text:
    George V. B. Weeks, Appellee, v. J. L. Jones, Appellant.
    Gen. No. 6,204.
    1. Attorney and client, § 134

      —when evidence as to good character of attorney incompetent in action for fees. On the trial of an action of assumpsit for attorney’s fees in the Circuit Court on appeal from the Justice’s Court, testimony that the plaintiff’s reputation for honesty and fair dealing was good, held incompetent, even though remarks attacking the plaintiff’s reputation in that regard were made by the defendant’s attorney in his opening statement, since such remarks are no part of the pleadings in such an action.
    2. Appeal and error, § 546*—when evidence objected to and preserved for review considered on appeal. Where admission of testimony is properly objected to and preserved for review, the ruling will be passed upon on appeal, although similar testimony is subsequently introduced without objection.
    3. Instructions, § 153*—when refusal to modify requested instructions not error. A refusal of the trial court to modify bad requested instructions and give them as modified is not error.
    Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed February 8, 1916.
    I.I. Hanna, for appellant.
    George V. B. Weeks, pro se; B. D. Mills, of counsel, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Appellee, George V. B. Weeks, a lawyer, sued appellant, J. L. J ones, before a justice of the peace for attorney’s fees claimed to have been earned in his service. A trial in the Circuit Court on appeal resulted in a verdict and judgment for the plaintiff for $73. The defendant brings the record here for review. The evidence is conflicting, the conclusion to be drawn from the testimony largely depending upon which of the parties to the action is to be believed as a witness in statements where they directly contradict each other. We express no opinion as to the weight of the testimony. The plaintiff introduced as witnesses three lawyers. The first testified over the objection of the defendant that the plaintiff’s “reputation here at this bar for honesty and fair dealing is good.” The second that the plaintiff’s “reputation is good in the community in which he lives for honesty and fair dealing.” The third testified without objection that the plaintiff’s “reputation in this community in the practice of his profession, as a reputable citizen, and a member of the bar for honesty and fair dealing is good.” There can be no doubt that this testimony was incompetent. That the character of a party to a suit in assumpsit is not an issue hardly needs the citation of authority, but see Greenleaf on Evidence (15th Ed.) vol. 1, sec. 55. Appellee tries to sustain this ruling of the court by the statement that this is a justice proceeding, with no written pleadings; that we must assume there were . oral pleadings, and as they have not been preserved in the bill of exceptions we should infer that there was some oral pleading justifying this evidence. The record shows that the evidence was offered because of the opening statement of counsel for defendant, but does not show what that statement was. Appellee’s counsel in his brief says that appellant in his opening statement of the case charged appellee with being dishonest and a shyster attorney of no standing in the community, and therefore this testimony was competent.

■ Section 19 of our Justice Act (J. & A. 6915) provides that “the justice shall, at the request of either party made before the trial shall have been entered upon, require the other to exhibit his account or state the nature of his demand or set-off in writing, and upon the trial may preclude the party failing to do so from giving evidence of the same or such part thereof as shall not have been exhibited or stated.” Aside from this statute the law practically is that all proper pleadings are considered in, and any evidence should be received that would be admissible under proper pleadings if the case had been begun in a court of record. The statement suggested by the statute is usually not found in records presented here, and we assume in actual practice it is often not made. The statute only requires it on the request of the other party. The opening speech of counsel made on the trial is in no sense a pleading. It would lead to absurd results to ■ treat every statement so made by counsel as presenting an issue on which proof could be introduced. We cannot presume that statements not shown in the record were made, and cannot imagine pleading proper or improper that would permit a court to stop in the trial of an ordinary assumpsit suit to hear evidence pro and con on the reputation of one of the parties to the action. After this character of testimony had been introduced over objection by two witnesses, the defendant permitted the third witness to testify without objection, but the question was nevertheless saved for our review (Anglo-American Packing & Provision Co. v. Baier, 20 Ill. App. 376; Aetna Life Ins. Co. v. Paul, 23 Ill. App. 611; Taylor v. Pegram, 151 Ill. 106); though the rule would be different if the testimony had been first admitted without objection and later testimony to the same effect objected to. People v. Nall, 242 Ill. 284.

We find no other substantial error in .the record. Counsel for appellant argues that the court erred in not modifying, and giving as modified, a bad instruction offered by him. It is not the duty of the court to amend or modify erroneous instructions, although he can do so if he sees fit. Rolfe v. Rich, 149 Ill. 436. The testimony of the three lawyers as to plaintiff’s reputation above referred to must be presumed to have had weight in the minds of the j'ury in determining their verdict, and for that reason the j'udgment is reversed and the cause remanded.

Reversed, and remanded.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    City of Peoria, Appellee, v. Postal Telegraph-Cable Company, Appellant.
    Gen. No. 6,207.
    1. Licenses, § 18

      —when evidence as to amount of business done by licensee admissible on question of reasonableness of fee. In a nonjury action by a city to recover license fees for maintenance of telegraph poles in streets, held that evidence of the amount of business done by the defendant company should have been admitted on the question of reasonableness of the fee.
    2. Appeal and ebrob, § 1491*—when exclusion of evidence as to cost of supervision of telegraph poles in action by city against telegraph company for license fees not reversible error. In a non-jury action by a city to recover license fees for maintenance of telegraph poles in" streets, held that it was error, though not reversible error, to exclude evidence of the cost of supervision of such poles by the city.
    3. Licenses, § 18*—when license fee imposed on telegraph company not unreasonable. An annual license fee of $1 per pole for poles maintained by a telegraph company in streets and, alleys, held not unreasonable, whether such fee be considered as such or as rental, even though it were shown that the city incurred no expense in inspecting such poles except through its proper officers looking after all objects that might be so located.
    4. Licenses, § 1

      —when annual fee for maintenance of telegraph poles constitutes license fee. An annual fee imposed by ordinance for maintenance of telegraph poles in city streets and alleys, held a license fee and not rental.
    5. Licenses, § 5*—when city has power to impose reasonable license fee for maintenance of telegraph poles. A city may, by ordinance, impose a reasonable annual license fee for maintenance of telegraph poles in streets and alleys, irrespective of whether or not it owns the fee of such streets and alleys.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehatjs, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Stevens, Miller & Elliott, for appellant; William W. Cook, of counsel.
    Richard H. Radley, for appellee. .

      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 Carnes

delivered the opinion of the court.

This is an appeal from a judgment of $242 for the plaintiff in a trial by the court without a jury of an action of debt brought by appellee, City of Peoria, against Postal Telegraph-Cable Company, the appellant, under an ordinance of the city, the section of which material to the consideration here reading:

“Section 1. That there shall be paid annually into the City Treasury a license fee of One Dollar ($1.00) for each post used for the support of telegraph wires and which occupies any portion of any public street, alley or sidewalk in the City of Peoria. The said sum shall be paid by the person or persons, or the corporation or corporations owning, using or occupying any such poles for the support of telegraph wires; and all persons or corporations so occupying any such pole shall be jointly and severally liable to the City of Peoria for the payment of such license fee.”

The case is in many respects like that of City of Springfield v. Postal Tel.-Cable Co., 164 Ill. App. 276, and 253 Ill. 346. In that case the ordinance in question expressly provided that the charge was made “as a remuneration to the said city for the use of the portion or portions of the street, alley or sidewalk which said pole or post may occupy.” The right of the city to impose a reasonable charge in the nature of a rental for the exclusive use of the parts of the street occupied by the poles was affirmed. It was also said by the Supreme Court that similar charges may be imposed, not by way of rental, but in the exercise of police power in the nature of a license fee; but the Supreme Court held in that case that it was not a charge in the nature of a license fee but was a charge in the nature of a rental which the telegraph company was required to pay as a reasonable compensation for the use of the part of the streets and alleys occupied by the poles. Substantially the same defense is interposed in this case as in that of the acceptance by the defendant of the benefit of the Act of Congress of 1886 and subsequent acts; that the defendant was engaged in interstate commerce, and that the ordinance was an unlawful interference with interstate commerce and a tax levied upon one of the instrumentalities employed by the United' States Government, with the other matters of defense as stated in the opinion of the Appellate Court in that case. If the ordinance in the present case is to be regarded as a rental ordinance, the Springfield case, supra, is conclusive that the defense grounded on Federal statutes is not available. If it is to be regarded as a license ordinance, the cases of Western Union Tel. Co. v. New Hope Borough, 187 U. S. 419, and Atlantic & Pacific Tel. Co. v. City of Philadelphia, 190 U. S. 160, are authority to the same effect. But whether it be regarded as a rental or license ordinance, it was a material question in this case whether it was reasonable. It was held by the Supreme Court in the Springfield case, supra, that such ordinances are prima facie reasonable, and the burden of proof is upon those who assert the contrary. And it was held in the consideration of a similar rental ordinance in St. Louis v. Western Union Tel. Co., 148 U. S. 92, that a reasonable charge would differ in different counties and locations but that it does not lie exclusively in the city’s power to determine what a reasonable charge is; that the inquiry must be open to the courts and must depend largely upon matters not apparent upon the face of the ordinance, but existing, only in the actual state of affairs of the city. And in consideration of a similar license ordinance the court held in Western Union Tel. Co. v. New Hope Borough, supra, that the ordinance could not be declared void as unreasonable unless the unreasonableness was so clearly apparent as to demonstrate an abuse of discretion on the part of the city, and suggested that it was the duty of the city to see that the poles were safe and properly maintained and that a liability against it existed if a citizen should be injured in person or property by reason of a neglect of such duty, therefore the measure of reasonableness of the charge should not be confined to the expense of supervising the defendant’s work in the street. In Atlantic & Pacific Tel. Co. v. City of Philadelphia, supra, the ordinance was regarded as clearly a license as distinguished from a rental ordinance, and it was held proper for the enforcement of local governmental supervision; but it was said that the charge is authorized only in support of police supervision and. the expense . of such supervision determines the amount of the charge, and if it were possible to prove in advance the exact cost, that would be the limit of the tax. But as this is ordinarily impossible, the municipality is at liberty to make the charge large enough to cover any reasonably anticipated expense. The question of the reasonableness of the charge was held to be one of fact for the jury to determine, and the judgment was reversed and the cause remanded because the trial court had refused to submit that question to the jury. The court did not conclude that the evidence showed the charge unreasonable, but only held that it was a question for the jury, and the trial court erred in not so treating it.

Appellant offered to prove the income and expense and charges of the defendant company for the year ending June 30, 1913, with the statement that the defendant wished to supplement the testimony by that of its Peoria, Illinois, manager and other testimony; offered to prove the receipts of the Peoria office, and the expense of operating and maintaining the Peoria office; that the defendant had paid the State tax; and asked a witness if there was any inspection by the City of Peoria of poles carrying telegraph wires different from inspection made of poles carrying other wires, and if any expense was incurred by the City of Peoria with reference to inspection of poles carrying telegraph wires in the year in question, and if the City of Peoria during the time in question had any employee employed for the purpose of making inspection of of poles which carried telegraph wires, and if there were carried on the poles in question wires of other companies. Objections to all these questions but the last were sustained on the ground that they were immaterial. The last question was permitted to be answered subject to the objection, and the witness replied that some of them did carry other wires.

We do not see how the inquiry as to how much business the defendant did in general or in detail could have much, if any, bearing on the question of the reasonableness of the ordinance. Still, as the trial was before the court without a jury, it would have been better to admit the testimony. But we think it clear under the authority of the cases before referred to that the inquiry as to cost of supervision was material and that it was error to exclude that consideration. But assuming that the answer would have been that the city incurred no expense in supervising the defendant’s work in the streets except through its proper officer looking after any and all objects that might be located there, we are still of the opinion that the court would not have been justified in holding the ordinance unreasonable and void. It is not clear from the authorities examined by us just what the scope of inquiry should be on the question of the reasonableness of such an ordinance, but if each of the questions to which the court sustained objections had been answered in manner most favorable to the defendant, the court should have refused to hold the ordinance unreasonable and this without regard to his determination of the question whether it was a rental or license ordinance.

The court held it a rental as distinguished from a license ordinance. We are not inclined to adopt that view but think it should rather be held a license ordinance which, under the authorities before cited, was within the power of the city to enact. Appellant claims that the city does not own the fee in a part of the streets on which the poles in question are located, because the plat of the portion of the city in which those streets lie shows a common-law dedication instead of a statutory dedication. We think the record sustains this claim. It is further argued if this is a rental ordinance the city, because of that fact, had no authority to require a rental to be paid. This is denied by appellee, but neither party furnishes any authority on that subject. If we are correct in our assumption that it is a license ordinance, we presume it is immaterial whether the city does or does not own the fee in the street. If it is a rental ordinance, the question whether the ownership of the fee in the street is material, and, if so, in what respect and how far to be distinguished from cases where the city does own the fee, should be determined by some court after a careful and thorough investigation by counsel and citation of the authorities on that subject.

It is admitted that the defendant was using the number of poles indicated by the judgment. In our opinion the record discloses no reversible error, therefore the judgment is affirmed.

Affirmed.

Mr. Justice Niehaus took no part.


text:
    City of Peoria, Appellee, v. Western Union Telegraph Company, Appellant.
    Gen. No. 6,208.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Statement of the Case.
    Action by City of Peoria, plaintiff, against Western Union Telegraph Company, defendant, of the same kind and character as City of Peoria v. Postal Tel-Gable Co., No. 6,207, ante, p. 218, in which practically the same questions were raised and argued. For the reasons stated in the opinion in that case, the judgment is affirmed.
    Stevens, Miller & Elliott, for appellant; Francis N. Whitney, of counsel.
    Richard H. Radley, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    Fred B. Shearer, Administrator, Appellee, v. Aurora, Elgin & Chicago Railroad Company, Appellant.
    Gen. No. 6,093.
    1. Appeal and erbob, § 1411

      —when verdict based on conflicting evidence not disturbed. Where the questions of defendant’s negligence and of contributory negligence of the plaintiff are matters for the jury and the evidence thereon is conflicting, the Appellate Court will not interfere with the jury’s findings thereon.
    2. Street rairoads, § 64*—what degree of care required in operation of car upon approaching street crossing. The operator of a street car is bound to exercise more care on approaching a street crossing than when running the car in the middle of a block.
    3. Street railroads, § 86*—when not liable for personal injuries arising from, striking of wagon. A street railway company is not liable for personal injuries resulting from one of its cars running into a wagon to which was attached a horse which had fallen on the track so close in front of the car that the motorman, in the-exercise of proper care and management thereof, could not have avoided the collision, provided the car was not running at an excessive rate of speed.
    4. Street railroads, § 133*—when question of excessiveness of speed of car for jury. Where the evidence, as to whether the defendant’s motorman was running his car at an excessive rate of speed, was in conflict, held that the question was properly submitted to the jury.
    5. Evidence, § 444*—when testimony of attending physician concerning subjective symptoms of injured patient admissible. Testimony of an attending physician concerning the subjective symtoms of the plaintiff, by whom he was called in, not for the purpose of procuring his testimony on the trial but for the sole purpose of procuring treatment, which treatment was based upon the diagnosis so made, held admissible, though such testimony related to a time four months after the injuries were received.
    6. Evidence, § 423*—when physician may state opinion whether physical condition' was result of accident. Where, in a personal injury action, there is no dispute as to the manner in which the injuries were received or the means by which they were inflicted, the plaintiff’s attending physician may state his opinion as to whether the plaintiff’s physical condition at the time he made a diagnois was the result of the accident.

      7. Evidence, § 368

      —when nonexpert witnesses may state opinions as to physical condition. In an action for personal injuries, nonexpert witnesses, who were acquainted with and worked with the plaintiff before and after the infliction of the injuries, may state their opinions as to his physical condition after the infliction of such injuries.
    8. Damages, § 162*—when allegation in declaration sufficient as basis for proof of loss of earning power. In an action for personal injuries, under an allegation of the declaration that the plaintiff “became and was, by reason of his injuries sick, sore, lame and disordered, and suffered severe and permanent injuries to his body and limbs; and that his ligaments, bones and muscles were severely wrenched, broken and torn; and that he received other severe and permanent injury in his back and hips,” is sufficient as a basis for proof of loss of earning power, in wages, since that was a necessary or natural result of such a condition.
    9. Trial, § 91*—when objection to evidence not sufficiently specific. In an action for personal injuries, an objection that evidence as to loss of wages is “incompetent and immaterial under the pleadings in the case,” without pointing out to the trial court the absence from the declaration of an allegation specifically covering damages on account of loss of wages, is not sufficiently specific, and an error assigned on the admission of such evidence will not be considered on appeal.
    10. Appeal and ereob, § 1561*—when refusal to give requested instructions ’ not reversible error. Where c'orrect instructions given on the trial of a case cover all the law involved, a refusal to give instructions requested by a party, though they contain correct propositions of law applicable to the case, is not reversible error.
    11. Damages, § 115*—when verdict not excessive. A verdict for §1,200 for injuries sustained by a plasterer by being knocked off a wagon by a street car, held not excessive.
    Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the April term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 8, 1916.
    Rehearing denied April 6, 1916.
    David J. Peffers and' Robert J. Wing-, for appellant.
    Fred B. Shearer, for appellee.

      See Illinois Notes Digest, Vole. 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 Niehaus

delivered the opinion of the court.

This is an action on the case, brought in the City Court of Aurora, in Kane county, by William J. Nelson in his lifetime, against the Aurora, Elgin & Chicago Railroad Company, appellant, to recover damages for personal injuries claimed to have been suffered by him as the result of a collision, by which one of appellant’s street cars came in contact with a wagon in which Nelson was riding, when crossing the street car tracks of appellant’s car line at the intersection of Walnut and North Lake streets in the City of Aurora. After suit was instituted, Nelson died from other causes, and the administrator of his estate, Fred B. Shearer, was substituted as party plaintiff, and is the appellee herein.

The ground for recovery charged in the declaration is that appellant’s servants carelessly and negligently drove the street car in question, and at an exceedingly high rate of speed, and that this was the cause of the collision. One count of the declaration also charges that the collision was the result of wilful negligence on the part of appellant’s servants. There was a trial by jury, which resulted in a verdict for the plaintiff, fixing damages in the sum of $1,200, upon which the court rendered judgment, and from this judgment, the appeal is taken.

The appellant operates a street car line along North Lake street, in the City of Aurora, and the collision occurred at the point where the car line crosses Walnut street. The proof shows that Nelson was a plasterer; and at the time in question, in company with two fellow employees, and John Probert, his employer, was riding in a wagon drawn by a single horse, and driven by William Bliss, one of Probert’s employees, who sat on the right-hand side of the seat, Nelson sitting on the left-hand side, and the other two men standing in the wagon, in the ■ rear of the seat; that they were in the act of crossing the street car tracks, at the crossing, and had nearly crossed the tracks, when the horse which was drawing the vehicle suddenly fell down; and the street car, which it is claimed was miming at a high rate of speed and not managed as carefully as it should have been, when approaching the crossing, thereby came into violent contact with the wagon, throwing Nelson on the pavement.

It is claimed "by appellant that the verdict is against the weight of the evidence, upon the question of the negligence charged; and there is a conflict of evidence upon that question, as well as upon the question as to whether the parties in the'wagon were themselves in the exercise of due care in crossing the street car tracks, at the time they did; but these being disputed questions of fact, it was peculiarly the province of the jury to pass upon .'and determine them; and this court cannot say that the jury did not rightly determine them, in deciding in favor of the appellee; or that they should have decided these questions of fact in favor of the contention of appellant. There is evidence tending to show that appellant’s street car was running at a higher rate of speed than would be justified by the requirements of due care, in approaching a crossing where vehicles and people are liable to cross at any time, and. the court therefore properly refused the peremptory instruction requested by appellant. It is well-settled law that the operator of a street car is bound to exercise more care on approaching a street crossing than when running the car in the middle of a block, because he must anticipate the legitimate use of the crossing by vehicles and persons. (Savage v. Chicago & J. Ry. Co., 142 Ill. App. 342.)

The evidence shows that the horse which was drawing the wagon in question fell just before, the car reached the crossing. If the car was not running at an excessive rate of speed, when the horse fell, and was so close that the motorman, in the exercise of proper care, in the management of the car, could not have stopped the car in time to avoid the collision, then the appellant would not be liable; but it is upon this very point that the evidence is in conflict, and therefore was properly submitted to the fair judgment of the jury. Guerdon v. Corbett, 87 Ill. 274.

Various errors are assigned, with reference to the admission of what is claimed to be improper evidence, and also concerning the giving or refusal, and the modification, of certain instructions. Appellant insists that the court erred in admitting the medical testimony of Dr. Prichard, about the subjective symptoms of Nelson’s injuries, on the ground that these involved bringing to the attention of the jury what are termed self-serving declarations made by Nelson, four months after the injuries were received. It is clear, however, that Dr. Prichard was Nelson’s attending physician, whom he called in, not for the purpose of procuring his testimony upon the trial of this case, but for the purpose only of procuring from him treatment for the physical injuries from which he was suffering; and that the doctor made the diagnosis of the case in order to give him proper treatment; and that he did after-wards treat him in conformity with the diagnosis made. The testimony of a physician concerning the subjective symptoms manifested is competent under these circumstances. Stout v. Taylor, 168 Ill. App. 410.

Objection is also made because the doctor was allowed to express an opinion as to whether the physical ■condition in which he found Nelson was the result of - injuries which he had received in the collision. This evidence was competent, inasmuch as there was no dispute as to the manner in which Nelson had received his injuries, or the means by which he had received them. It was practically conceded that as a result of ■the collision he was thrown from the wagon onto the pavement, and that the fall was so severe that a portion of his back was bruised and became inflamed and swollen in consequence. “Where there is no conflict in the evidence as to the manner of receiving the injury, or the means by which the injury is inflicted, it is competent for the physician to testify whether, in his opinion, the damage which he finds was caused by reason of the injury received.” Hoxsey v. St. Louis & S. Ry. Co., 171 Ill. App. 76; Donnelly v. Chicago City Ry. Co., 235 Ill. 35; City of Chicago v. Didier, 227 Ill. 571; Chicago Union Traction Co. v. Roberts, 229 Ill. 481; Village of Chatsworth v. Rowe, 166 Ill. 114; West Chicago St. Ry. Co. v. Dougherty, 209 Ill. 241. We do not think that the decision in the Schlauder case, 253 Ill. 155, is in conflict with the views here expressed.

The evidence concerning Nelson’s physical condition after the accident, which could be judged by observation, by witnesses who" were acquainted with him and who worked with him, before and after the accident, we think was competent. It is not necessary that a witness should be an expert to express an opinion as to the apparent physical condition of a person whom he has observed; and it is proper to allow such witness to state whether, in his opinion, such person is in good health; has ability to perform work; or whether he is suffering pain, or is conscious or unconscious; or is in the possession of his mental faculties. Greinke v. Chicago City Ry. Co., 234 Ill. 564; West Chicago St. Ry. Co. v. Fishman, 169 Ill. 196; Cicero & P. St. Ry. Co. v. Priest, 190 Ill. 592; Chicago & E. I. R. Co. v. Randolph, 199 Ill. 126; Lauth v. Chicago Union Traction Co., 244 Ill. 244.

Nor was the evidence of the wages earned by Nelson, before and after receiving the injuries in question, incompetent. The fact that he could not earn as much after the injuries, on account of his physical condition, was clearly evidence of the fact that his physical condition was impaired; and the general allegations in the declaration that Nelson “became and was, by reason of his injuries sick, sore, lame and disordered, and suffered severe and permanent injuries to his body and limbs; and that his ligaments, bones and muscles were severely wrenched, broken and torn; and that he received other severe and permanent injury in his back and hips,” was sufficient as a basis for proof of the loss of his earning power, in wages, because it was a necessary or natural result of such a condition. What the court said in the case of Chicago City Ry. Co. v. Hastings, 136 Ill. 251, is pertinent to the point now under discussion, viz.: “The declaration set out the injury received, and the evidence established the extent and character of the injury; and while the evidence may not have shown the exact number of days lost by plaintiff, it showed the fact that plaintiff was disabled and unable to pursue his usual business, and from these facts loss of time was so -far established that the jury might properly take that into consideration in estimating the damages sustained.” The averment in the declaration in that case, upon which the evidence of loss of time and wages was admitted, was that in consequence of such injuries the plaintiff had been “sick and languishing from thence hitherto; that in consequence of such injuries, he had become permanently crippled.”

But it is sufficient to say, in reference to this assignment of error, that the only objection made to the evidence, when offered, was that it was “incompetent and immaterial under the pleadings in the case.” This objection was not sufficiently specific because it did not specially call the court’s attention to the fact that there was no allegation in the declaration to specifically cover damages on account of loss in wages. The specific objection, that there was no allegation in the declaration to cover loss of wages, was made, for the first time, in this court, and therefore of no avail. Prussing v. Jackson, 85 Ill. App. 324.

The instructions given by the court fully covered the propositions of law involved in the case; those given for the appellant amply state all the legal propositions it was entitled to have urged upon the attention of the jury; and there was no substantial error in the modifications of instructions made by the court. The language of the Supreme Court in George H. Hess Co. v. Dawson, appears peculiarly applicable to this phase of áppellant’s contention: “The instruction which the court gave to the jury contained substantially all the law involved in the case, and although the instructions prepared by the defendant may, some of them, contain correct propositions, no necessity existed for giving them to the jury.” George H. Hess Co. v. Dawson, 149 Ill. 145.

It is also urged that the verdict is excessive, but the evidence strongly tends to show that Nelson’s injuries were quite serious; that they left Nelson in a defective physical condition and caused him considerable pain and suffering, as well as loss of earning power and wages. The damages cannot justly be regarded as excessive.

There being no reversible error in the case, the judgment should be affirmed.

Affirmed.


text:
    Aurora Trust & Savings Bank, Appellant, v. Matt Fidler, Appellee.
    Gen. No. 6,100.
    1. Instructions, § 31

      —when court may instruct orally as to verdict. It is not competent for a court to instruct a jury orally, concerning the verdict they should render, except in relation to matters that pertain strictly to the form of the verdict, or to a correction of the form thereof.
    2. Instructions, § 31*—when oral instruction erroneous as being on matter of substance and not of form of verdict. Where, in an action on a promissory note to which the general issue and partial payment were pleaded, the jury returned a verdict: “We, the jury, find the issues for the defendant and assess the plaintiff’s damages at the sum of $1,049.42,” an oral instruction that the jury should deduct such amount from the amount of the note and return a verdict for the plaintiff for the difference, held erroneous as an oral instruction on a matter of substance and not of form of the verdict, and also as amounting to directing a verdict.
    3. Instructions, § 28*—when giving of oral instructions reversible error. It is reversible error for a trial court to orally instruct a jury concerning the law of the case, or to orally qualify or explain a given written instruction.
    4. Instructions, § 31*—ivhen oral instruction as to method in arriving at amount of verdict error. It is error for a court to orally instruct a jury as to the method they are to pursue in arriving at the amount of a verdict.
    5. Instructions, § 46*—when improper as invading province of jury. Where the evidence is conflicting it is error for the court to assume, in an instruction, that a verdict will or should be returned for any particular sum or any particular party.
    6. Trial, § 260*—when court may not reconcile self-contradictory verdict with supposed facts. Where the real findings of the jury are conjectural, a court may not reconcile a self-contradictory verdict with what he believes the findings to have been.
    Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed February 8, 1916.
    Lee Mighell, Harvey Gunsul and Olney Allen, for appellant.

      John S. Sears and Boy J. Solfisburg, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

In this case, a judgment was first entered by confession in the City Court of Aurora, on a judgment note made by Matt Fidler, the appellee, in favor of the Aurora Trust & Savings Bank, appellant, for the sum of $3,026.30. Afterwards, on motion of the1 appellee, the judgment was reopened, to allow appellee to plead in defense, and he pleaded the general issue, and a special' plea averring partial payment of the note. The case was tried by a jury, upon issues joined on appellee’s pleas. The jury first returned the following verdict: “We, the jury,'find the issues for the defendant and assess the plaintiff’s damages at the sum of $1,049.02.”

After the return of this verdict into court, the following colloquy occurred between the court and counsel and a juror:

“The Court: Now, gentlemen, I will have to send you. back again because you got confused on this instruction. What we wanted you to do in there was, if you find for the defendant, that means if you find that the defendant was entitled to that credit, then you assess the plaintiff’s damages whatever he was entitled to less that credit. Instead of that, you put in there what the defendant was entitled to. What we want to know is what the plaintiff is entitled to, after taking away what the defendant is entitled to. The thing to do is to take and figure up the amount of that note as you are directed to on this first instruction, if you remember the testimony of the young bank fellow as to , what his figures—what he said was due on the note.

“Juror: $3,157.13.

“The Court: Then you take that figure at the outset and deduct this amount that you find for the defondant, Matthew Fidler, and then you will have it right. Here I ana going to let you go back and fix that. You will get a new blank for it. You can take this one with you so you can keep your figures in mind. I do not know whether that is the figure or not.

“Juror: I think that was, to the best of my knowledge.

‘ ‘ The Court : Have you got my idea now ?

“Juror: I think we have.

“The Court: As I understand you, you found in here what the defendant was entitled to as a credit on that note?

“Juror: Yes, sir.

“The Court: Eight up to date?

“Juror: Yes, sir.

“The Court: Now then, in order to find what the plaintiff is entitled to, after giving the defendant that, you figure it up to date as you are instructed in these instructions, at a stated rate of per cent., and deduct this amount from that amount, and what is left is what the plaintiff would be entitled to on your findings here. Have you got it right now? If there is any question about it, tell me now.

“Juror: I think we can get it right now. I think we had the substance of it.”

Thereupon the jury again retired, and then returned another verdict, which is as follows: “We, the jury, find the issues for the defendant and assess the plaintiff’s damages at the sum of Two Thousand One Hundred Three Dollars and Seventy-eight Cents.”

If it were apparent that the foregoing proceedings concerned or affected merely the form of the verdict to be framed by the jury, there would not be sufficient ground in them for reversal of the judgment. (Brown v. Rounsavell, 78 Ill. 594.) But it will be noticed that the form of the second verdict is exactly like the first; the change made was a change in the amount of the plaintiff’s damages, which the jury assessed, in the first verdict, at $1,049.02, and in the second verdict at-$2,103.78. Evidently the correction made in the ver-, diet related to matters of substance, and not mere matters of form; and it is evident that the instructions which the court gave the jury orally had the direct ef-“ feet of causing the jury to bring in a verdict which was very different concerning matters of substance, and exactly the same in matters of form. It is not competent for a court" to instruct a jury orally, concerning the verdict they should render, except in relation to matters that pertain strictly to the form of the verdict, or to a correction of the form of a verdict. (Illinois Cent. R. Co. v. Wheeler, 149 Ill. 525.)

By its oral instructions, .the. court sought to correct the first verdict which was returned by the jury, concerning the matters which were in controversy, especially referring to the application of a partial payment, which appellée claimed was made upon the note in question, which, however, was denied by appellant,' and which was one of the substantial issues to be. decided by the jury from the evidence; and, in this connection, the court said to the jury: ‘ ‘ The thing to do is to take and figure up the amount of that note as you are directed to on this first instruction, if you remember the testimony of the young bank fellow as to what his figures—what he said was due on the note. * * *' Then you take that figure at the outset and deduct this amount that you find for the defendant, Matthew Fidler, and then you will have it right. Here I am going to let you go back and fix that.”

This instruction practically directed a yerdict, on. a controverted question, and the court assumed, for that purpose, that the jury had decided- the issue concerning the application of a partial payment made in-favor of appellee. This oral instruction was, therefore,. prejudicial to the rights of the appellant. It is rever-1 sible error for the trial court to orally instruct a jury' concerning the law of a case, or to orally qualify or explain written instructions which have been given. (Ray v. Wooters, 19 Ill. 82; Hefling v. Van Zandt, 162 Ill. 162; Jarnecke v. Chicago Consol. Traction Co., 150 Ill. App. 248; City of Abingdon v. Meadows, 28 Ill. App. 442; Ellis v. People, 159 Ill. 337.)

And to instruct a jury orally as to the method which they are to pursue in arriving at the amount of a verdict is error. (Illinois Cent. R. Co. v. Hammer, 85 Ill. 526.) Where the evidence is conflicting, it is error for the court to assume, in an instruction, that a verdict will or should be returned for any particular sum or any particular party. (Hawk v. Ridgway, 33 Ill. 473.)

Both verdicts which the jury returned were apparently contradictory in terms, and had a double meaning ; that is to say, the jury in both verdicts found the issues in the case for the appellee, and yet assessed damages for the appellant. The issues in the case were, first, the general issue, which in effect denied the whole of plaintiff’s claim, and its right to recover anything; and the other issue was raised by the plea of partial payment, which denied the appellant’s right to recover a part of the note sued on, namely, that part which appellee claimed was liquidated by having directed that the amount of a certain certificate of deposit be applied as a credit on the note. If the jury really found both of the issues in favor of the appellee, then the appellant was not entitled to recover any damages. Inasmuch as the verdict was contradictory and double in its meaning, it would have been entirely proper to have given the jury an additional instruction in writing, in relation to the matter that appeared to be in confusion, and allow them to make their verdict accord with the real conclusions of the jury. The court was not in position to reconcile the verdict returned with what may have been the true findings of the jury,- except by guessing at it; and it really left the true meaning of the verdict a matter of conjecture. Such a verdict, if allowed to stand, necessarily results in a mistrial. (Levy v. Beckman Pub. Co., 65 Hun 619, 19 N. Y. Supp. 751.)

For the errors indicated, the judgment must be reversed and the cause remanded for another trial.

Reversed and remanded.


text:
    The People of the State of Illinois ex rel. G. A. Morrison and Robert Simpson, Appellees, v. Henry Schwiesow et al., Appellants.
    Gen. No. 6,106.
    1. Roads and 'bridges, § 54

      —when petition to lay out new road contains sufficient number of signatures by landowners. A petition. to lay out a new road, under Rev.- St. 1913, ch. 121, sec. 75 [Cal. Ill. St. Supp. 1916, If 10000 (75) ], which is signed by sixteen landowners residing in the township or road district within two miles of the road to be laid out, is sufficient even though they could not constitute two-thirds of the landowners in the township residing within such distance, as the provisions of the statute are alternative.
    2. Roads and bridges, § 54*—when petition to lay out new road shows qualification of petitioners. A. petition to lay out a new road under Rev. St. 1913, ch. 121, sec. 75 [Cal. Ill. St. Supp. 1916, If 10000 (75) ], sufficiently shows the qualification of the petitioners where it appears merely from the recitals thereof that they are qualified.
    3. Roads and bridges, § 55*—when description of proposed new road in petition for sufficient. Where the description of a proposed new road in a petition therefor under Rev. St. 1913, ch. 121, sec. 75 [Cal. Ill. St. Supp. 1916, fl 10000 (75) ] is reasonably certain, it is sufficient.
    4. Roads and bridges, § 54*—when petition for new road sufficiently shows names of owners of lands over which it will pass. A petition for a proposed new road under Rev. St. 1913, ch. 121, sec. 75 [Cal. Ill. St. Supp. 1916, If 10000 (75) ], which states that “said proposed road is projected across the land of the following landowners,” and gives the names of such landowners, is sufficient.
    5. Roads and bridges, § 54

      —when questions of vacating of old road and laying out of new need not be included in same petition. Under the Roads and Bridges Act, ch. 121, sec. 75 [Cal. Ill. St. Supp. 1916, If 10000 (75) ], it is not necessary, although proper, that the questions of the vacating of an old road and the laying out of a new road, even where each is a part of a general plan of improvement to be carried out, be included in one petition to the commissioners of highways.
    6. Roads and bridges, § 53*—when petition for vacation of old road and for establishment of new may be considered together. A petition for the vacating of an old road and one for the laying out of a new road may be contemporaneously considered, and the projects proposed may be carried out simultaneously as part of the same general enterprise.
    7. Costs, § 30*—when highway commissioners denying petition to vacate old road and t.o establish new road not personally liable for costs. Where highway commissioners act in good faith in denying petition to vacate an old road and to lay out a new one, they are not individually liable for costs in mandamus proceedings, to compel their further action in compliance with law, upon judgment going against them.
    Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Barr, McNaughton & Barr, for appellants.
    Cowing & King, 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. Justice Niehaus

delivered the opinion of the court.

In this case, the People of the State of Illinois, ex rel. G. A. Morrison and Robert Simpson, appellees, filed a petition for mandamus, in the Circuit Court of Will county, against Henry Schwiesow, John Kahn, William H. Bisping and Victor Buetin, as Commissioners of Highways of the Township of Peotone, in Will • county, to compel appellants, as commissioners of highways, to fix a time and place to examine the route of a road, described in a petition "filed in the office of the town clerk; and which road was projected across Section 20, in the Township of Peotone, along the north and south center line of the west half of said section, running from the road on the north of the section line, south to the road on the south line of the section; also to fix a time for hearing the reasons for and against the vacating of a road, as proposed by another petition, also filed in the office of the town clerk, and to fix a time and place to examine the route of a proposed new road, and to hear reasons for or against the laying out of the new road proposed in the petition; and to give notice of the times and places of such examinations and hearings, by posting proper notices in the vicinity of the proposed new road, and the road to be vacated, as required by the statute; and to proceed in conformity with the statute concerning the matters embraced in the respective petitions.

The petition for mandamus, as first filed, was amended, and the appellants interposed a general demurrer to the amended petition. The court overruled the demurrer, and appellants decided to stand by their demurrer, whereupon a judgment was entered, taking the facts as alleged in the petition for mandamus, as confessed by the demurrer, and ordering a peremptory writ of mandamus in conformity with the prayer of the amended petition; also entering judgment for costs against appellants, as commissioners, and dismissing the suit as to John Kahn, who had ceased to be one of such commissioners. An appeal was taken from this judgment to this court.

It is urged by appellants that the appellees were not entitled to the writ of mandamus, because the petition to lay out a new road as well as the petition to vacate the old road did not meet the requirements of the statute ; that it does not appear from the recitals in the petitions for either the new road or the vacating of the old road that the petitioners constituted two-thirds of the landowners residing within the township, within two miles of the proposed new road, or within two miles of the road sought to be vacated; and that the description of the proposed new road, in the petition, is not reasonably certain; further, that the petition for the proposed new road does not purport to give the names of the owners of the lands over which the road is to pass; also, that it is not averred in the amended petition for mandamus that the petitioners applying for the vacation of the old road or for the establishment of the new road had the required qualifications to sign the same. It is also claimed by appellants that the petition to .vacate the old road and the petition to lay out the new road should have been included in the same application, each being a part of the same improvement.

As to the first assignment of error, namely, that two-thirds of the landowners residing in the township within two miles of the proposed new road, or the one sought to be vacated, did not sign such petition, it may be said that the requirements of the statute under which the petitions were drawn are in the alternative; and that while two-thirds of the landowners residing in the township may make such petition, the present statute also grants such right of petition to any number of landowners residing in any town or road district, within two miles of the road to be altered, widened, vacated or laid out. Section 75, chap. 121, Revised Statutes of 1913. [Cal. Ill. St. Supp. 1916, ¶ 10000 (75).] In this case, the number of landowners petitioning is sixteen, which number is more than required in the alternative clause of the statute referred to.

The petition in this case by the People of the State of Illinois is made on the relation of G. A. Morrison and Robert Simpson, who appear on the face of the petition to be two of sixteen landowners, residing within two miles of the road in question, in the Township of Peotone, and who signed both the petitions for the vacation of the old road and the laying out of the new road. The qualification of the relators as petitioners is therefore apparent from the recitals on the face of the petition. It is not necessary to expressly state facts in the petition to show that those signing the petition were qualified to sign. Highway Com’rs Town of Afton v. Ellwood, 193 Ill. 304. All that is required is that the qualification shall appear in the recitals in the petition. 15 Am. & Eng. Encyc. of Law (2nd Ed.) 362; Elliott on Beads and Streets, 296. The description of the road to be laid out is reasonably certain, and therefore sufficient.

It was pointed out by the Supreme Court, in the case of Henline v. People, 81 Ill. 272, that: “It was not designed that the petitioners should have the proposed route surveyed, and that the line and every point on the route and at the ends of the route should be inserted in the petition. The proceeding was intended to be practical, so that the common highways of the country might be established without the employment of a corps of scientific men for the. purpose, but that the roads might be established by ordinary, practical business men.”

The objection that the petition for the proposed new road does not purport to give the names of the owners of the lands over which the road is to pass is also untenable, for the petition states that “said proposed road is projected across the land of the following landowners,” giving the names of such landowners. The plain and inevitable inference from the language is that the parties named are owners of the land across which the new road is to be laid out, and therefore sufficient to meet the requirements of the statute. The Boads and Bridges Act referred to does not require that the vacating of an old road and the laying out of a new road, even where each is a part of a general plan of improvement to be carried out, must be included in ' one petition; while it would be perfectly proper to include both projects in one petition, it is not necessary to do so. Brown v. Roberts, 23 Ill. App. 461; Anderson v. Wood, 80 Ill. 19. Moreover, there is-nothing in the law which precludes a contemporaneous consideration of both petitions, nor a carrying out of the projects proposed, simultaneously, as parts of the same general plan or enterprise. It is apparent, therefore, that the amended petition for mandamus was not subject to the legal objections raised by the demurrer. The demurrer was properly overruled, and the petition for mandamus, taken as confessed, presented all the necessary facts to show that the appellee was entitled to the peremptory writ of mandamus which the court awarded.

Concerning the judgment for costs, it may be said that the appellants acted in their official and representative capacity; whatever they did, or failed to do, and nothing appears in the record which indicates that, they did not act in perfect good faith to do or not to do what they believed to be their duty or right in the matter. It would not have been legally proper, under these circumstances, to have assessed the costs against the appellants individually. McKay v. Riley, 135 Ill. 586.

There is no error in the record, and the judgment awarding the writ of mandamus should therefore be affirmed.

Affirmed.

Mr. Presiding Justice Dibell took no part.


text:
    John H. Gibson, Appellee, v. Frank L. Pitney, Appellant.
    Gen. No. 6,109.
    (Not to be reported in full.)
    Appeal from the City Court of Sterling; the Hon. William A. Blodqett, Judge, presiding. Heard in this court at the April term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 8, 1916.
    Rehearing denied April 6, 1916.
    Statement of the Case.
    Action by John H. Gibson, plaintiff, against Frank L. Pitney, defendant, to recover the amount of advance payments upon a contract for the purchase of real estate, after alleged breach by defendant in failing to give possession. From a judgment for plaintiff, defendant appeals.
    Defendant entered into a written contract with plaintiff on the 25th of June, 1913, by which the defendant agreed to convey to the plaintiff, by warranty deed, a farm, with a dwelling house thereon, in the county of Whiteside, in consideration of the payment by plaintiff of $18,000 as follows: $200 cash in hand; $1,100 in a note made by J. W. McCready, to be indorsed over to defendant; and the balance of the consideration to be settled by plaintiff at the time of the delivery of the deed to him, on March 1, 1914, by making a further payment of $3,700 and by giving another mortgage on the premises for $4,975, with interest at five per cent, per annum. It was expressly agreed in the contract that defendant would deliver to plaintiff a warranty deed, and give him possession of the premises on March 1, 1914, the premises to be in as good condition as they were at the date of the contract, ordinary wear and tear excepted.
    At about the date fixed by the contract for the delivery of the deed and the possession, plaintiff went to defendant, who was cashier of the First National Bank at Sterling, Illinois, and demanded of defendant that he carry out the terms of the contract, by delivering to him the deed and the posséssion of the premises r and offered to perform his part of the contract by paying the $3,700 which he had drawn from the Sterling National Bank, and had in his possession for that purpose, ' and by delivering to defendant the notes and mortgage for the settlement of $4,975, as required by the terms of the contract. The evidence showed that defendant was ready to deliver the warranty deed, but practically admitted that he could not carry out his agreement in regard to giving plaintiff possession; and it appeared from his own testimony that he proposed to obtain for plaintiff some other dwelling house to occupy until he could put him in possession of the dwelling house on the premises in question, which offer plaintiff refused to accept; and thereupon the plaintiff declared the contract at an end, and demanded a return of the part of the consideration which had been paid to defendant. Defendant refused, and plaintiff commenced this suit to recover the sum paid.
    It was urged by the defendant that under the facts presented in evidence, plaintiff had no right to recover, and that the evidence failed to show that plaintiff tendered .performance on his part, or a willingness and ability to perform, or that the actual performance of this contract, which was mutual in its character, was prevented by the defendant. There was evidence tending to show that the premises were not in as good condition at the time of the making of the contract; thát the dwelling house was quarantined, owing to the presence of smallpox; that water pipes had been frozen and were bursted, and had dampened some of the plastered walls of the house, and had caused some of the plastering to fall; and that because of the bursting of the water pipes there were several feet of water in the cellar or basement of the house, which made it very insanitary.
    Abstract of the Decision.
    1. Vendor and purchaser, § 336

      —when evidence sufficient to show that purchaser offered in good faith and was able to perform contract. In an action by a purchaser of land to recover the amount of payments made upon failure of the vendor to give possession, evidence held sufficient to sustain a finding that the purchaser offered in good faith to perform the contract and was able, at the time, to perform it.
    2. Vendor and purchaser, § 96*—when purchaser may rescind contract. The time fixed for performance of a contract is deemed the essence of the contract, and generally, if the seller of real estate is not able and ready to perform his part of the agreement on the day, the purchaser may elect to consider the contract at an end. ”
    3. Vendor and purchaser, § 336*—when evidence sufficient to sustain finding that vendor unable to perform contract at date for performance. In an action by the purchaser of real property to recover advance payments upon failure of the vendor to give possession on the date stipulated in the contract, evidence held sufficient to sustain a finding that the vendor was unable to give possession of the premises in good condition on the day stipulated in the con tract.
    H. H. Waite and N. Gr. Van Sant, for appellant.
    H. C. Ward, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Anna Koepke, Administratrix, Appellee, v. Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 6,128.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Rock Island county; the Hon. Robebt W. Olmsted, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Statement of the Case.
    Action by Anna Koepke, as administratrix of the estate of her husband, Herman Koepke, plaintiff, against the Chicago, Bock Island & Pacific Bailway Company, defendant, to recover damages for the death of the husband. From a judgment for plaintiff for $7,200, defendant appeals.
    It was alleged in the declaration that the deceased was killed while engaged as car inspector’s helper, in the line of his duty, by the negligence of defendant’s servants, and the liability of defendant was based upon the provisions of the Federal act relating to the liability of common carriers engaged in interstate business to their employees.
    The negligence charged was that the defendant, by its servants, negligently managed a switch engine and the switching which was done by defendant’s servants in connection with the distribution of a string of cars, around some of which the deceased was employed; that defendant’s servants, who were managing the switching and the switch engine at the time in question, did not exercise reasonable care to ascertain whether the deceased was endangered by their work, nor give bim any warning of the danger incurred, and that defendant’s servants negligently failed to set the brakes of the string of cars in question, and that thereby such ears got into motion, unexpectedly, and ran into the deceased.
    Abstract of the Decision.
    1. Master and servant, § 693

      —when evidence sufficient to show that cars striking car repairer at work in front of detached car were pushed with unusual violence. In' an action under the Federal Employers’ Liability Act for the negligent death of an assistant (ar repairer who was caught between the buffer of a standing mail car which had been detached from the train by a road engine and which he was inspecting, and the buffer of the foremost car of the rest of the train upon which a switch engine was working , at the other end to “cut off” two coaches, evidence held sufficient to sustain a finding that the switch engine bumped against the standing cars, during the operation of cutting off such coaches, with such violence and unusual force as to cause the string of cars to move to the place where decedent was working.

      There was a triál by jury, which resulted in a verdict finding the defendant guilty and assessing the damages in the sum of $7,200, and the damages were apportioned equally between Anna Koepke, the widow, and Helen Koepke, the only child of the deceased. The jury made a special finding to the effect that the total amount of damages suffered was $8,000, and they deducted $800 therefrom for contributory negligence of which they found the deceased guilty. Judgment was rendered on the verdict and, upon appeal, it was attacked principally on the ground that the cause of the death of plaintiff’s intestate was a part of the risk and danger assumed by him, by his contract of employment; that the damages were excessive, and that the jury, who found that the plaintiff’s intestate was guilty of contributory negligence, did not deduct a sufficiently large proportion from the whole amount of damages found, on account of such contributory negligence.
    Jackson, Hurst & Stafford, for appellant; M. L. Bell and A. B. Enoch, of counsel.
    Searle & Marshall, for appellee.

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

      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. Justice Niehaus

delivered the opinion of the court.

2. Master and servant, § 337 —what risks employee does not assume. An employee assumes only the ordinary risks and dangers of his employment and does not assume extraordinary or unusual risks thereof.

3. Master and servant, § 337*—when assistant ear inspector does not assume risk of being struck by cars during switching operations. An assistant railway car inspector, who, after a mail car has been detached from the rest of a passenger train by a road engine and moved from four to six feet from the rest of the cars standing on the track, is working in front of the buffer of the car inspecting it, does not assume the unusual and extraordinary risk of being .struck by the foremost car of the rest of the train which, with other cars, is set in motion as the result of a switch engine working at the other end of the train bumping against the standing cars with unusual violence, as such a risk is an extraordinary one.

4. Negligence, § 74*—when person not bound to anticipate negligence of another. The law does not impose upon one to anticipate the negligence of another, as it is presumed that every person will properly perform the duty which is enjoined upon him by law or imposed by contract.

5. Master and servant, § 716*—when negligence of defendant in cutting off coaches from cars moving against car repairer question for jury. In an action for the alleged negligent death of an assistant car repairer as the' result of being caught between the buffer of a detached mail car and the foremost car of the rest of the train, while inspecting the detached car, as the result of the moving of the string of cars against him, upon their being struck by a switch engine during the operation of cutting off two coaches from the other end of the train, held that it was a question for the jury whether defendant was guilty of negligence.

6. Master and servant, § 759*—when contributory negligence of car repairer standing between mail car and rest of train question for jury. In an action for the negligent death of an assistant car repairer who was killed by being crushed between a detached mail car, which he was inspecting, and the rest of the train, from which two coaches were being “cut off” by a switch engine working at the other end of the train, as the result of the engine striking the cars with such force as to set them all in motion, held that it was a question for the jury whether the deceased was guilty of contributory negligence in being in the position he was at the time of the accident.

7. Master and servant, § 98 —what is effect of contributory negligence on right of recovery under Federal Employers’ Liability Act. Under the Federal Employer’s Liability Act, contributory negligence does not bar the right of recovery, but affects the amount of damages which may be recovered, and the damages are to be diminished by the jury in proportion to the amount of negligence attributable to the employee.

8. Death, § 63*—when damages for negligent death not excessive. In an action for negligent death under the Federal Employers’ Liability Act, a verdict for $7,200 upon reduction of $800 for the contributory negligence of the plaintiff, held not excessive nor disproportionate.


author: Mr. Presiding Justice Dibell

text:
    The People of the State of Illinois ex rel. John Britt, Appellee, v. School Directors of District No. 89 in Stephenson County, Appellants.
    Gen. No. 6,150.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Stephenson county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    Statement of the Case.
    Petition for mandamus by the People ex rel. John Britt, petitioner, against the School Directors of District No. 89 in Stephenson County, respondents, to require said directors to approve the selection made by him of the Freeport high school in district No. 145 in the same town for his son, John J. Britt, and to pay the tuition incurred and to be incurred for the attendanee of said child at said high school during the current school year. From a decree awarding mandamus as prayed, respondents appeal.
    The petition alleged that Britt was a resident and taxpayer of said district No. 89, and was the father of said child, and that said child was within the school age and lived with him, and that he was responsible for the care, nurture and education of said child; and said petition set up the Statute of 1913, entitled “An act to provide high school privileges for graduates of the eighth grade,” ch. 122, secs. 470-470g [Cal. Ill. St. Supp. 1916, [[][ 10143(1)—10143(8)]. The petition alleged that district No. 145 lay south of and contiguous to said district No. 89 and had a high school therein, and afforded the nearest and most convenient high school accessible to pupils of district No. 89 which offered a full four years’ program of study, and was the only high school in said county with such program accessible to pupils of district No. 89; that relator selected said high school for the attendance of his child, and obtained the consent of the school board of said high school for the admission of said child; that said child was a graduate of the eighth grade in said district No. 89; that the tuition per capita of said high school was forty dollars per year, payable semiannually in advance, and did not exceed the per capita cost of maintaining said high school; that there were ample funds in the hands of the treasurer of district No. 89, and there were sufficient funds in his hands on July 1, 1914, to pay such tuition, specifying the amounts, and in addition thereto said district No. 89 levied a tax of five hundred dollars for the general expenses of said district for the current year, and that after paying said expenses there would remain a sum in the hands of the treasurer; that though often requested, the directors of district No. 89 refused to grant the transfer of said child, refused to approve the selection of said high school, and refused :to pay the tuition charged relator for the attendance of said child at said high school, and did this without making any objections to the selection and without designating any other high school. The directors answered, admitting many facts and denying some of the facts alleged, and stating what sums they had contracted to pay during the said school year, and that on July 29, 1914, they levied a tax of five hundred dollars for school purposes for the ensuing year, and that they appropriated said five hundred dollars for certain specified purposes, namely, for salary of teachers, four hundred dollars; for fuel, fifty dollars; for painting- schoolhouse, forty dollars; for incidental expenses, ten dollars, and that said child was in attendance at said high school. The relator' demurred to certain portions of said answer and the demurrer was sustained. Proofs were heard upon the other issues, and the mandamus was awarded as prayed.
    Abstract of the Decision.
    1. Schools and school districts, § 184

      —when order directing school officers to approve high school proper. On a petition for mandamus to compel directors of a certain school district to approve the selection of a high school for relator’s child, and to pay the tuition incurred and to be incurred for the attendance of the child at such high school for the current year, where no reason was given in the answer nor appeared in the evidence why the directors should not approve the selection of the high school, and the answer did not deny 'the parts of the petition which showed that it was reasonable that the high school be approved, held that an order directing such officers to approve such high school was proper.

      No reason was given in the answer nor appeared in evidence why the directors should not approve the selection of the high school, nor did the answer deny those parts of the petition which showed that it was reasonable that said high school should be approved.
    Egbert P. Eckert, for appellants.
    Albert H. Manus and B. E. Tiffany, for appellee.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

2. Schools and school districts, § 184*—when right of parent to have tuition of child at high schools in another district paid by his district exists. Under Rev. St. 1913, ch. 122, secs. 470-470g [Cal. Ill. St. Supp. 1916, ¶ 10143(1)—10143(8)], providing that the pupils who are graduates of the eighth grade and are resident in districts not providing a recognized four-year high school course shall be admitted upon the payment of tuition to any recognized high school for the completion of such portion of a four-year high school. course as is not provided by the home districts, and that the tuition of such pupils shall be paid by the district in which they reside “from any funds not otherwise appropriated,” directors of a district may not defeat the right of a parent to have the tuition of his child for a current year at such a high school paid, out of the funds of the district, by dividing up the amount levied for educational purposes so as to appropriate to other purposes all the sum levied for educational purposes.


text:
    Charles L. Rogers, Appellant, v. City of Mendota, Appellee.
    Gen. No. 6,151.
    1. Parliamentary law—what is proper action by legislative body when measure returned with veto. Under parliamentary rules, the proper action to be taken by a legislative body when a measure adopted by it has been returned to it by a veto of the proper authority, is to move to reconsider the vote by which the measure was adopted. '
    2. Parliamentary law—what is proper action after adoption of motion to reconsider vetoed measure. Where the majority of a legislative body adopt a motion to reconsider a vetoed measure, it is then proper to move that the measure be adopted notwithstanding the veto, or that it be passed over the veto.
    3. Parliamentary law—when measure adopted over veto. Where the required majority adopt a motion that a vetoed measure which has been reconsidered be adopted notwithstanding the veto, the passage of ordinances over veto of the mayor, made for-
    4. Municipal corporations, § 85

      —what is effect of departure from form prescribed for passage of ordinance. Departure from the form prescribed for the passage of an ordinance will not affect the validity of such action unless the governing law makes such formality vital.
    5. Municipal corporations—what constitutes a reconsideration of vetoed ordinance. In an action by a mayor to recover salary due him, in which it was contended that an ordinance reducing the salary.of the mayor was invalid because a motion to reconsider the vote by which the ordinance was originally passed was not made before adopting the ordinance over the mayor’s veto, held that as neither the general act for the incorporation of cities, article III, sec. 19 (J. & A. jf 1319), nor. a city ordinance governing the passage of ordinances over the veto of the mayor, made formality vital, the action of the city counsel, upon the ordinance being returned by the mayor, in making, seconding and carrying a motion by a vote of six to one that the ordinance be passed over the mayor’s veto, constituted in effect a reconsideration and the ordinance was consequently lawfully passed.
    Appeal'from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.

      McDougall & Chapman, for appellant.
    B. Harry Beck, for appellee.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Charles L. Bogers became Mayor of the City of Mendota on May 5,1913, and was still serving as such when this suit was begun. Up to March, 1913, there was in force in said city an ordinance which fixed the salary of the mayor at $75 per quarter. In March the city council passed an ordinance making the salary of the mayor $60 per year. The mayor vetoed it and an attempt was made to pass the ordinance over his veto. The new mayor would not accept the reduced salary and the city council claimed that the ordinance reducing the salary had been lawfully passed over the mayor’s veto. On February 6,1914, the mayor brought this suit against the city to recover the salary then due him and filed an appropriate declaration, to which the city pleaded the general issue. A jury was waived and the cause was tried upon a stipulation as to the facts. If the plaintiff is right, he was entitled to a judgment for $225; if the city is right, he was entitled to a judgment for $45. The court entered judgment for $45, and plaintiff below appeals.

The record of the city council shows that after the mayor returned the ordinance with a veto message, a motion was made that the ordinance be passed, notwithstanding the mayor’s veto, and that said motion was adopted by a vote of six to one, the yeas and nays being entered of récord. It was stipulated that that action was preceded by the following, which was not entered of record: Upon the presentation of the veto message, an alderman moved that the vote by which said ordinance was passed be reconsidered for the purpose of passing the same over the mayor’s veto 5 that another alderman seconded said motion; that the • mayor declared said motion out of order and refused to entertain it; that the alderman who made the motion then appealed from the decision of the chair; that the mayor refused to entertain said appeal, hut announced that if the council wished to pass said ordinance the proper motion was that the ordinance be passed notwithstanding the mayor’s veto. Thereupon the maker of the original motion moved that said ordinance be passed notwithstanding the veto, which motion was seconded and carried by a vote of six to one, and the mayor then announced that the ordinance was passed over the veto. The sole question is whether the ordinance could be again put upon its passage and adopted without a motion to reconsider the vote, by which the ordinance was originally adopted, being passed.

By parliamentary rules the proper action to be taken by a legislative body when a measure adopted by it has been returned to it with a veto by the proper authority, is to move to reconsider the vote by which the measure was originally adopted. If a majority of the legislative body adopt the motion to reconsider, it is then proper to move that the measure be adopted notwithstanding the veto, or that it be passed over the veto. If the required majority adopt that motion, the measure is adopted; if not, fhe veto stands. The City of Mendota is organized under the general act for the incorporation of cities. (J. & A. j[1271 et seq.) Section 19 of article III of said Act (J. & A. jf 1319) is as follows: “Upon the return of any ordinance by the mayor, the vote by which the same was passed shall he reconsidered by the council; and if, after such reconsideration, two-thirds of all the members elected to the city council shall agree, by yeas and nays, to pass the same, it shall go into effect, notwithstanding the mayor may refuse to approve thereof. The vote to pass the same over the mayor’s veto shall be taken by yeas and nays, and entered on the journal.” There was in force in the City of Mendota an ordinance in substantially the same language. No vote to reconsider was adopted in this case. The appellant contends that therefore the ordinance" was never adopted.

It is said in McQuillan on Municipal Ordinances, sections 115 and 116, that departure from the form prescribed for the passage of an ordinance will not affect the validity of such action unless the governing law makes such formality vital, as, by declaring the ordinance void unless the form prescribed be followed; and that the courts generally regard noncompliance with merely formal requirements in the manner of enacting an ordinance no ground for declaring it void. Here, neither the statute nor the ordinance on that subject declare the ordinance void unless a formal vote to reconsider be first adopted. The proper motion was made. The vote by which the ordinance was passed over the veto shows that the motion to reconsider would have been adopted if it had been put. It is not to be expected that aldermen will be experts in parliamentary law. The objection is purely technical. Six of the seven aldermen desired and intended to reconsider the vote and pass the ordinance. To reconsider does not necessarily require a formal vote. We are of opinion that the true rule to be followed by the courts in construing such action was stated in Lake v. City of Ocean City, 62 N. J. L. 160, and Oakley v. City of Atlantic City, 63 N. J. L. 127. See also, Mann v. City of LeMars, 109 Iowa 251; Whitney v. Village of Hudson, 69 Mich. 189; 28 Cyc. 352. We do not consider that People v. Chicago, B. & Q. R. Co., 266 Ill. 150, relied upon by appellant, is applicable. There the city council not only did not move to reconsider the ordinance there vetoed, but it did not have a motion to pass the ordinance notwithstanding the veto. On the contrary it proceeded to prepare and pass new provisions not contained in the original ordinance, and these new provisions were held not lawfully adopted. In Fairfield v. People, 94 Ill. 244, on pp. 259, 260, where a mayor had vetoed certain items of an appropriation ordinance, and the council had passed most of said items over the veto, and nothing is said about a motion to reconsider, and apparently there was no such motion, the court said that it considered that the subsequent action of the council ‘ amounted in law to an adherence to appropriations previously made, the mayor’s veto to the contrary notwithstanding.” We are of the opinion that the action of the city council in taking up the matter and voting upon it after the mayor had vetoed the ordinance should be held as in legal effect a reconsideration, and as this was done by a two-thirds vote, the ordinance was lawfully passed over the mayor’s veto. The judgment is therefore affirmed.

Affirmed.


text:
    Joseph W. Maple, Administrator, Appellee, v. Stephen G. Lawhun, Appellant.
    Gen. No. 6,175.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    Statement of the Case.
    Proceedings by citation under section 81 of the Administration Act (J. & A. jf 130), by Joseph W. Maple, as administrator of the estate of Margaret M. Hemmerly, deceased, petitioner, against Stephen G-. Lawhun, respondent. From an order against respondent on his appeal to the Circuit Court from the Probate Court and a trial there de novo, requiring him to turn over to the administrator a certain fund of $4,000, derived from the sale of certain securities, with certain interest charges thereon, and a certain note, executed by David Slaman, for $6,395 and a mortgage securing the same, and certain interest charges in connection therewith, respondent appeals.
    Abstract of the Decision.
    1. Evidence, § 35

      —when possession is proof of title. As a general rule the possesion of personal property is proof of title.
    2. Executors and administrators, § 97*—when burden of proof upon confidential agent to show right to personalty in his possession after death of owner. A confidential agent of the owner of personal property who has lawful access thereto and abundant opportunity to transfer it to his possession without the knowledge of the owner, and has possession of the property after the death of the owner, is required to assume the burden of establishing as a defense that he came by such property in good faith in proceedings by citation under the Administration Act (J. & A. H 130).
    3. Executors and administrators, § 97*—when evidence sufficient to show fiduciary relation. In proceedings by citation under the Administration Act, sec. 81 (J. & A. V 130), for the discovery of concealed effects of a decedent alleged to be in possession of respondent, evidence held sufficient to show the existence of a fiduciary relation between decedent and respondent.
    4. Executors and administrators, § 97*—when evidence sustains finding that respondent did not make expenditures out of own or borrowed funds. In proceedings by citation under the Administration Act, sec. 81 (J. & A. If 130), for the discovery of concealed , effects of a decedent alleged to be in possession of respondent, evidence held sufficient to sustain a finding that respondent did not expend money for the building of a house for decedent, for which he claimed the right to certain securities belonging to decedent in payment, out of his own or borrowed funds.
    Weil & Bartley, for appellant.
    Tichenor, Todd & Wilson, for appellee.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

5. Executors and administrators, § 97*—when evidence sufficient to show that note belonging to decedent not given in payment ■for services. In proceedings by citation under the Administration Act, sec. 81 (J. & A. V 130), for the discovery of concealed effects of a decedent alleged to be in possession of respondent, evidence held sufficient to sustain a finding that a note belonging to decedent was not given to respondent in payment for alleged services.