text:
    Laura M. Jensen, Appellee, v. East St. Louis Railway Company, Appellant.
    1. Cabbiers, § 452

      —when declaration is sufficient in action by passenger for injuries received as result of becoming frightened at fallen trolley wire. Where a declaration charged that while plaintiff was a passenger on a certain street car “the trolley wire broke, or became detached from its fastenings in some manner unknown to plaintiff, and fell upon and around the car, causing great flashings of electricity, explosions and great and startling noises, which greatly frightened the occupants of the car, and endangering their lives by exposing them to live wires,” and, believing her life to be endangered, plaintiff jumped from the car in an effort to escape and was injured, held that a good cause of action was stated although the declaration did not specifically charge that defendant was guilty of negligence.
    2. Cabbiers, § 462*—when res ipsa loquitur rule applies. The res ipsa loquitur doctrine applies to an injury to a passenger on an electric street car sustained on jumping from the car to escape danger from a fallen trolley wire, the flashes and reports from which terrified the passengers.
    3. Negligence, § 200*—when contributory negligence of person in time of sudden danger is question for jury. In times of sudden danger or threatened peril, the injured person is not charged with using the safest way to avoid, the danger, but to act under such judgment only as an ordinarily prudent person might exercise under the circumstances and conditions as they existed at the time, and the question is for the jury to decide whether a party who was hurt by his own act in attempting to escape from injury when put in sudden danger by another’s negligence acted as. a reasonably prudent person might have done under the same circumstances.
    4. Cabbiebs, § 480'

      —'When question whether evidence is sufficient to rebut presumption of negligence is for jury. Where a person was injured while trying to escape from a live trolley wire on a street car, under circumstances to which the doctrine of res ipsa loquitur applied, held that the effect of such doctrine was merely to raise a presumption that the injury was caused by the fault of the street car company, but this inference might be rebutted, and whether or not the proofs in the case were sufficient to rebut the presumption of negligence on the part of such company raised by such doctrine was, under all the circumstances, a question of fact for the jury.
    5. Appeal and erbob, § 1539*—when giving of instruction is harmless error. Where an instruction to the jury states an abstract proposition of law, the court might for that reason refuse it, but the giving of such an instruction is not reversible error, because it is abstract in form.
    Appeal from the City Court of East St. Louis; the Hon. Robebt H. Flannigan, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Barthel, Farmer & Klingel, for appellant.
    W. L. Coley, for appellee.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is an appeal from a judgment in favor of Laura M. Jensen, appellee, against Bast St. Louis Railway Company, appellant, for $700 on account of injuries she received upon the occasion of the breaking of the trolley wire furnishing electric power to a car of appellant, running on the Caseyville road in the City of Bast St. Louis, and upon which she was a passenger. The declaration, which consisted oh one count, averred that appellee “boarded said car to become a passenger thereon, then and there exercising due care and caution for her safety; that the car, which was then and there under the control of defendants by its servants and employees, started; that the trolley wire broke, or became detached from its fastenings in some manner unknown to plaintiff, and fell upon and around the car, causing great flashings of electricity, explosions and great and startling noises, which greatly frightened the occupants of the car, and endangering their lives by exposing them to live wires. * * * That believing her life to be thus endangered, plaintiff ran and jumped from the car in an effort to escape the danger, and in some manner fell upon her head,” and thereby received serious injuries.

The proof showed that by the breaking of the trolley wire it was thrown down on the top of the car; that it was a live wire and threw out flashes and made sharp reports and rumblings, so that the passengers were thrown into a panic; that the motorman, being frightened, left the controller and went back into the car to protect himself; that in her excitement appellee jumped from the car while it was still in motion, although the conductor attempted to stop her, and received the injuries and shock to her nervous system complained of. It is contended by appellant that the declaración does not state a cause of action because it does not anywhere declare that appellant was guilty of negligence which caused or contributed to appellee’s injury, and that therefore a motion made by it in arrest of judgment should have been sustained. Appellee on the contrary claims that the facts stated in the declaration show negligence on the part of appellant and therefore it was not necessary to state specifically that appellant was guilty of negligence, also that the doctrine of res ipsa loquitur applies.

Appellee, to support her theory, relies to a large extent upon the case of Chicago Union Traction Co. v. Newmiller, 215 Ill. 383. In that case the declaration charged the plaintiff was a passenger on one of defendant’s electric Lake street cars; that while she was in the exercise of ordinary care for her own safety, a fuse exploded, causing a loud report and.a large amount of flame and smoke on said car, caused by the recklessness and negligence of the defendant, which explosion, flame and smoke produced a panic among the passengers, by reason of which they made a rush for the rear door and platform, whereby the plaintiff was pushed and thrown from the car and injured. In the course of the opinion in that case, it is said: “As to the explosion being the result of the negligence of appellant, while, as a general rule, negligence is not to be presumed, there are well understood cases where the circumstances of the accident afford sufficient prima facie evidence of negligence. We think the case at bar falls fairly within the maxim res ipsa loquitur. Where an injury occurs to a person who is a passenger, in the exercise of ordinary care, upon the car of a common carrier, by some defect in the machinery wholly under the control of the carrier, a prima facie case of negligence on the part of the carrier is established, and the burden of proof is upon it to show that the accident was without its fault. * * * It is again insisted -that the declaration is defective in that it does not allege that appellee was injured by the explosion or in endeavoring to escape from danger apprehended by her from the explosion, but that she was injured by the passengers in rushing out of the car, there being no negligence shown or alleged against appellant in receiving the other passengers or in failing to restrain them; also, that the evidence shows that appellee jumped or fell from the car, and that she was not pushed or thrown therefrom. We do not consider either contention tenable. The declaration avers that the injury was the result of the explosion; that it created a panic among the passengers, causing them to rush to the rear door, appellee among them, and in the excitement she was pushed from the car onto the pavement and received the injury. These allegations were clearly sufficient to sustain the plaintiff’s action, especially after plea and verdict, and, as we have seen, the evidence fairly tends to sustain the declaration.”

In Garner v. Chicago Consol. Traction Co., 150 Ill. App. 149, the sudden blazing out of a flame from the controller on an electric street car, causing a panic among the passengers, was held to have afforded prima facie evidence of negligence on the part of the traction company, and the doctrine of res ipsa loquitur was declared to be applicable to the case. In referring to the rule of res ipsa loquitur in Britton v. St. Louis Transfer Co., 155 Ill. App. 317, this court said: “This doctrine is thoroughly approved by our Supreme and Appellate Courts, and is well stated by an English judge in Scott v. London, etc., Docks Co., 3 Hurls. & Colt. 596, in this language: ‘There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or of his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. ’ The mere proof of an injury under such circumstances entitles the plaintiff to recover, unless the defendant shall rebut the prima facie case by showing that it exercised due care, or that it was not guilty of the negligence charged. Pittsburg, etc., Ry. Co. v. Campbell, 116 Ill. App. 356; Union Traction Co. v. Newmiller, 215 Ill. 386; North Chicago St. Ry. Co. v. Cot lon, 140 Ill. 494; Elvis v. Lumaghi Coal Co., 140 Ill. App. 112.” It would thus appear that where the acts as stated in the declaration show negligence on the part of the defendant, it is not necessary to specifically charge that the defendant was guilty of negligence for the reason that the legal interpretation of the acts stated in the declaration, of themselves, constitute negligence. We are therefore of opinion that under the above authorities the declaration in this case stated a cause of action, and the law stated in the same authorities, when applied to the facts in this case, demonstrates conclusively that the doctrine of res ipsa loquitur applies.

It is contended by appellant that appellee was guilty of contributory negligence for the reason that she did not keep her seat and remain in the car when the trolley wire broke. The rule is well settled in this State that in times of sudden danger or threatened peril the injured person is not charged with using the safest way to avoid the danger, but to act under such judgment only as an ordinarily prudent person might exercise under the circumstances and conditions as they existed at the time. The fact that after being put in sudden danger by appellant’s negligence appellee was hurt by her own act, in attempting to escape from injury, does not necessarily charge her with contributory negligence, but leaves it a question for the jury to decide whether she acted as a reasonably prudent person might have done under the same circumstances. Dunham Towing & Wrecking Co. v. Dandelin, 143 Ill. 409; Chicago & G. T. Ry. Co. v. Kinnare, 76 Ill. App. 394. In Jones v. Boyce, 1 Starkie 493, the plaintiff, •who was a passenger in a stagecoach, became alarmed at an accident and jumped off the coach, in consequence of which his leg was broken. A judgment against the proprietor of the coach in favor of the person injured was sustained, although the coach was not actually turned over, upon the ground that there existed a reasonable cause for alarm on the part of the person injured. In Chicago Union Traction Co. v. Newmiller, above referred to, a judgment was sustained in favor of a street car passenger, who rushed to the rear of the car and was pushed off, her fright being caused by the explosion of a fuse, which caused a sudden noise from the controller and flames to shoot out of it. The question as to whether appellee was in the exercise of ordinary care in this case was therefore one for the jury, and the facts were, under the law, sufficient to sustain her claim that she was using such care.

The effect of the doctrine of res ipsa loquitur is merely to raise a presumption that the injury was .caused by the fault of the appellant, but this inference may be rebutted, and it remains to be considered whether the evidence in this case rebuts the inference that the injury was occasioned by the failure of appellant to use due care. The trolley wire causing the trouble broke at a splice, described as a Philadelphia splice, which was made by bending the ends of two wires back in the form of a hook and soldering them together, the splice being then inclosed in a copper sleeve and covered with lead. It was shown that an employee of appellant, known as the “ trouble man,” examined the line at frequent periods and that he had gone over this line and examined the wire about eight days before the accident; that he stopped at this connection, looked at it, tapped it with a hammer and reported it “O. K.” It was shown that this manner of splicing was one in general use by electric lines and that upon investigation, after the accident, it could not be discovered what had caused the wire to break in the sleeve. Appellee claimed that the wire inspector did not make sufficient examination of the splice when he last examined it. He testified that the break looked to him like a new break and that in his judgment the wire looked good. He also said: “I sat on the top of the tower and rode along at the rate of four miles an hour. We stopped at all connection joints. We stopped at this connection. I looked at it and tested it by my eye. I did not pnt any pnll test on it for it already had that. It had three or four hundred pounds as it hung there. I did -not test that joint to see if there was any defect in it. I only looked at it. I saw nothing wrong with it. That was ■ about eight days before the accident. I do not mean to say that is all I could do. It is all I did. That is what I mean by inspection. * * * I never put any pull test to it other than its own weight. . It has a pull test of about four hundred pounds. * * * When I tested these joints I tapped them with a hammer. * * * I do not know when it was put in or whether it was defective when it was put in. * * * In a sleeve like this you could not discover a defect.” Another witness for appellant, its superintendent of power, testified: “It is possible for wires to go into those sleeves that have not been properly constructed. You cannot see the wire in the sleeve, but you can see it before it is put in.” The statements of the wire examiner quoted above are those which are most favorable to appellee and are merely quoted to show that there was some question as to whether the last examination of the splice was a thorough one or not. Whether or not the proofs in the case were sufficient to rebut the presumption of negligence on the part of appellant, raised by the doctrine of res ipsa loquitur applicable in this case, as above set forth, was, under all the circumstances, a question of fact for the jury, and by their verdict they must have determined that issue against appellant.

Appellant complains of the first instruction given for appellee, but the law laid down in it appears to us to be substantially the same as that contained in an instruction approved by our Supreme Court in Chicago Union Traction Co. v. Newmiller, supra. It is true the instruction in this case states an abstract proposition of law, but while the court might for that reason refuse it, yet the giving of such an instruction is not reversible error, because it is abstract in form." Two other instructions given for appellee and complained of by appellant appear to be in conformity with our views of the law as hereinbefore set forth, and the objections to them are not well taken. The judgment of the court below in this case will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    Marie R. Means, Administratrix, Appellee, v. Terminal Railroad Association of St. Louis, Appellant.
    1. Wobkmen’s Compensation Act—what constitutes statement of new cause of action in action at common law. An amended count setting up facts showing that an employee was not within the Workmen’s Compensation Act at the .-time of the injury which caused his death, which was not filed until more than two years after the death of the employee, is barred by the statute of limitations, where the action was brought at common law and the count, prior to its amendment, set up no facts showing that the act did not apply.
    2. Pleading, § 466

      —what may he intended as to declaration after verdict. After verdict it may be intended that every essential fact alleged in the declaration, or fairly to be implied from what is alleged, was established on the trial, but it is not to be inferred from that that where an essential matter is omitted in the statement the same may be implied after verdict, because it is necessary to make the statement complete..
    3. Wobkmen’s Compensation Act, § 2*—when presumed that employer is within provisions of. Under the Workmen’s Compensation Act, where no election is made by the employer, as therein provided, the legal presumption is that he is under its provisions, and the employee cannot reject its provisions while the employer is subject thereto.
    4. Action, § 2

      -—wiiat constitutes a cause of. A cause of action includes not only a right of recovery but also a right to bring the action to recover, and where a court has jurisdiction to grant the relief sought, there must be a statement whi'ch constitutes a cause of action entitling the party bringing the suit to maintain an-action in that court.
    Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vandeventeb, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed November 13, 1916.
    • Kramer, Kramer & Campbell, for appellant; T. M. Pierce, of counsel.
    C. P. Coultas and Keeps & Sullivan, for appellee.

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

      See Illinois Notes Digest, Vole. XI to 3tV, and Cumulative Quarterly, same topic gad section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Charles A. Means and a man named Holly were put at work by appellant, in its yards in East St. Louis, on January 23, 1913, repairing cars. In the work it became necessary to raise the car, which was a box freight car, by means of jacks, so they could remove the bolster. After the car had been so raised, it suddenly turned over sidewise, catching both workmen beneath it and killing them. Appellee’s claim is that the jacks -furnished by appellant were imperfect and defective and thereby caused the injury, while the theory of appellant is that the jacks were in good condition and suitable for the work and that the injury came from the fact that the workmen placed them under the car lengthwise and not crosswise of the car, as they were instructed to do when they were put to work. On January 2, 1914, appellee filed a suit for damages under the statute as administratrix of the estate of Charles A. Means.

The declaration, consisting of one count, averred that the accident was caused by reason of the jacks that were furnished being defective and insufficient for the purpose for which they were used, in that the cogs intended to hold them up would not hold fast but would allow the upper part of the jacks to slide down; that this defective condition was known or by the exercise of ordinary care could have been known to appellant, but was not known to appellee’s intestate. On January 22, 1914, which was within a year after the accident, an amended declaration of three counts was filed. The first count stated appellant was engaged in interstate commerce, and that deceased was employed by appellant to repair a car on a certain track, which car and track were used in interstate commerce; that appellant negligently failed to instruct deceased how the work should be done with ordinary safety, and that one of the jacks used slipped, by reason of the manner it was placed under the ear. The second count also averred that appellant was engaged in using the car in interstate commerce, and the negligence relied on was the failure on the part of the company to furnish deceased a safe place in which to work, and to instruct him how to avoid the danger. It also charged the imperfection and insufficiency of the jacks and the inexperience of the fellow-servant, Holly. The third count made the same charges as to interstate commerce and the negligence therein laid, and is substantially the same as in the original declaration. On May 19,1914, appellee withdrew the second amended count and went to trial. The jury returned a verdict against appellant for $3,000, but a motion for a new trial was granted by the court. On June 2, 1915, more than two years after the death, appellee filed an amended third count to her amended declaration: This was substantially the same as the former one, except there was added the averment that appellant did not furnish deceased, nor post in a conspicuous place at the office, place or plant where deceased was employed, a legible statement or notice of the compensation provision of the Workmen’s Compensation Act of the State of Illinois. Afterwards appellee filed a second amended third count, in which the above averment was repeated and the allegation that appellant was engaged in interstate commerce omitted, but alleging that it was engaged as a common carrier of freight and passengers between the States of Illinois and Missouri. Appellant filed a plea of general issue and a special plea of the statute of limitations. A demurrer was sustained to the special plea and issue joined on the general issue. Appellantabided its special plea and went to trial. The jury found appellant not guilty on the first count of the amended declaration, but guilty on the second amended third count and assessed appellee’s damages at $3,000. A motion for a new trial was denied and judgment entered against appellant on the verdict.

The first proposition presented for our consideration is, should the demurrer to the statute of limitations . to the second amended third count of the declaration on which the verdict was based have been sustained; and in determining this, two questions are involved: First. Does a declaration against a common carrier for injuries to or for the life of an employee state a cause of action which does not show the rights of an employee, or those who might be injured by his death, were not covered by the Workmen’s Compensation Act in force at the time of the accident, to wit, January 23, 1913? Second. Can a cause of action, stated under the Federal Employers’ Liability Act, governing interstate commerce, be changed to show a liability under the State act, after the time a new action would be barred by the statute of limitations, or does such a change constitute a new cause of action, which will be barred by the statute 1 The Compensation Act was mot referred to, nor was.. any liability averred under the State statute, as distinguished from the Federal statute in any count of the declaration, except by the second amended third count, which was filed after the expiration of a year from the time of the accident, and if a good cause of action could not be stated, even defectively, without including both of these elements, the statute of limitations intervened and the demurrer to the plea of the statute should not have been sustained. To warrant the court in its action in sustaining the demurrer to the plea of the statute of limitations, it must have found a cause of action had been stated in the declaration prior to the expiration of a year from the time of the injury.

A cause of action includes not only a right of recovery but also a right to bring the action to recover. Although the plaintiff may have a meritorious cause of complaint, if such cause is stated in a court not having jurisdiction to give the relief prayed for or hear the case, it cannot be well said a cause of action has been stated in that court, as there is an absence of a right to recover in such court. While appellee may have stated such facts in a trial court as would show her entitled to proceed under the Compensation Act, such statement might not be a statement of a cause of action which would entitle her to obtain a judgment in that court, because, under the statute, the Industrial Board may have been the only court having jurisdiction. Where a court has jurisdiction to grant the relief sought for, there must be a statement which constitutes a cause of action, entitling the party bringing the suit to maintain an action in that court. While it is true there may be a defective statement of the cause of action which will be sufficient to sustain a judgment after verdict, this does not mean that such essential matters can be omitted from the statement as would make the same insufficient, unless the matters omitted can be inferred from the things stated; or, as stated in Walters v. City of Ottawa, 240 Ill. 259: “ ‘On the one hand, the particular thing which is presumed to have been proved must always be such as can be implied from the allegations on the record by fair and reasonable intendment; and on the other hand, a verdict for the party in whose favor such intendment is made is indispensably necessary, for it is in. consequence of such verdict, and in support of it, that the court is induced to put a liberal construction upon the allegations on the record.’ (1 Chitty’s Pl. 673.) ‘After verdict it may be intended that every essential fact alleged in the declaration, or fairly to be implied from what is alleged, was established on the trial; but where the declaration fails to show that the plaintiff has a cause of action there is no room for intendment or presumption. ’ Smith v. Curry, 16 Ill. 147; Botkin v. Osborne, 39 id. 101; Bowman v. People, 114 id. 474; Gerke v. Fancher, 158 id. 375.” But it is not to be inferred from that, that where an essential matter is omitted in the statement the same may be implied after verdict, because it is necessary to make the statement complete. For example, in a suit for personal injury, to make a cause of action there must have been due care on the part of the party injured and, under some declarations, this must be stated while in others it may be cured by verdict. As stated in the Walters case, supra: “A declaration in an action to recover for injuries received through negligence which does not aver due care on the part of the plaintiff when he was injured, and does not contain any averment in regard to his conduct or the" circumstances surrounding him from which due care on his part may be reasonably inferred, does not state a cause of action, and, after the period of limitation fixed by the statute has elapsed, cannot be amended to state a cause of action not subject to the bar of the statute. If a declaration omits to allege any substantia] fact which is essential to a right of action and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect. Foster v. St. Luke’s Hospital, 191 Ill. 94.”

As before stated, a cause of action is not only a right to recover but also includes a right to enforce a recovery. Therefore can it be said, in view of the Compensation Act in force at the time of the accident, that the third count or amended third count stated a cause of action before it was again amended after the expiration of the year, by the added averment, stating that appellee’s intestate did not come within said act? We think, not because it could not show a right of recovery against appellant at common law without ail averment, that appellee’s intestate was not under the Compensation Act. To refer again to the case of Walters v. City of Ottawa, a leading and luminous case upon this question, and which was a suit against a city for injuries alleged to have been incurred by reason of its negligence, it was there held, the notice required by law to be given the city officials was a part of the action, and its omission was fatal and could neither be implied and cured by verdict nor cured by amendment after verdict, because no cause of action existed unless such notice had been served. So here no right of action existed if the jurisdiction of the common-law court had been superseded by the remedy provided by the jurisdiction of the commission or board provided for by the Compensation Act. There was no reference before the amendment to the Compensation Act and her intestate’s relation thereto, in the declaration, and in its absence the legal presumption was that deceased was under the provisions of the act. The Compensation Act provides that where no election is made, as provided therein by the employer, the legal presumption exists that the employer is under its provisions. The statute is so construed in Dietz Big Muddy Coal & Iron Co., 263 Ill. 180 [5 N. C. C. A. 419], and it is further therein stated, that the employee cannot reject its provisions while the master is subject to the same. It was plain, therefore, that on the face of the pleading, prior to the second amendment of the third plea, appellee had no right to enforce her sun at common law, but was bound to proceed under the provisions of the Compensation Act. This question is not a new one to this court. In Krisman v. Johnston City & Big Muddy Coal & Mining Co., 190 Ill. App. 612, where there were no allegations' in the declaration that the parties were not under the provisions of the act, this court held that the declaration was insufficient. In accordance with the views herein set forth, we conclude that a cause of action was not stated in the City Court prior to the intervening of the statute of limitations, and it was therefore error on the part of the court not to sustain the plea. The judgment will be reversed and the cause remanded with directions to the City Court to overrule the demurrer to the plea of the statute of limitations.

Reversed and remanded with directions.


text:
    Mahala Threlkeld, Appellee, v. Joe Norwodowski et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Franklin county; the Hon. ■Julius C. Kern, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by Mahala Threlkeld, plaintiff, against Joe Norwodowski and others, defendants, under the Dram-shop Act, sec. 9 (J. & A. 4609), for damages for injury to her means of support due to the death of her son from intoxication from liquor sold to him by defendants.
    Plaintiff lived with her husband and family. They had a home worth about-$1,500, and the husband owned some land in Missouri worth about $500 and also had a small amount of money. The son lived with them, and for several years had been drinking heavily. He was a painter, and, when working, made from $3 to $5 a day, and gave his mother some $3 to $5 a week.
    W. H. Nelms, F. P. Drennan and Layman & Johnson, for appellants.
    R. E. Smith and W. P. Seeber, for appellee.
    Abstract of the Decision.
    1. Intoxicating liquors, § 233

      —when mother is injured in her means of support to extent of wages earned try son and paid her.
      Where a son twenty-seven years old living with his parents and paying his mother a part of his wages substantially every week died from the effects of intoxication caused by liquors bought at a certain saloon, held that his mother had been injured in her means of support to the extent of the loss of his wages paid her, and was entitled to maintain an action under the Dramshop Act, sec. 9 (J. & A. T 4609), for damages because of such injury, notwithstanding she and her husband had some property and she may not have been dependent on such son for support.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

2. Damages, § 206 —when instruction is erroneous in not restricting damages recoverable to proof. An instruction as to damages which leaves it to the jury to give such an amount as in their judgment would compensate the plaintiff for the damage she had sustained, regardless of the proofs in the case, or one which recites various elements going to constitute damage to the plaintiff, without confining same to such as had been shown by the evidence, is erroneous in not restricting the damages to the amount as shown by the proof.

3. Intoxicating liquors, § 249*—when instruction on damages in action for death due to intoxication is erroneous. In an action under the Dramshop Act, sec. 9 (J. & A. If 4609), for damages for death of plaintiff’s son caused by intoxication, an instruction which named as an element of damages to be considered by the jury the probable expectancy of life of the deceased and contained no reference to the probable expectancy of life of the plaintiff is erroneous, and such element should either have been omitted from the instruction or the jury should have been told they could consider the probable expectancy of life of both said deceased and said plaintiff.


text:
    S. E. Pirtle, Appellee, v. H. E. Gray and Malcolm F. Steel, trading as Meeker Hardware Company, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Clay county; the Hon. James C. McBbide, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by S. E. Pirtle, plaintiff, against H. E. Gray and Malcolm F. Steel, trading as Meeker Hardware Company, defendants, to recover for damage done to plaintiff’s home from leakage of water due to the negligent installation of plumbing fixtures. From a judgment for plaintiff for five hundred dollars, defendants appeal.
    J. L. Boyles, for appellants.
    Bose & McCollum:, for appellee.
    Abstract of the Decision.
    1. Damages, § 200

      —when instructions are not in conflict. Instructions that if the jury found for the plaintiff they should assess his damages at such sum as they believed from the evidence he had sustained, held not in conflict with defendants’ instructions confining the recovery to compensatory damages, where, under the pleadings, and instructions, punitive damages could not have been assessed, and such damages were not asked on the trial, nor recovered.
    2. Damages, § 209*—when instruction is not erroneous as not requiring preponderance of evidence. An instruction that the jury should assess such damages as they believed from the evidence the plaintiff had sustained is not erroneous because not stating that their assessment of damages should be from a preponderance of the evidence.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

3. AppeaXi Aim ebbob, § 365 —when objection to testimony may not be made. Testimony heard on the trial of a case without objection cannot be objected to on appeal, although the objection may not be without merit.

4. Damages, § 191*—when amount of for injury to property is for jury. It is for the jury to determine from all the evidence, under the instructions, what was the proper amount to be paid, in a suit for damages, for injury to property, and where the evidence covered a wide range, and, had the jury followed some of the witnesses, the damages might have been fixed as high as eight hundred dollars, a finding of five hundred dollars was not excessive.


text:
    E. Bucher Packing Company, Appellee, v. Joe McAllister et al., Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Pulaski county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action of assumpsit aided by attachment by E. Bucher Packing Company, plaintiff, against Joe Mc-Allister, defendant, I. J. Hudson interpleading and claiming the property under a chattel mortgage. From a judgment for plaintiff for- $371.43 and costs, defendants appeal.
    Charles L. Bice, for appellants.
    Mtt.t.f/r & Britton and George B. Baker, for appellee.

      Abstract of the Decision.
    1. Contracts, § 387

      -—When evidence is sufficient to sustain verdict for plaintiff on issue of nonperformance. Evidence held sufficient to sustain the finding and judgment for plaintiff on issue of nonperformance of contract.
    2. Appeal and error, § 624*—when appeal must he prayed for and allowed. Where the holder of a chattel mortgage executed by the defendant in an attachment suit upon the property attached interpleaded in said suit and excepted to the judgment therein in favor of the plaintiff, signed the defendant’s appeal bond, and joined in the defendant’s assignment of errors in the brief and argument filed in the case, but did not himself pray for or effect an appeal, held that it was imperative that an appeal be prayed for and allowed at the term at which the judgment, order or decree was entered, and motion to dismiss appeal by such interpleader should be sustained.
    3. Appeal and error, § 1265*—when presumed that court applied law to facts in case correctly. In the absence of any propositions of law presented by appellant or question raised as to the correctness of the rulings of the court on the evidence as to appellant, it must be presumed the court applied the law to the facts in the case correctly. i

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Stanley Steffey by A. M. Steffey, Appellee, v. Henry Sandifer et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lawrence county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by Stanley Steffey, by bis next friend, A. M. Steffey, plaintiff, against Henry Sandifer and others, directors and teacher of school district No. 24 of Lawrence county, Illinois, to recover damages for excluding him from a certain school. From a judgment for plaintiff for one hundred dollars against the directors only, defendants appeal.
    There were two schoolhouses in the district, one near the west side called Birds schoolhouse and the other on the east side called the Ford schoolhouse. They both faced a public road running east and west through the district, and near the middle of the district A. M. Steffey lived on his farm with his wife and two minor children, one of them being the plaintiff-. The house in which he lived, on the farm, was on the same road as the two schoolhouses and about two hundred feet further from the Ford school than it was from the Birds school. The Steffey children had been in the habit of attending the Birds school, but in the fall of 1914, in allotting the children of the district to the two schools, the directors drew an imaginary line north and south through the district and allotted the children east of the line to the Ford school and those west to the Birds school. This line ran west of plaintiff’s home and his father was notified to send his children to the Ford school. The father objected to this and sent his children to the Birds school when it opened in September. After a time the teacher refused to teach plaintiff and later, in October, his father moved with his family to a small house in the village of Birds not far from the Birds sehoolhouse and within the territory set apart for pupils of that school. The directors, however, appear to have insisted that the removal was not made in good faith or intended to be permanetit and, under their direction, the teacher still refused to give instruction to plaintiff. This condition of affairs continued until the latter part of January,' 1915, when this action was begun against the directors and teacher.
    McGaughey St Tohill and George W. Lackey, for-appellants.
    S. J. Gee and P. W. Barites, for appellee.
    Abstract of the Decision.
    1. Schools akd school distbicts—when declaration in action for wrongful exclusion from nearest school is sufficient. Where, in an action by a minor against the directors of a school district and teacher to recover damages for excluding him from a certain school, the declaration charged that the defendants had denied plaintiff the right of an education in a certain school in said district and that such denial “was from the wilful and malicious and unlawful conduct to (plaintiff) by the said defendants so that (he) could be denied the use of the said school and instruction of the same,” held, that the declaration contained a sufficient charge of wilfulness and maliciousness on the part of the defendants, and the court properly overruled a demurrer thereto.
    2. Appeal akd error, § 783

      —when dill of exceptions is insufficient. A bill of exceptions which fails to state that it contains all of the evidence in the case, and the certificate of the trial judge thereto containing no statement with reference to the matter, is insufficient to permit a review of the facts and the same is not cured by statements of counsel appearing in different portions of the bill of exceptions, or by a certificate by the official court reporter included in the record after the signature of the trial judge, as such certificate is no part of such bill.

      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. Presiding Justice Higbee

delivered the opinion of the court.

3. Appeal and error, § 1303 ^when presumed that verdict of jury is correct on facts. There being no sufficient bill of exceptions in the record, it must be assumed that the verdict of the jury was correct upon the facts.

4. Schools and school districts, § 175*—when directors are not justified in excluding pupil from nearest school. Where school directors drew an imaginary line between two schoolhouses in their district, and the parent of a pupil in one of sai'd schools thereafter removed his residence to within a short distance of that school and within the territory allotted to it, his former residence being within the territory allotted by the directors to the other school, and the proofs in an action against said directors and the teacher for refusing to continue instruction to such pupil in said former school did not disclose any crowded condition of that school or any particular reason why it would be for the best interests of the district that said pupil should be removed to the other and distant school, or that said pupil had been guilty of any misconduct, held, that the directors were not justified in excluding the pupil from the school nearest him.


text:
    C. H. Burton and M. R. Sullivan, Appellees, v. Estate of Hugh McGeever, Appellant.
    1. Spendthrifts—when evidence as to voluntary signature to contract for division of property is inadmissible in action for attorneys' fees against conservator of husband. Where the conservator of an adjudged drunkard and spendthrift shortly after his appointment employed certain attorneys to file a bill to set aside a contract entered into between the ward and his wife shortly before he was adjudged a drunkard and spendthrift for a separation and a division between them of his property, on the ground that he was intoxicated at the time he executed said instrument, which bill was dismissed after the ward’s death and after a demurrer thereto filed by Ms wife as administratrix of his estate had been overruled, and thereafter said attorneys brought suit against the estate for solicitors’ fees in filing said bill, held that evidencé that the ward was not intoxicated when he signed said instrument, and that same was entered into by him without any fraud or circumvention on the part of his wife, was properly excluded, as it was not a question to be determined in said suit whether or not the contract or agreement could and would have been set aside, but whether said bill was filed in good faith to protect the property or rights of the ward by the conservator.
    2. Spendthrifts—what authority conservator has to bring suits to protect rights of ward. Under Rev. St. ch. 22, sec. 5" (J. & A. IT 885), a conservator of a drunkard and spendthrift has a right to bring a suit in chancery in good faith to protect the rights of his ward without first obtaining an order of record in the Probate Court, as his authority to bring such suit is given by the statute.
    3. Spendthrifts—what allowance should be granted to conservator bringing suit to protect interests of ward. If a conservator of a drunkard and spendthrift acts in good faith in bringing suit to protect the interests of his ward, he should be allowed an amount sufficient to pay any reasonable indebtedness incurred or amount expended in protecting such interests.
    4. Spendthrifts—when testimony of probate judge as to advising bringing of suit is admissible in suit against conservator for attorneys’ fees. In a suit by attorneys for fees for bringing suit at the instance of a conservator in the interests of his ward, a drunkard and spendthrift, testimony by the judge of the Probate Court where such conservator • was appointed that he advised the bringing of such suit is admissible for the purpose of showing good faith on the part of the conservator in employing said attorneys to bring said suit.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    J. B. Harris and Terry, G-ueltig & Powell, for appellant.
    D. H. Mudge, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This suit arises out of a claim for solicitors’ fees filed against the estate of Hugh McGeever, deceased, for the sum of $200, by appellees, attorneys at law, of Madison county, Illinois, for services in preparing and filing a bill in chancery for the conservator of said Hugh McGeever in his lifetime. On the trial in the Probate Court of said county, appellees were allowed $125 for their fees and in the Circuit Court, to which the case was appealed, there was a verdict and judgment for $100. From that judgment an appeal has been taken to this court by the executrix of the estate. The grounds relied on by appellant for reversal are that the conservator had no authority to bring the suit in chancery without an order of the Probate Court, and that the trial court erred in the admission and exclusion of evidence.

There are no controverted facts in the case. In April, 1913, Hugh McGeever and his wife, Katie Mc-Geever, after continued disagreements and a separation, entered into a written agreement for future separation, wherein, in connection with several other provisions, he deeded his wife certain real estate and she released her inchoate right of dower in other property belonging to him. Shortly after this agreement was recorded, to wit, on May 12, 1913, Hugh McGeever was adjudged a drunkard and a spendthrift and Julius Eosenburg was appointed his conservator by the Probate Court. Some two weeks later, appellees were employed by the conservator as solicitors to file a bill in chancery to- set aside the contract and agreement on the ground that his ward was so intoxicated at the time of the execution of the instrument that he did not know what he was doing. This bill was filed May 27, 1913, and summons was issued, to the following October term of said court of said county. About a month previous to the convening up the Circuit Court, McGeever died and his wife was appointed executrix of his last will and testament. She filed a demurrer to the bill in chancery, which was overruled, but the bill was subsequently dismissed. Appellant attempted to show on the trial of this cause that deceased was sober at the time he signed the agreement and that the contract was entered into without any fraud or circumvention on the part of the wife, but the court sustained an objection of appellees to this testimony, and it was not admitted. It was not a question to be determined in this case whether or not the contract and agreement could or would have been set aside, but whether the suit was commenced in good faith to protect the property or rights of the ward by the conservator. The court in this case had no right to investigate the question whether McG-eever was intoxicated or not at the time he entered into the agreement with his wife, and therefore the evidence on that subject was properly excluded.

The judge of the Probate Court was permitted to testify on the part of appellees, over the objection of appellant, that he had advised or instructed the conservator and one of the appellees to file the bill in chancery. Appellant contends that this testimony was improperly admitted for the reason that authority to the conservator to bring the suit must have been based upon an order of the Probate Court and the record must have been produced to show the order. Section 5, ch. 22 of our Revised Statutes (J. & A. 885), in relation to practice in courts of chancery, provides: “Suits in chancery may be commenced and prosecuted by infants, either by guardian or next friend, and by conservators on behalf of the persons they represent.” We are of opinion that under this statute a conservator has a right to bring suits in chancery in good faith to-protect the rights.of his ward; that the statute itself is sufficient to give the authority to bring the suit, and it is not necessary for the conservator to first obtain an order of record in the Probate Court before bringing the same. It is true that the conservator is under the general guidance and supervision of the Probate Court, which should hold him to the strictest accountability in the execution of his trust, and should carefully scrutinize his accounts in regard to the liabilities incurred or expenditures made. But the authority to bring a suit in chancery to protect his ward’s interests is given by the statute and, in so doing, he is acting under the statute. If he so acts in good faith he should be allowed an amount sufficient to pay any reasonable indebtedness incurred or amount expended in protecting the interests of his ward. While it was not necessary for the conservator in this case to have, produced in 'evidence the record of an order made by the County Court to permit him to file the bill in chancery in question, yet we think that the testimony of the county judge to the effect that he advised the bringing of the suit was admissible for the purpose of showing good faith on the part of the conservator, and the court did not err in admitting the same. When the estate passed from the hands of the conservator to the executrix it remained subject to the claim of appellees for services rendered the eonservator, and it was proper for the Probate Court to make a reasonable allowance for the same. There is no question raised here but that the amount allowed in the Circuit Court was reasonable and the judgment will be affirmed.

Judgment affirmed.


text:
    John Purcell, Administrator, Appellee, v. Charles H. Degenhardt, Appellant.
    1. Negligence, § 19

      —what does not constitute an attractive nuisance. A steam roller while going along a public street in charge of some person as driver is not an attractive nuisance, and the law applicable to 'attractive nuisances does not apply, in an action for damages for death caused by such roller, to a child playing thereon.
    2. Negligence, § 187*—when evidence is insufficient to show wantonness and wilfulness in driving over child with steam roller. Where, in an action for damages for the death of a six-year-old child, the evidence showed that the child ran from its home to the side of a steam roller which was coming down the street at a moderate speed driven by defendant’s servant, an experienced man in such work, and jumped upon the roller frame unseen by the driver because of obstruction of -his view by the machinery on the framework above the roller, and with nothing to attract his attention to such child, who then fell off under the roller and was killed, held that there was no proof that said servant wantonly and wilfully drove the roller, upon the child, or that he was guilty of such recklessness as would charge him with wilfulness.
    3. Juby, § 80*—when question on voir dire in action for death is improper. The question on voir dire in an action for damages on account of death whether the talesman was interested in any insurance or casualty company doing a liability business is objectionable as indicating to the jury that the case was really being defended by an insurance or casualty company and therefore that the nominal defendant was not interested, and such question should be avoided.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    O. E. Pope, for appellant.
    Williamson, Burroughs & Byder, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

John Purcell, as administrator of the estate of his son, James P. Purcell, who was six years old at the time of his death, brings this suit against appellant to (recover damages on account of the death of his intestate, which was shown to have occurred in the following manner: Appellant was a street contractor and on July 24, 1916, was paving an alley in the rear of appellee’s home. In doing this he was using a street roller, which weighed about five tons and had two rollers, one following behind the other. The back roller was movable in the frame, so that it could guide the machine and above it was the driver’s seat. The driver was Fred Grerdes, a man of experience in that line of work. About eighteen inches from the ground a heavy frame extended around the rollers and above them were an engine and a small boiler with a smokestack. At the side was a cast-iron tank for water and coal. These all rested on the frame and in some degree obstructed the view of the driver when looking forward. Appellant had been using the roller in the neighborhood for several weeks, and while it is shown that children were forbidden to get upon the frame and ride, it whs also shown they did ride upon it at times, it appearing that the children kept jumping on and being driven off by the driver. It also appeared that the deceased, child had been warned on two different occasions'to keep off the machine. Appellee lived on Sixth street about one hundred fifty feet from its intersection with Central avenue in Alton, Illinois, where the work was being done. About six o’clock on the evening of the day referred to, Grerdes was driving the engine northward on Central avenue towards Sixth street at a speed between a mile and a half to two miles an hour. As it reached the intersection of the streets, the boy ran down from his father’s home and jumped upon the front of the frame. He then jumped down and fell upon his hands and knees in front of the roller and, in attempting to crawl out, his legs were caught and crushed so that he died. Gerdes testified that he was looking forward, but did not know of the boy’s presence or of the injury until his attention was called to it by some one else.

The declaration contained ten counts, all, except the seventh, being based on the theory that the roller was an attractive nuisance. While in each of nine counts the facts were in some degree differently charged, the averment that the roller was an attractive nuisance was an essential element and became necessary of proof to warrant a recovery on any one of them. One of the principal instructions given for appellee also related to this subject and permitted the jury to determine whether or not the machinery in question was attractive to children of the age of deceased, as one of;? the principal grounds for a verdict in favor of appellee. The seventh count of the declaration charged wilfulness on the part of the driver of the steam roller. The jury found a verdict assessing plaintiff’s damages at $1,000, and judgment was rendered for that amount.

The first question to be determined by us from the proofs is whether or not the steam roller was an attractive nuisance, or at least whether that question was one for the jury to determine. Most all of the cases where the doctrine-of-atteactive-nuisance is recognized’ are where the thing causing the injury is not at the. time under the supervisionm£-the_Qwner or one in control thereof, as a pool with logs floating in it (City of Pekin v. McMahon, 154 Ill. 141); a piece of sidewalk floating in á pond alongside a street (Linnberg v. City of Rock Island, 157 Ill. App. 527), and premises where such machinery applies or constructions are alluring aHrinvitm^d™cEn3re57áñdW^Eere™those™mñIñtaining might be mjure(Twiule~pIaying with or around them. The "application m tHi”SthWaTlñásTseems tcHoe more particularly made to such places, machines and applh jmces as are po| at the time ol IhA'iniury heinsLJised- or supervised by those sought to be charged with neg: ligehc'e.""'SiicE’’is “ characteristically true of railroad turntables, from whence the name of the “turntable cases ’ ’ frequently applied to cases' of this class is derived, for they are generally left without any one in charge of them when not in active use. In Prickett v. Pardridge, 189 Ill. App. 307 [9 N. C. C. A. 76], it is aptly said: “In Illinois if the owner or occupant of premises leaves a dangerous machine or thing exposed under such conditions that it may reasonably be antici3pated that children of such tender age as to be inap able of exercising proper care for their safety may, their own instincts, be attracted to the dangerous thing and thereby injured, he will be liable for such injury. ” On the contrary, machines and vehicles in actual use at the time of the injury are not ordinarily recognized by our courts as attractive nuisances. In Donaldson v. Spring Valley Coal Co., 175 Ill. App. 224, the court states: “No case has been called to our attention where the doctrine of attractive nuisance has ever been applied to any machinery on premises in actual use by the owner. To employ the language used by counsel for appellant, ‘it has been restricted to things not in use, to things at rest, ’ ” and this position is supported by many earlier cases: Chicago West Division Ry. Co. v. Hair, 57 Ill. App. 587; Scott v. Peabody Coal Co., 153 Ill. App. 103; Putney v. Keith, 98 Ill. App. 285; Newman v. Barber Asphalt Paving Co., 190 Ill. App. 636; Chicago, B. & Q. R. Co. v. Stumps, 55 Ill. 367. Conforming our opinion to the Illinois doctrine above expressed, as being the proper rule to be applied in the present case, we conclude that the steam roller, while going along the public street in charge of appellant’s servant, was not an attractive nuisance, and that the law applicable to attractive nuisances does apply.

We also find that there was no proof that the servant of appellant wantonly and wilfully drove the roller upon the child, as charged in the seventh count of the declaration, or that he was guilty of such recklessness as would charge him with wilfulness. He was driving the roller along the street at a moderate speed and the child was not seen by Mm coming up to the roller from the side, or upon the same, as his view was obscured by the machinery .on the framework above the roller. No other children were at or about the roller at the time and there was notMng to attract the attention of the driver to the child. In the case of Donaldson v. Sprmg Valley Coal Co., supra, where the injury was likewise to a six-year-old child, it was said: “The general rule is that the owner or occupier of premises owes no duty to a trespasser except to do him no wilful or wanton injury. 3 Elliott on Railroads (2nd Ed.), sec. 1253, note 49. It is not under greater obligation to anticipate the presence of children upon its premises than of adults. Chicago & W. I. R. Co. v. Roath, 35 Ill. App. 349. The tender years of appellee added nothing to the duty of appellant.” This rule applies with the same force to a piece of macMnery that it does to dangerous premises. It should be borne in mind that the accident happened by reason of the child getting on the macMnery and falling off and not by its mere presence in the street.

Appellant complains that certain jurors when examined on their voir dire were asked questions which would indicate to the jury that the case was really being defended by an insurance or casualty company, and that therefore the nominal defendant was not interested. The question asked was whether or not the juror, to whom it was put, was interested in any insurance or casualty company doing liability business. One of the jurors asked this question, a talesman, was a grocery man living in the village of Godfrey, Illinois, and another was a farmer. No reason appears why these questions were asked these particular prospective jurors, and there is some ground for believing that the claim of appellant is well founded, and this objectional feature should be avoided if there should be another trial of the case. Other objections raised by appellant do not appear to us to' need comment. For the reasons above stated, the judgment of the court below will be reversed and the cause remanded.

Reversed and remcmded.


text:
    Henry Hawk, Appellee, v. Farmers’ Serum Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gh-lham, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by Henry Hawk, plaintiff, against the Farmers’ Serum Company, defendant, to recover for damage to growing crops due to trespassing hogs belonging to defendant. From a judgment for plaintiff for six hundred dollars and costs, defendant appeals.
    C. E. Pope, for appellant.
    M. B. Sullivan, for appellee. „

      See Illinois Notes Digest, Yds, XI to XY, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Abstract of the Decision.

1. Animals, § 46 —When damages for injury to crops by hogs are not excessive. In an action for damages for injury to plaintiff’s crops by defendant’s hogs in an adjoining field getting into plaintiff’s fields and destroying a part of said crops therein, held, that the amount of damages accruing to the plaintiff was a question of fact to be determined by the jury from the evidence, and that a verdict for six hundred dollars was sustained by the evidence.

2. Damages, § 172*—what testimony is proper to show previous estimate of amount of loss. In an action for damages, a question asked of the plaintiff whether he had instituted a former suit against another person for the same loss in which the damages were laid at a less sum than in the suit on trial is proper as tending to show his estimate of the amount of his loss at that time.

3. Witnesses, § 181*—When refusal of repetition of proper question is not error. It is not error to refuse a repetition of a proper question which has already been asked and answered.


author: Mr. Justice Boggs

text:
    Max Rosenfeld, Plaintiff in Error, v. John B. Ehrhart, Defendant in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action of replevin by Max Rosenfeld, plaintiff, against John B. Ehrhart, defendant, to recover certain merchandise, fixtures, etc., used in connection with the grocery store previously operated by plaintiff. From a finding and judgment in favor of defendant, plaintiff brings error.
    Terry, Gueltig & Powell, for plaintiff in error.

      Warnook, Williamson & Burroughs, for defendant in error.
    Abstract of the Decision.
    1. Contracts, § 113

      —When party is estopped to claim intoxica» tion at time of signing. The contention by a party to a contract that he was intoxicated and did not know what he was signing when he executed same cannot avail him when on the next day after executing the contract he voluntarily took steps to carry out its provisions.
    2. Appeal and error, § 1414*—when finding of trial judge will not be disturbed. Where a jury has been waived, the finding of the trial judge is entitled to the same weight as the finding of a jury on the controverted questions of fact, and unless such finding is against the manifest weight of the evidence it should not be' disturbed.
    3. Sales, § 210*—when evidence is sufficient to show delivery of personalty. On an issue as to the sale and delivery of a stock of goods and furniture in a store, horses, etc., held that the finding by the court trying the case without a jury that the property was in fact delivered was fully warranted by the evidence.
    4. Sales, § 182*—when bill of sale is unnecessary. A bill of sale is not necessary to pass the title to personal property which is sold and possession delivered.
    5. Sales, § 180*—what is sufficient evidence of intention to effect a sale of personalty. Actual delivery of possession of personal property is usually of itself sufficient evidence of intention to effect a sale thereof.
    6. Appeal and error, § 1713*—when assignment of error is waived. An assignment of error which is not argued in the brief is waived, under the rules of this court.
    7. Appeal and error, § 1466*—when judgment will not be disturbed because of the admission of incompetent evidence. Even though the trial court may have admitted incompetent evidence on the hearing, yet if there be sufficient competent evidence in the record to sustain the court’s finding and judgment, the judgment should not be disturbed on that account.

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

   Mr. Justice Boggs

delivered the opinion of the court.


text:
    L. C. Perks and Thomas Higgins, trading as Perks & Higgins, Appellants, v. L. F. Tippett et al., Appellees.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Bill in aid of execution by L. C. Perks and Thomas Higgins, partners, trading as Perks & Higgins, plaintiffs, against L. F. Tippett and others, defendants, to enforce a judgment against certain real estate of defendants. From a judgment dismissing plaintiffs’ bill for want of equity, plaintiffs appeal.
    Charles L. Rice, for appellants.
    Reed Green, for appellees.
    Abstract of the Decision.
    1. Execution—what is competent evidence of issuance of. The execution docket required under the law to be kept by the circuit clerk of a county is competent evidence tending to show whether or not an execution was issued.
    2. Execution—when evidence is sufficient to show that execution was not issued. Where a judgment creditor, before a justice of the peace, testified, seven years after filing a transcript of said judgment in the office of the circuit clerk of the county, that an execution was immediately issued by the deputy clerk in said office and delivered immediately thereafter to the sheriff of the county, and the deputy clerk corroborated such testimony, but the sheriff testified that no execution upon such judgment had ever been delivered to him, and both the records kept by him as sheriff and the execution docket kept by said circuit clerk showed no such execution, held that a finding that no such execution had been issued would not be disturbed.

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

   Mr. Justice Boggs

delivered the opinion of the court.

3. Appeal and error, § 1399 —when confirmed findings of master will not he disturbed. Where the evidence is conflicting and the chancellor has confirmed the findings of the master, the decree of the court will not be disturbed unless it is clearly and manifestly against the weight of the evidence.


text:
    James W. Bluff, Plaintiff in Error, v. Peter Kohl, Defendant in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of Hamilton county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by James W. Bluff, plaintiff, against Peter Kohl, defendant. From a judgment of the Circuit Court dismissing an appeal from a justice of the peace for want of prosecution and awarding a writ of procedendo, plaintiff brings error.
    J. Wilson Jones, for plaintiff in error.
    Joshua S. Sneed, for defendant in error.

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

   Mr. Justice Boggs

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and ebbob, § 800 —what bill of exceptions must contain. In the absence of a bill of exceptions contained in the record showing a motion for a continuance of the case in the trial court, and affidavit in support thereof, the disallowance of which motion is assigned as error, such assignment cannot be considered, notwithstanding the attorney for the plaintiff in error filed with the transcript of the record in the Appellate Court his affidavit that such motion had been filed, as such affidavit is no part of the transcript.

2. Justices of the peace, § 226*—when dismissal of appeal for want of prosecution is proper. Where the record before the Appellate Court contained no bill of exceptions and showed only the order of the Circuit Court dismissing an appeal from a justice of the peace for want of prosecution, held that such dismissal was proper.

3. Appeal and ebbob—when case affirmed for failure to file abstract. Failure to file an abstract of the record in a case taken on appeal to the Appellate Court warrants affirmance of the case without considering it on its merits.


text:
    George W. Porter et al., Appellants, v. Citizens’ National Bank of Evansville, Indiana, Appellee.
    1. Assistance, wbit of, § 5*—when judgment creditor redeem~ ing from foreclosure sale and purchasing at resale entitled to. A judgment creditor who redeems from a foreclosure sale, procures a resale of the premises and becomes the purchaser thereof on such resale, succeeds to the rights in the premises involved of the purchaser on the original sale under his certificate of purchase, and is entitled to a writ of assistance from the court or from a judge in vacation to place him in possession of such premises.
    2. Mobtgages, § 602*—what' are rights of purchasers at foreclosure sale. The purchaser at a foreclosure sale of mortgaged premises has no right or interest therein .other than the right to receive the amount due him where the original mortgagor or some judgment creditor sees fit to redeem, or the right in the event no redemption is made to receive a deed for such premises.

      3. Mortgages, § 703

      —when redemption by judgment creditor is not void. Where a judgment creditor redeemed from a foreclosure sale and at a resale of the premises became the purchaser thereof at a price which, through an inadvertent mistake of the sheriff, was less than the amount due, and also did not include taxes paid by the holder of the certificate of purchase on the original sale, which price was accepted by the sheriff, who thereupon issued and filed his deed on such redemption, and thereafter said judgment creditor, upon learning of said mistakes, tendered an amount sufficient to ■ cover the deficiency, held that the redemption by such creditor should not be held void on account of such deficiency.
    4. Mortgages, § 691*—when action of sheriff in issuing certificate of redemption. is valid. The statute makes the sheriff the proper officer through whom to redeem where a resale of premises sold on foreclosure is sought under an execution in his hands, and, unless some fraud is shown, his action in issuing a certificate of redemption should be held valid and binding.
    5. Mortgages, § 681*—how statute relative to redemption from foreclosure sales should be construed. The statutes covering redemptions from judgment or foreclosure sales (J. & A. j[f 6764-6770) should be liberally construed in order that the debtor’s property may reach as far as possible in satisfaction of his debts.
    6. Judicial sales, § 13*—when sheriff should sell at amount bid for property. Under the statutes (J. & A. Iflf 6764-6770), a redeeming creditor bidding at a resale of the premises is held to have made a bid thereon of an amount sufficient to cover the redemption money and interest, together with costs of making the resale, and the sheriff, if no larger amount is bid, should sell at said amount and at once make deed to the purchaser, and he would have no right to accept a less bid.
    7. Assistance, writ of—who may not object that bidder at foreclosure sale is not accepted highest bidder. A bidder at a sheriff’s sale who never paid or tendered to the sheriff the amount of his bid and who is not a party to a proceeding for a writ of assistance on behalf of another bidder at such sale, to whom the property was sold and deed issued by the sheriff, is not in a position to object in such proceeding, nor can the parties defendant to such proceeding object that said first-mentioned bidder was the accepted highest bidder.
    8. Assistance, writ of—what constitutes a prima facie case. In a proceeding for a writ of assistance, held, that the sheriff’s deed issued on a judicial sale, together with a stipulation of facts introduced in evidence, made a prima facie ease, the stipulation showing that the purchaser to whom said deed was issued had paid or tendered the proper redemption money and that no higher bid had been made and perfected by payment of the amount thereof.
    Appeal from the Circuit Court of Edwards county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    H. J. & J. H. Strawn, for appellants.
    P. C. Walters and Allen E. Walker, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

This appeal is prosecuted by appellants from. an order entered in vacation by the Hon. J. C. Eagleton, one of the judges of the Second Judicial circuit (in which circuit Edwards county is located), awarding a writ of assistance to appellee for the purpose of putting it in possession of the premises involved in this proceeding. The appeal was originally taken to the Supreme Court on the theory that a freehold was involved, but said court held that it had no jurisdiction to proceed and certified the cause to this court.

The facts were stipulated by the parties and are as follows: “The Corn Belt Building and Loan Association foreclosed their mortgage on the property and became the purchaser at the master’s sale, February 14, 1914, for $2,550, the amount of their mortgage, interest and costs. On April 21, 1915, the Citizens’ National Bank, a judgment creditor of Porter, sought to redeem from said sale and deposited with the sheriff the sum of $2,721.25, which it later developed was $10 less than the amount of the purchase with interest up to the date of the deposit. The mistake of $10 being occasioned by a mistake in addition in computing the interest. The Com Belt Building and Loan Association, paid the 1913 taxes, and the bank paid the 1914 taxes. The loan association had deposited their tax receipt with the master. No money for the repayment of these taxes was deposited with the sheriff. On the date of the deposit with the sheriff, he issued to the bank a certificate of redemption and advertised the property for sale under the execution of the bank. On the date advertised, he offered the property for sale and was asked by S. E. Quindry, a bidder, what bid he had on the property. He answered that he had a bid of $2,721.25. S. E. Quindry then bid the sum of $2,725. At the time the bid of S. E. Quindry was made, P. C. Walters, one of the attorneys for the bank, announced that his bid was not sufficient. Quindry claims that he did not hear this. It happened that the amount the sheriff stated as bid was the amount deposited by the bank. After crying the sale, the sheriff struck off the property to id. E. Quindry thinking his bid was greater than that of the bank. S. E. Quindry asked until six o’clock to raise the money and it is claimed by him that the sheriff gave him that time. It is denied by the bank that he had any right to give him the time. Mr. Quin-dry never before or after six o’clock "tendered the sheriff any money for the property. The sheriff after investigating the facts and the law and upon the advice of the State’s Attorney, a little before five o’clock of the same evening issued and delivered a deed to the property to the Citizens’ National Bank, which was filed for record in the recorder’s office at five o’clock p. m. of the same day. Mr. Thornton, the secretary of the loan association, came to Albion the evening before the date advertised for the sale and was told by Allen E. Walker, one of the attorneys for the bank, the same evening, that if they had paid any taxes or any other money on this property in the way of expenses that the bank did not then know about, they would be paid the next day whatever the amount might be upon satisfactory proof being had that it had been paid out. The day of the sale, the secretary.of the loan association left town and said to the livery man that he did not want to get back until after the banks had closed so that the sheriff could not tender him the amount in cash and he would refuse to accept a check. He did not return until night and could not be found by the sheriff then. The following morning, May 15, 1915, Mr. Thornton and Mr. Quindry went to Bone Gap where the master resides, got the master out of bed at an early hour in the morning and demanded a deed. The master refused until he had made an investigation. He came back to Albion with them and upon investigation found a certificate of redemption and deed to the bank of record and refused to make a deed. This same morning the sheriff tendered the loan association the sum of $2,721.25, and Allen E. Walker, one of the attorneys for the bank, tendered the secretary of the association $200 in cash to cover any other amount due the association. Both amounts were refused by the association. The Corn Belt Building and Loan Association immediately, the same day, filed a bill in chancery setting up what purported to be the facts, making the Citizens’ National Bank, defendant, and asked that the deed to the bank be set aside and one executed and delivered to the loan association by the master, who is also made defendant. The suit was filed to the November term, 1915, of our court and is still pending.

“That George W. Porter and Susan J. McClure claim to hold possession of the property under the Corn Belt Building and Loan Association.”

Upon the hearing on said petition and said stipulation of facts, the judge before whom said matter was heard entered an order as above- set forth granting said writ. It is insisted by appellants for a reversal of said cause that the judge entering said order was without jurisdiction so to do. It is conceded that a circuit judge may hear a petition of this character in vacation, but that this petition does not come within said rule, first, because appellee was not a party to said foreclosure proceeding; second, because it is claimed appellants have acquired some new interest in said premises since the rendition of the foreclosure decree through some arrangement or agreement with the Corn Belt Building and Loan Association, complainant in said proceeding; and third, because in mailing its deposit of redemption so given the bank, it lacked $10 of the amount and also failed to include the taxes of 1913 paid by the Corn Belt Building and Loan Association under its certificate of purchase.

So far as we have been able to ascertain, the Supreme Court or this court has never passed on the specific question as to whether or not parties who redeem from a foreclosure sale and who cause said premises to be resold and become the purchaser, thereof and receive a deed therefor are entitled under the law to a writ of assistance to place them in possession thereof. We think, however, that the reasoning of the Supreme Court and this court in construing the various provisions of the statute with reference to redeeming from foreclosure sales by judgment creditors, and as to their rights in the property when redeemed and resold, would, as to a judgment creditor who had reedemed from foreclosure sale and had procured a resale of the premises and become a purchaser thereof, entitle him to a writ of assistance placing him in possession thereof. Keithley v. Interstate Bank & Trust Co., 154 Ill. App. 443; Herdman v. Cooper, 138 Ill. 583; Smith, v. Mace, 137 Ill. 68; Butler v. Brown, 205 Ill. 609.

In Herdman v. Cooper, 138 Ill., at page 587, the court says: “By the redemption, Johnson took the place of Watson with respect to the property, and what is true in this respect of Johnson is equally true of McLaughlin, by whose redemption from the sale to Johnson he was put in the place of Johnson as respects the property redeemed. If the redemption had simply obliterated the prior sale, then, of course, by Johnson’s redemption the Herdmans would have been restored to their homestead rights. But the redemption does not obliterate the prior sale—it simply substitutes the party redeeming for the original purchaser, and gives to the party redeeming all that the original purchaser had, and so, necessarily, all rights of homestead in the property which is the subject of redemption; and so we expressly ruled in Smith v. Mace, 137 Ill. 68.” In other words, a judgment creditor who redeems from a foreclosure sale and who causes a resale of said premises and becomes a purchaser thereof on such resale succeeds to all the rights in said property held by the original purchaser. That being the law, appellee under the record in this case would succeed to the rights in the premises involved of the Corn Belt Building and Loan Association under its certificate of purchase, and would be entitled to assistance from the courts or from a judge in vacation to enforce its right to the possession of said premises, the same as the Com Belt Building and Loan Association could have done had said redemption not been made, and had it acquired from the master in chancery a deed to the premises involved. We are, therefore, inclined to the opinion that on this proposition the judge did not err in holding that appellee was entitled to the benefit of said writ.

Appellants’ next contention is that after the foreclosure decree and the sale of said premises, the Com Belt Building and Loan Association acquired some additional rights in said property from said complainants, and, that, that being true, that under the holding of the Supreme and Appellate Courts, appellee would not be entitled to a writ of assistance for the reason that said judge in vacation would not have the right to adjudicate such interests. Vahle v. Brackenseik, 145 Ill. 231. We are of the opinion, however, that the Corn Belt Building and Loan Association as the purchaser of said premises at the master’s sale had no right or interest in said premises, other than the right to receive the amount due it, where the original mortgagor or some judgment creditor saw fit to redeem, or the right, in the event no redemption was made, as provided by statute, to receive a deed therefor. This, in effect, is the holding of the Supreme Court in Strauss v. Tuckhorn, 200 Ill. 75. It follows then as a logical conclusion that the Com Belt Building & Loan Association could confer no greater right on appellants than it had itself, and upon redemption of said foreclosure suit its interest in said premises ceased and consequently any interest it may have undertaken to confer on appellants.

It is next contended by appellants that no redemption was made by appellee from said foreclosure suit for the reason that it failed to pay enough money by $10 to the sheriff to cover the principal and interest owing to the Com Belt Building and Loan Association, the holder of the certificate of purchase, under the master’s sale, and for the further reason that it did not include about $30 in taxes for the year 1913, paid by said association as the holder of said certificate. Under the stipulation filed we can draw no other conclusion but that appellee and the sheriff inadvertently made the mistake of $10 in computing the principal and interest necessary to redeem from said foreclosure sale, and that the redemption money being delivered to the sheriff, the matter of taxes paid by said building and loan association was not brought to appellee’s attention. We are, therefore, of the opinion that inasmuch as the sheriff accepted said money and issued the certificate of redemption and filed the same with the recorder of deeds as provided by statute, and inasmuch as appellee upon having the mistake brought to its attention advised the secretary of the building and loan association and its attorney that it was ready to pay any balance that might be owing to said building and loan association, and, in fact, tendered $200 to cover any such deficiency, it would be all that would be required and said redemption should not be held void on that account.

The statute makes the sheriff the proper officer through whom to redeem where a resale of the premises is sought under an execution in his hands, and, unless some fraud is shown, the action of the sheriff in issuing a certificate of redemption should be held valid and binding.

The Supreme Court has frequently held that the statute covering redemptions from judgment or foreclosure sales should be liberally construed in order that the debtor’s property may reach as far as possible in satisfaction of his debts. Schuck v. Gerlach, 101 Ill. 338; Whitehead v. Hall, 148 Ill. 253; Strause v. Dutch, 250 Ill. 326; Meier v. Hilton, 257 Ill. 174.

It is not contended by appellants that appellee did not offer to make up any deficit in the amount of funds held by the sheriff necessary to fully reimburse the Com Belt Building and Loan Association for the amount owing to it on its certificate of purchase including said taxes. Under the authority of Strauss v. Tuckhorn, 200 Ill. 75, all said association was entitled to was to receive the amount owing to it for principal, interest, and taxes as purchaser at said foreclosure sale. If said association had said amount tendered it within the time specified in the statute, it has no right to complain.

It is next contended by appellants that no valid sale of said premises was made by the sheriff to appellee; that said premises were struck off to S. E. Quindry on his bid of $2,725. The stipulation of facts disclose that the sheriff had failed to add the amount of interest accrued on the redemption money from the date the same was received by him to the day of sale, and that when S. E. Quindry inquired of him as to the amount bid on said premises he gave the amount deposited with him instead of the amount necessary to redeem with the interest thereon from the date the redemption money was deposited. Under the statute the redemption creditor is held to have made a bid on the premises of an amount sufficient to cover the redemption money and interest, together with costs of making the resale, and if no larger amount is bid, the officer shall sell said premises at said amount and shall at once make a deed to the purchaser therefor. As a matter of fact, the bid of S. E. Quindry was not sufficient to cover the amount necessary to redeem with interest and the costs of said resale, so the sheriff would have had no right to accept said bid. The stipulation of facts further disclose that Quindry never paid or tendered to said sheriff the amount of the bid made by him, and as he is not a party to this proceeding he has no right to complain, neither have appellants any right to make this complaint for him. In other words, appellants are not in a position to urge this objection. The judge before whom said matter was pending held on the hearing that the presentation of appellee’s deed from said sheriff, together with the stipulation of facts introduced in evidence, made a prima facie case, and we are inclined to the opinion that he was correct in his holding. In Kerr v. Brawley, 193 Ill. 207, the Supreme Court says: ‘1 This is a petition for a writ of assistance. This writ is a summary proceeding. * * * Its object is to put a person who has purchased at judicial sale under a decree in chancery, into possession of the premises. * * * It will only issue against a party to the suit, or one who has come into possession pen,dente lite. (Gilcreest v. Magill, 37 Ill. 300.) The interests of other persons will not be adjudicated in this summary manner. (Paine v. Root, 121 Ill. 77.) ” Section 33, ch. 77, Hurd’s Revised Statutes (J. & A. ¶ 6780), provides: “Any deed which has been heretofore, or which may hereafter he so executed, or a certified copy of the record thereof, shall be prima facie evidence that the provisions of the law in relation to the sale of the property for which it is or may be given were complied with; and in case of the loss or destruction of the record of the judgment or decree, or of the execution or levy thereon, such deed or certified copy of the record thereof shall be prima facie evidence of the recovery and existence of the judgment or decree and issuing and levy of the execution as therein recited.”

We are therefore of the opinion, after a careful examination of the record, that no reversible error was committed in issuing said order awarding the writ of assistance to appellee, and said judgment will be affirmed.

Judgment affirmed.