, in our judgment, necessarily class the damage to the property as that being sustained by the public in general. The Supreme Court has said: “Owners of property bordering upon a street have, as an incident of their ownership, a right of access by way of the streets which cannot be taken away or materially impaired without compensation.” Illinois Malleable Iron Co. v. Lincoln Park, Com’rs, 263 Ill. 451, and cases there cited. We can see no reason why, if by the same act special damage is caused to several different persons, that that would in any manner deprive any one of them belonging to that class from their right of action. “The closing of a street in front of property, thereby turning the street into a blind court directly in front of the property, inflicts a special damage upon the owner which is not suffered by the public at large,” and this may extend to one or more persons as we view it. Village of Winnetka v. Clifford, supra. “The fact that many others sustain an injury of exactly like kind is not a bar to individual actions of many cases of a public nuisance.” City of Chicago v. Burcky, 158 Ill. 109; Hill v. Kimball, supra.

It is again insisted by counsel that the evidence in this case did not warrant a finding and judgment for the plaintiff. Upon an examination of the record we find that the evidence of the witnesses of appellee tends to show that when this embankment was erected appellee’s ingress and egress were cut off on Sixth street to the east, on Johnson street to the north, and by the natural obstruction on Johnson street to the south, so that the appellee’s property was left in what is termed by some of the authorities cited as a blind court, and where property is placed in such a position it follows as a natural result that damages would accrue to some extent. The witnesses for appellee estimated the damage to this property, many of them at a greater sum than that allowed by the court, and based this damage upon its value before and after the erection of the embankment. It is insisted, however, that these witnesses took into consideration, in estimating this value, elements that were not proper. It is true some of them testified that the value of the property was diminished, without giving special reasons therefor, and some of them testified as to some other facts that were not material in estimating the damages, but all of them, as a final basis of value, fixed it at the fair cash market value of the property before and after, which we understand to be the correct rule for estimating damages in this class of cases. All of these witnesses gave as the principal element of damages the shutting off of ingress and egress to the property by this embankment. It is true that the witnesses for appellant testified that the property was of equal or greater value after the erection of the embankment than before, but these were questions of fact for the court to determine, and we are unable to say, after the reading of this testimony, that the finding of the court upon this proposition was manifestly against the weight of the evidence.

It is next contended by counsel that the appellee’s right of ingress and egress was not cut off because, as they say, a strip of ground of the width of 25 feet was left along the east side of the block in which appellee’s property was situated, and connected with Sixth street, so that if he had desired he could have traveled over this strip of land, and thereby obtained ingress and egress to his property. The evidence in the case shows that while they were constructing the embankment this strip of 25 feet was left open and was used in the construction of the embankment, but there is no evidence of any dedication, no notifying the public that it was left open as a street or passageway, no acceptance by the city, or anything that indicated an intention to leave it open as a street or passageway prior to the institution of this suit, and nothing since, except the introduction of a plat in evidence showing the passageway marked thereon, but it is conceded that this was not part of the original plan of the construction of the road. It appears that "no objection was made to persons traveling upon this strip of land, but that the principal use was by the contractors in completion of the embankment. There was nothing shown, as we see it, to have prevented the owner from at any time closing up the strip and stopping the public from traveling thereon. The city authorities had not been advised that the strip was left open for public use, and we do not understand the acts of the appellant to be such as to constitute a dedication. “To make a sufficient dedication, the owner of the soil must devote the right of way to public use, and it must be accepted and appropriated by the public to that use by "travel, and a recognition as a public highway by the proper authorities, by repairs or otherwise. But when a dedication is relied upon to establish the right, the acts of both the donor and the public authorities should be unequivocal and satisfactory of the design to dedicate on the one hand and to accept and appropriate to public use on the other.” City of Chicago v. Drexel, 141 Ill. 105, and authorities there cited. The same doctrine is announced and this decision sustained in the case of the City of Chicago v. Chicago, R. I. & P. Ry. Co., 152 Ill. 571, and the case of Mason v. City of Chicago, 163 Ill. 351. The acts of the appellant are not such as show an unequivocal and clear intent on its part to leave this strip of ground open as a public highway, or was it ever accepted by the city as such, and we do not believe that under the rules announced by our courts that it was ever dedicated to the public use, or even intended to be such until after the bringing of this suit, which would not affect the interest of the parties, as the suit must be tried with relation to the rights at the time of its institution.

It is next contended by appellant that the court erred in refusing to pass upon the propositions of law submitted by it, and it will be observed that the next error assigned, being the fourth, is that the court erred in refusing the several propositions of law, and each of them submitted. Seven propositions of law were submitted to the court by the appellant, and at the conclusion of the trial the court made a written finding and holding, which was embodied in the bill of exceptions and made part of the record. Instead of marking the propositions of law upon the paper as submitted, he takes up each proposition of law in this written opinion and quotes it verbatim, comments upon the reasons why he refuses it, and then, at the conclusion of the comment says that the proposition is refused. It is true that the court failed to mark these propositions of law in the exact manner required by the statute, but he did in each instance hold, and so stated, that the proposition was refused, which sub-served the purpose of the statute. The object of the statute is to preserve the questions so that the court of review may determine whether the trial judge entertained correct views of the principles of law involved in the proceedings, and where the record discloses that the trial judge did pass upon the propositions of law and gives his views of the law, then a failure to mark the propositions of law in the manner required by the statute would be harmless error. Chicago Union Traction Co. v. City of Chicago, 202 Ill. 585. Where the trial court failed to pass upon the propositions of law in the manner provided by statute, it is said: “Although not a literal compliance with the Practice Act this indorsement clearly shows that the court did consider and pass upon it, and did refuse it as inapplicable to the case. It might as well have been marked ‘refused.’ We think that is the proper disposition to be made of it.” Moore v. Sweeney, 28 Ill. App. 547.

We think the court did, in effect, in its opinion refuse the several propositions of law, and that the error assigned is without merit. The principles embodied in the several propositions of law have been passed upon in this opinion and it is not necessary to consider them in detail. While many courts of other jurisdictions entertain different views as to the several propositions involved in this case, we are of the opinion that the views expressed herein are in accord with the decisions of the courts of this State, and that the trial court committed no reversible error in its several holdings as to the law and the facts in the case. We can see no reason why the judgment should be reversed, and the judgment is affirmed.

Affirmed.