text:
    Mary Newkirk, Administratrix of the Estate of Frank P. Newkirk, Deceased, Appellee, v. Albert F. Gross, Appellant.
    1. Appeal and error—when giving unnecessary instruction is harmless error. Giving an instruction which was unnecessary because it covered a question not raised in the case is not reversible error on that account.
    2. Negligence, § 213

      —when instruction not misleading. "Where an instruction in an action for shooting plaintiff’s intestate was to the effect that if the jury believed from the evidence that the deceased was shot by the discharge of a gun in the possession or control of the defendant “at or immediately before the time of its discharge,” etc., held that the word “immediately” is generally understood as meaning “instantly, directly, without delay, forthwith,” etc., and that its use could not have misled the jury.
    3. Instructions, § 120

      —when properly refused. It is not error to refuse to give an instruction not based on the evidence.
    4. Negligence, § 151

      —when burden of proof as to freedom from is on person holding exploding weapon. A person in the sole control, possession and management of a dangerous weapon at the time it explodes and injures another person has the burden of showing that such explosion was not by any negligence or fault on his part.
    5. Negligence, § 191

      —when freedom from contributory negligence is a question for the jury. In an action for shooting plaintiff’s intestate, held that it was a question of fact for the jury whether the defendant was without fault at the time of the injury, and their finding should not be disturbed unless against the manifest weight of the evidence.
    Appeal from the Circuit Court of Clinton county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Ford & Jones, for appellant.
    Noleman & Smith and J. J. McGafeigan, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

The record in this case discloses that on December 3, 1914, while appellant and appellee’s intestate were hunting near the home of appellee’s intestate, the gun of appellant was discharged and its contents took effect in the right limb of appellee’s intestate between the hip and the knee. The injury occurred about 2 p. m. in the afternoon, and at 8 p. m. in the evening death resulted therefrom. '

An action in trespass was instituted by appellee as administratrix of her husband’s estate in the Circuit Court of Clinton county against appellant resulting in a verdict and judgment of $1,900 against appellant, from which judgment he prosecutes this appeal.

It is first contended by appellant that the court erred in refusing to exclude the evidence and peremptorily instruct the jury to find him not guilty. Without going into a detailed consideration of the evidence in the record, it will be sufficient to say that taking the evidence with the proper inferences to be drawn therefrom it was sufficient to go to the jury and there was no error in the trial court refusing to give appellant’s peremptory instructions.

It is next insisted by appellant that the trial court erred in giving the second and third instructions given on behalf of appellee. Instruction No. 2 is as follows: “The court instructs the jury that if you believe from a preponderance of the evidence in this case that the deceased, Frank P. Newkirk, while he was using ordinary care for his own safety, was wounded as the result of the discharge of a gun which was in the control of the defendant, Albert F. Gross, at or immediately before the time of said shooting, then it is not essential for the plaintiff to- prove in order to recover in this case that the shooting of her husband was done wil‘fully or intentionally by the said Albert F. Gross.” The complaint made as to this instruction is that the court erred in instructing the jury that it was not necessary for appellee to recover in this case to prove “that the shooting of her husband was done wilfully or intentionally by the said Albert F. Gross.” We do not understand from the argument of appellant’s counsel that this instruction does not state a correct principle of law, but it is argued that as no question was made that the shooting was intentional or wilful, an instruction in regard thereto would tend to mislead the jury as to the issues involved. While the giving of thi " instruction may have been unnecessary in this case, the giving of the same was certainly not such error as to require a reversal of the judgment on that account.

Appellee’s third instruction is as follows: “The court instructs the jury, that if you believe from a preponderance of the evidence in this case that the said Frank P. Newkirk, while in the exercise of ordinary care for his own safety, was shot by the discharge of a gun which was wholly in the possession or control of the defendant, Albert F. Gross, at or immediately before the time of its discharge, and that the said Frank P. Newkirk died as the result of said,shooting, then, although you may further believe from the evidence that the said Gross did not intentionally discharge said gun at the said Newkirk, yet if you further believe from the evidence that said gun was. discharged by the reason of the negligent or careless manner in which said gun was then and there handled or managed by said Gross, then you may find the defendant guilty.” The complaint made to this instruction is the use of the words “at or immediately before the time of its discharge,” it being contended that the statement in the instruction would tend to mislead the jury and that the instruction did not state a correct principle of law. The word “immediately” used in the instruction is a word of such common acceptation that we do not think the jury would have been misled thereby. As generally understood, the word has much the same meaning as instantly, directly, without delay, forthwith, etc. “ ‘Immediately’ implies without any interposition of other occupation; instantly, or instantaneously; in an instant, or without any intervention of time; directly, without any division of attention.” Streeter v. Streeter, 43 Ill. 165.

We do not believe there was any substantial error in the court giving this instruction and we fail to see how the jury conld have been misled to the hurt of appellant thereby.

It is next insisted that the court erred in refusing the ninth, tenth and eleventh instructions presented on behalf of appellant. So far as instruction No. 9 presents a correct principle of law, it was covered by other instructions given on behalf of appellant. Instructions 10 and 11 assumed as facts matters not supported by the evidence. In other words, instructions 10 and 11 are not based on evidence in the record. Instead of it being error in the court refusing to give instructions 10 and 11, the court would have erred had it given said instructions. We think so far as the instructions in this case are concerned, the court liberally instructed the jury on behalf of appellant, giving some eight instructions, which we think covered appellant’s theory of the case so far as his theory was supported by the law. Only three instructions were given on behalf of appellee.

It is also contended by appellant that the verdict is against the manifest weight of the evidence. Appellant’s counsel concede in their argument, quoting from page 5 of their brief: ‘ ‘ That one in the control, possession and management of a dangerous weapon, who, while so in possession and control of the same, permits it to explode and injure another, casts the burden upon him to show that it was not by any negligence or fault upon his part.” This, we understand, to be a substantially correct statement of the law covering this character of case. Atchison v. Dullam, 16 Ill. App. 42; Zoeller v. Schmitz, 172 Ill. App. 167; Harrison v. Allen, 179 Ill. App. 520.

In Atchison v. Dullam, supra, the court after discussing a line of cases involving injuries by firearms at page 46 says: “These adjudications which we admit as authorities, and give our unqualified approval to the conclusions therein reached, clearly show how strictly the law holds a party' responsible for injuries inflicted upon another in the use or handling of firearms. They determine that if a person is injured by the discharge of a gun in the hands of another who has entire control of it, the burden is cast upon the latter to prove that the gun was not fired at him either intentionally or negligently, but the result was inevitable and without the least fault upon his part.”

The court further says: “Firearms are not usually discharged without the intervention of some human agency. A presumption, therefore, almost conclusive in its character, is raised, that when such weapons are discharged while in the possession and control of another, the firing is caused either by design, carelessness or inadvertence upon his part.”

In Zoeller v. Schmitz, supra, at page 169 the court says: “The rule is that if a person is injured by the discharge of a gun in the hands of one who has entire control of it, the burden is upon the latter to prove that the gun was not fired by him, either intentionally or negligently, but that the result was inevitable and without the least fault upon his part. Atchison v. Dullam, 16 Ill. App. 42; Cole v. Fisher, 11 Mass. 137; Bahel v. Manning, 112 Mich. 24; Morgan v. Cox, 22 Mo. 373. In the cases cited it would seem that the weapon was in the hands of the defendant, hut we think the rule should be the same whether the gun was actually in the hands of the defendant or in his lap, as in the case before us.”

In Harrison v. Allen, supra, being a case from this district, this court cites and approves the language used in Atchison v. Dullam, supra.

It is contended by appellant that the shooting of appellee’s intestate was purely accidental without any negligence on the part of appellant, and occurred while appellant and appellee’s intestate were'hunting; that appellant tripped and fell with his gun on his shoulder at the time and that when the gun struck the ground it exploded, the shot therefrom lodging in the right limb of appellee’s intestate between the hip and the knee. It is conceded that appellant and appellee’s intestate were only about thirty or thirty-five feet apart at the time the injury occurred; they were quail hunting and the shot which lodged in the limb of appellee’s intestate were small bird shot. The testimony of appellee and her son Frazier Newkirk, a young man about eighteen years of age, is to the effect that appellant and appellee’s intestate had been gone from the house some thirty minutes when appellant came running to the house of appellee’s intestate hallooing, and upon the son inquiring of appellant, “What is the matter, Mr. Gross?” appellant replied, “I have shot your father’s leg off from here on down and he fell right down in the water.” On the other hand, appellant testified in his own behalf, in reference to this conversation, that after the injury occurred he went to the house, and that appellee’s son asked him what had happened, and in answer he said: “I told him I had fallen and shot Frank Newkirk in the leg.” Frazier New-kirk, son of appellee, testified that when he, appellant, and one or two of the neighbors went to the place where appellee’s intestate was lying after his injury, appellant said to appellee’s intestate, “Frank,- you know I did not intend to do it,” and that appellee’s intestate replied, “Albert, I know you didn’t.” Also, that appellee’s intestate stated to one of the neighbors, who was in the house of. appellee’s intestate the afternoon of the injury, that the shooting was accidental.

An attempt was made to impeach Frazier Newkirk by showing that he made different statements with reference to what appellant had said at the home of appellee’s intestate immediately after the injury, the effect of the testimony being that he had stated in the presence of these witnesses that appellant said that he had caught his foot in the grass and fell down and shot appellee’s intestate in the leg. This evidence tended to impeach the testimony of appellee’s son, but we are of the opinion that taking the whole testimony as shown by the record it was a question for the jury to determine as to whether or not the shooting of appellee’s intestate was without the fault of appellant. It was conceded by appellant in his argument that immediately prior to the discharge of his gun he had the complete possession and control thereof. (Quoting from page 20 of appellant’s brief), “We confess that Gross, immediately prior to the discharge of the gun, had the complete possession and control thereof, and did not lose control of the same until after he fell to the ground. ’ ’ The burden under the authorities above cited was on appellant to prove that the shooting of appellee’s intestate was without fault on his (appellant’s) part. There is no testimony in the record proving or tending to prove what degree of care appellant was using just at and immediately prior to the time his gun was discharged.

There was no serious error in the instructions and, as there is no complaint with reference to the rulings of the court on the admission and exclusion of evidence, it was a question of fact for the jury as to whether or not appellant was without fault at the time of the injury, and their finding on that question should not be disturbed unless against the manifest weight of the evidence. We are unable to say that the jury were not warranted in their findings.

Finding no reversible error in the record, the. judgment of the trial court will be affirmed.

Judgment affirmed.

Mr. Justice McBride took no part on the hearing or decision of this case.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    Morris Sternberger, trading as Empire Furniture Company, Appellee, v. Anheuser-Busch Brewing Association, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1411

      —when finding of jury "based on conflicting evidence will not be disturbed. The finding of the jury upon a disputed question of fact when amply supported by the evidence will not be disturbed.

      Appeal from the City Court of Bast St. Louis; the Hon. Robert H. FLAisrmGAN, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by Morris Sternberger, trading as Empire Furniture Company, plaintiff, against Anheuser-Busch Brewing Association, a corporation, defendant, to recover for certain saloon furnishings that plaintiff claimed to have sold to defendant. From a judgment in favor of plaintiff, defendant appeals.
    Dan McG-ltnn, for appellant.
    Keefe & Sullivan, for appellee.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

2. Corporations, § 355 —when evidence sufficient to show authority of agent to make contract. Where the evidence tended to show that the manager of a beer company’s office had authority to lease and rent out saloons, sell beer and collect money, and was a salesman and general man of said company, and claimed to have authority to buy certain saloon furnishings, and said company’s vice president said the matter should be settled with said manager as local agent, held that the jury were warranted in finding said manager had authority to enter into a contract for the purchase of such furnishings.

3. Corporations, § 355 —when evidence is sufficient to show agency of local manager of corporation to transact business. Evidence held to show that the defendant beer company had in making a certain person manager of its local office in East St. Louis clothed him with apparent authority to transact all business of the character said company was transacting in that city, including the purchase of certain saloon furnishings.

4. Corporations, § 355 —when bound by acts of agent. A corporation is bound by the acts of its agent when it clothes such agent with apparent authority to transact certain business, even if, as a matter of fact, it has not so authorized him.


text:
    Dora M. Riggin, Appellee, v. Martin Keck, Appellant.
    (Not to he reported in full.)
    Appeal from the County Court of Madison county; the Hon. H. B. Eaton, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Behearing denied and opinion modified and refiled January 13, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Dora M. Biggin, plaintiff, against Martin Keck, defendant, to try the right to property taken by defendant under an attachment. From a judgment in' favor of plaintiff, defendant appeals.

      Abstract of the Decision.
    1. Acknowledgment, § 34

      —what does not constitute fatal omission in by justice of the peace. The omission of the words “and entered by me” made by a justice of the peace in his certificate of acknowledgment to a bill of sale does not render such hill of sale void as to third parties.
    2. Acknowledgment, § 44

      —when presumed that proper entry of certificate of is entered in record of justice of the peace. It will he presumed, on appeal, in absence of evidence to the contrary, that an entry of a certificate of acknowledgment to a bill of sale was entered by a justice of the peace in his records.
    3. Fraudulent conveyances, § 89

      —when bill of sale by husband to wife is valid. Where a husband is indebted to bis wife, at the time he executes a hill of sale to her of certain personal property, and said bill of sale is made upon a sufficient consideration and is a fair transaction, it is valid and binding notwithstanding he may he at the time indebted to other parties.
    4. Fraudulent conveyances, § 284

      —when good faith in making transfer is question for jury. The question whether a husband’s conveyance to his wife of certain personal property is for a bona fide debt to her and made in good faith and not in fraud of the rights of creditors is one of fact for the jury,' and their finding should not be disturbed unless against the manifest weight of the evidence.
    5. Appeal and error, § 1562

      —when refusal of abstract instruction is harmless error. The refusal of an instruction which is abstract in form though correct in announcing the principle of law is discretionary with the court and is not reversible error, particularly if such instruction is long and involved and would tend to confuse rather than enlighten the jury.
    6. Appeal and error, § 1525

      —when defective instructions are not reversibly erroneous. Instructions are to be taken as a whole, and if when so taken the jury could not have been misled by the failure of some of the instructions to require the jury to find from a preponderance of the evidence, such failure is not reversible error.
    J. L. Simpson, for appellant.
    Geers & Geers, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

7. Appeal and ebbob, § 1546 —when giving of instruction assuming facts is harmless error. An instruction which assumes a fact is erroneous, hut where such instruction does not direct a verdict, and the error is not serious when the instruction is considered with other instructions, and the facts assumed arise only incidentally, the giving of such instruction is not reversible error.


author: Mr. Justice McBride

text:
    John Holliday and Sarah Lounsberry, Defendants in Error, v. O’Gara Coal Company, Plaintiff in Error.
    1. Mines and minebals, § 182

      —when existence of dangerous condition in mine because of fallen electric wires is question for jury. Where electric wires carrying current for motors and machines in a coal mine were fastened to pegs at the top of a narrow space eighteen inches wide and four feet high on the side of a car track but had become detached and had fallen to the ground a few inches from the outside rail for about thirty feet so that plaintiffs’ son, a car driver, when he went to the rear of his car by direction of the mine boss to remove a sprag placed under the inside wheel to keep the car from backing came in contact with said fallen wires and was killed, held that whether a dangerous condition existed was a question of fact for the jury.
    2. Mines and minebals, §. 194

      —when instruction is properly refused in action for death of miner. An instruction in an action for the death of a miner which does not include all the elements to be considered in determining whether he was properly at the place in the mine where he was killed is properly refused.
    3. Death, § 62

      —when presumed that pecuniary loss arises from death of child. The law presumes pecuniary loss to a parent from the fact of his child’s death, but a collateral relative must prove the deceased was in the habit of furnishing such relative pecuniary assistance or he can only recover nominal damages.
    4. Appeal and ebbob, § 1535

      —when omission of word “preponderance” from instruction is harmless error. The omission of the word “preponderance” from an instruction requiring the jury to find “from the evidence” is not reversible error where the instructions taken as a series showed the jury were fully informed on the questions of burden of proof and preponderance of evidence and could not have been misled.

      5. Death, § 67

      —when verdict is not excessive for death of child. Where, in an action for damages for killing of plaintiffs’ son, the deceased was shown to have been earning $2.56 a day and was only eighteen years old, a verdict for $1,000 was not unreasonable.
    Error to the Circuit Court of Saline county; the Hon. Albert W. Lewis, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Whitley & Combe, for plaintiff in error; Mastín & Sherlock, of counsel.
    George W. Dowell and B. W. Pope, for defendants in error; Parrish, Parrish & Stilwell, of counsel.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

Defendant in error recovered a judgment in the court below for $1,000, to reverse which this writ of error is prosecuted.

It appears from the record in this case that Carl Holliday, a son of the defendant in error, hereinafter called defendants, was killed while engaged at work in the mine of plaintiff in error, hereinafter called plaintiff. The deceased was killed on March 1, 1910, by reason of having come in contact with an uninsulated electric wire that was used for carrying the current of electricity to the machines that were engaged in undercutting the coal. Deceased had been at work for plaintiff for about two weeks and was engaged as a driver, pulling coal from the rooms into what they call a parting, on the west side of the mine, and was located in the main west entry. This parting was from seventy-five to one hundred feet in length and was of the width of about thirty feet, and in it was constructed two switches, one on the north side of the parting and one on the south side thereof; both of which switches connected with a single track in the main entry leading out into the works on the west and to the single track extending from the east end of the parting to the hoisting shaft. The empty cars were brought from the hoisting shaft with a motor and placed upon the north switch in this parting and were there taken by the drivers west into the several rooms, and when loaded they were returned by the drivers and collected upon the track located upon the south side of the parting, from whence they were hauled by the motor into the hoisting shaft. There was a down grade from the west to this parting and drivers in bringing in their coal were required to sprag their cars so as to keep them from running through the switch in the parting onto the main track. At the place where the spragging was done there was only a single track, and the driver could sprag either on the north side of his car or on the south side, but according to the testimony of the witness, Florence Rippy, who was boss driver, he had told the deceased: “I would sprag on the south side in order to get over this switch on the branch, and for him to be careful and not get hurt; ’ ’ and the deceased was at the time working under the directions of Rippy. It further appears that the track on the south side was within about eighteen inches of the rib, opposite the rails, which had been cut up the distance of about four feet, which left an opening about eighteen inches wide and four feet high on the south side of the rail, and in this open place the electric wires were placed which carried the electric current for the motors, and also for the machines, and these wires had been fastened to the top of this open space by pegs that were insulated; that for some twenty-five or thirty feet the wires had in some manner become detached from the peg’s and dropped down to the ground, which left the wires within a very few inches of the outside rail of the south switch, and when deceased ran his car of coal in on this switch it came opposite the place where the wires were down, and the sprag being in the south wheel, he passed around behind thé car and attempted to remove the sprag which placed him close to the wire carrying the current of electricity to the machines, and it was at this place and under these conditions that he was killed by this electric current.

It further appears from the record that the defendants were the father and mother of deceased, and that when he was about the age of seven or eight years they separated and afterwards the mother procured a divorce and the boy remained with her for a while and the mother was remarried, at which time the boy lived with his grandfather, and in later years worked with his father in the mine, and the father received the wages. It also appears -that immediately prior to the time of the boy’s death he had been receiving his own wages and had, in fact, assigned them to different persons to procure money and articles purchased in the store. He was receiving $2.56 per day for his work.

It is insisted by counsel for plaintiff that the dangerous condition did not exist in the mine as charged in the declaration and for that reason there could be no recovery.

The evidence discloses that in this parting there were two tracks, one on the south side upon which the loaded cars were brought from the works and collected for the motor to haul to the hoisting shaft, and the track upon the north where the empty cars were collected for the drivers to haul out into the works. There was a space of about eighteen inches wide and four feet high between the south rail and thé rib, in which the wires for carrying the electricity were located. They had been fastened to the top of this under cut but by some means the wire had become detached from the fastening for the distance of twenty-five or thirty feet and allowed to lie on or near the ground. There was a down grade from the west and the drivers were required to sprag their cars so as to keep them from running through the switch onto the track, and the deceased had been instructed by the boss driver, under whose direction he was working, that it was better to sprag the south wheel of his car so that when the car reached the frog it would turn onto the proper switch, and this the deceased did, and when the car was stopped near the place where this wire was down, other cars being ahead of it, there was no occasion to leave the sprag in so he passed around behind the car and stooped in between the car and the wire to remove the sprag, and while doing so was killed. We think that the evidence tended to show that a dangerous condition did exist and it was certainly a question of fact for the jury to determine, and the jury having found that it was a dangerous condition, we can see no reason for disturbing the verdict upon that ground, and believe that the court did not err in refusing to direct a verdict for the defendant. In this connection complaint is made of the refusal of defendant’s sixth instruction, which, in effect, states such physical facts would not necessarily constitute a dangerous condition, but did not include in this statement the necessity of spragging the car or the removal of the sprag, and other conditions that in fact existed, and concluded by saying that if deceased did not have to go in the place where he did in the discharge of his duty, that the jury should find the defendant not guilty. We think the court did right in refusing this instruction. It did not include all the elements to be considered in determining whether or not the deceased was properly at this place, and even if he did not perform the duty in the particular manner that the defendant would desire him to, he was actually in the performance of the duty, and even if negligently performed, could only be contributory negligence, which is no defense.

It is also insisted by counsel for plaintiff that there is no proof of actual pecuniary damages to the defendants and that they were not entitled to recover more than nominal damages. It is said that the deceased did not in any manner contribute to the support of either of his parents and that he was allowed to care for himself and lived with his grandfather, or wherever he could secure a livelihood. While it is true that the record does not disclose that he ever contributed any great amount, yet the uncle of the boy states that he did contribute to their support, but it is insisted that actual dependence for support in some substantial measure at least upon the decedent is necessary to a recovery. It is true that it appears from the evidence that the parents were separated, the mother had remarried and that the boy lived a part of the time with his grandfather and a part of the time worked with his father, and that a part of the time the boy lived with his mother, but with all that this did not change the relation that the boy sustained to the defendants. He was their son and they were lineal heirs. ' It is said by our Supreme Court in the case of ' Willis Coal & Mining Co. v. Grizzell, 198 Ill. 317, which was a case where a father was suing for loss by reason of the death of a son: “The deceased left no child, children, descendants of children or adopted child or children, and no mother. Benton Grrizzell, the father, was the only ‘lineal heir’ of said Thomas Lee Grrizzell, the deceased, hence the right of action rested in the appellee Benton Grrizzell alone.” The defendants being lineal heirs of the deceased, we think that it is well settled by our courts that upon proof of the death, by reason of the negligence of the plaintiff, the law presumes pecuniary loss and substantial damages to such lineal heirs, and that an entirely different rule prevails where the next of kin are lineal and where they are collateral. If collateral, they must prove that they were in the habit of receiving pecuniary assistance from the deceased or they could only recover nominal damages. “If they were lineal, the law presumes pecuniary loss from the fact of the death.” Dukeman v. Cleveland, C., C. & St. L. Ry. Co., 237 Ill. 109, citing City of Chicago v. Scholten, 75 Ill. 468, and Chicago & N. W. R. Co. v. Swett, 45 Ill. 197.

We have examined the authorities cited hy counsel for plaintiff upon this subject, and while in the case of Fowler v. Chicago & E. I. R. Co., 234 Ill. 625, the court condemned the instruction given, but in passing upon that instruction they say that the question of damages is exceedingly difficult of admeasurement and must therefore be left largely to the judgment of the jury, and state a number of things that may be proven in connection with the life and habits of the deceased, and conclude by saying: “And to prove whether he was of good habits, so that the jury could determine whether or not he would probably make proper use of such ability and money-earning capacity as he might possess. These and other matters of like character may be shown and are proper for the consideration of the jury, and the jury should upon such evidence, together with all the other evidence in the case, fix the damages, if any, at a sum equal to the actual pecuniary loss sustained by the next of kin.” In this connection counsel criticise the action of the court in giving the defendant’s fifth instruction upon the question of damages and refusing plaintiff’s fifth instruction upon the same question. The refused instruction by its terms limited the amount of recovery to nominal damages, and the defendant’s fifth given instruction would by its terms permit substantial damages, as they should determine from all of the circumstances that he would have been able to and would probably have given to the plaintiffs so far as appears from the evidence. We believe that the court did not err in refusing the fifth instruction offered by plaintiff, and that the instruction as given for the defendants was substantially correct.

Lastly, it is insisted by counsel that the giving of the first instruction on behalf of the defendants was tin-most serious error committed by the court, in that i' did not require the plaintiff to prove that a dangerous condition existed, at the place complained of, by a pre - ponderance of the evidence in the case, and that it allowed “A jury full sway to find a verdict by any-kind of evidence under an instruction of this kind.” It is true that the word “preponderance” is not used in this instruction, but it does require the jury to believe “From the evidence that there existed a dangerous condition,” but we think the jury were well advised that the defendants were required to prove their case by a preponderance of the évidence by plaintiff’s second, sixth and eighth instructions. By the sixth of these instructions the jury were told that “The burden of proof is upon the plaintiffs to prove the exact violation of the statute in manner and form as charged in the declaration.” These instructions must be considered as a series, and the question of the burden of proof and preponderance of evidence was so often stated that we feel quite confident the jury could not have been misled about their duty in this respect.

It is also true that. there was no dispute as to the facts in this case upon the question of the conditions that existed in the mine, so that plaintiffs have no right to complain in this regard. If the deceased was capable of earning $2.56 per day and was only eighteen years of age, we are not able to say that the verdict of this jury was unreasonable in allowing these parents $1,000.

We find no substantial error in the verdict of the jury, instructions, or order of the court in overruling the motion for a new trial, and the judgment of the lower court is affirmed.

Judgment affirmed.


text:
    LaSalle Extension University, Plaintiff in Error, v. John H. Stelle, Defendant in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1787

      —when judgment reversed for failure to file brief. The judgment of the lower court may be reversed pro forma under Rule 27 of the Appellate Court where the defendant in error fails to file a brief.
    Error to the County Court of Hamilton county; the Hon. J. S. Sneed, 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 LaSalle Extension University, plaintiff, against John H. Stelle, defendant, on a contract for the sale of a set of law books and a course of instruction. From a judgment against plaintiff for costs, plaintiff brings error.
    J. Wilson Jones, for plaintiff in error.
    J. H. Lane, for defendant in error.

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

   Mr. Justice McBride

delivered the opinion of the court.


text:
    Tobitha Swigert, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    1. Railroads, § 315

      —when not liable for construction of levee in public highway. The construction by a railroad company under the direction and order of the county commissioners of a levee in a public highway over a river does not render such company liable in damages for an injury occasioned either by the construction or by the maintenance of such levee.
    2. Railroads, § 315

      —when change of course of river by is not actionable. The purchaser of river -bottom land takes the risk of overflow, and a railroad company cannot be made to pay damages for such overflow simply because it makes a new channel for said river on its right of way, if such channel conveys the water into the old channel before it leaves such right of way and affords equal or better means for escape of the water and brings no more water on said lands than flowed there in a state of nature.
    3. Railroads, § 315

      —when railroad has right to change or divert current of river on right of way. A railroad company has a right to build its road through bottom lands and to change or divert the current of a river on its right of way by a.new channel if equal or better means for escape of flood waters are provided and the water is returned to its old channel before leaving such right of way.
    4. Railroads, § 328

      —what is duty of railroad in constructing road along or across streams. A railroad company has authority under the statute [J. & A. If 8754 (5)] to construct its road along or across streams but must construct necessary culverts and bridges or sluices as the natural drainage requires, and must restore a stream to its former state or to such state as not unnecessarily to have impaired its usefulness.
    5. Railroads, § 330

      —what is duty of railroad electing to close a natural water course as to providing other channels. It is the duty of a railroad company which elects to close a natural water course to make new channels of sufficient capacity to carry the water then carried by the natural stream and all that might thereafter lawfully come to or be turned in to flow through, such natural channel, but not such flood waters as could not be carried by the natural channel and were accustomed to spread over the entire valley.
    6. Damages, § 244

      —when error in receiving evidence is harmless. Error in receiving evidence to prove damages is harmless where there is no claim that damages awarded were excessive.

      7. Damages, § 244

      —when error in giving instructions on is harmless. Error in giving instructions as to the measure of damages is not ground for reversal where there is no claim that the damages awarded are excessive.
    8. Appeal and ebbob, § 461

      —when assignment of error is not preserved for review. Assignment of error that verdict is against the weight of the evidence, held not preserved for review.
    Appeal from the Circuit Court of Johnson county; the Hon. William W. Clemens, Judge, presiding. Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    Spann & Spann, for appellant; J. A. Connell, of counsel.
    R. E. Choisser and Lewis & Lewis, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

Appellee recovered a judgment against appellant for $550 on account of the depreciation in value of certain farm lands owned by her, and occasioned, as she claims, by the improper construction of the grade or embankment upon which appellant’s track is located, adjacent to her land.

A portion of appellee’s lands lies in the Cache River Valley, and the gist of each count of the declaration is that said lands were formerly drained by the Cache River; that such drainage kept the lands of appellee free from all injurious and damaging excesses of water; that in constructing its,grades and embankments appellant permanently stopped up and obstructed the channel and outlet of said river across its right of way; that by reason thereof, large quantities of water which usually flowed through the basis of said stream were obstructed and diverted over and upon the lands of appellee, and caused to stand and accumulate, rendering her land swampy and unfit for cultivation. Certain of the counts also charged that by the action of the water, great holes were washed in appellee ’s lands.

Appellant assigns as error certain rulings of the trial court in admitting evidence to prove damages, the giving of certain instructions, at the request of appellee, upon the measure of damages, the refusal of the court to give certain instructions submitted by appellant, and that the verdict is contrary to the law and the evidence.

In the present state of the record, we are not called upon to decide whether or not the trial court committed erroy in receiving the evidence complained of to prove damages, nor to determine whether or not the instructions complained of, upon the measure of damages, were improperly given. It is not claimed by appellant that the damages awarded are excessive, and even if there be error in either of the respects aforesaid, it would constitute harmless error, and would constitute no ground for the reversal of the judgment of the trial court. (Carterville Coal Co. v. Abbott, 81 Ill. App. 279.) We are also "of the opinion that appellant has not preserved for review in this court its assignment of error that the verdict is against the weight of the evidence. (Farrell v. Illinois Tunnel Co., 177 Ill. App. 425.)

In determining the remaining question presented by this record,—the, action of the trial court in refusing instructions tendered by appellant,—it will be necessary to consider the chief facts disclosed by the evidence.

The evidence tends to show that the Cache Eiver Valley where appellee’s lands are located is approximately half a mile wide from bluff to bluff, the general course of the valley being slightly northeast and southwest. Adjacent to appellee’s lands are two lines of railroad'passing through the valley. The C. & E. I. E. E. right of way and track passes down the western side of the valley, adjacent to the bluff line, a part of its right of way passing through appellee’s lands. The right of way and track of appellant’s railroad passes down the eastern side of the valley, adjacent to the bluffs on that side of the river, and having a part of its right of way also over lands of appellee. The O. & E. I. E. E. was constructed through this valley about 1899,—appellant’s road, during 1909.

Where these lines of railroad cross Cache Eiver, near the north side of Section 3, Township 13, Johnson County, their grades are approximately 314 feet apart. The C. & E. I. E. E. has a bridge across the river at this point, extending from the south bank of the river northeasterly to the north side of a slough. The opening through this bridge for the passage of water is 514 feet wide.

Appellant’s track through this valley is located upon an embankment, some 12 or 15 feet in height, and after entering Section 3 at the north, the right of way intersects and crosses the channel of Cache Eiver at four different points in a distance of less than half a mile. In constructing the embankment for its roadbed, appellant completely filled up the channel of the river at these points. To take care of the situation thus created, appellant constructed two new channels entirely on its right of way. Each channel connects with the natural channel of the river at the north, proceeds south along and entirely upon the right of way, until the natural channel is again reached, and the waters of the stream restored to the natural channel of the river, at points located upon the right of way of appellant.

The northerly one of these artificial channels is located upon a part of the right of way passing through or adjacent to lands of appellee in the northeast quarter of the northwest quarter of Section 3. The other artificial channel is upon the right of way passing through the southeast quarter of the northwest quarter of said section, and adjacent to lands belonging to one Brown. Appellee owns the forty, or a part thereof, lying west of Brown’s land. Appellant offered evidence tending to show that these artificial channels were of equal if not greater capacity than the natural channel of the river, and afforded equal or better facilities for the passage of water.

Slightly to the southeast of the point where appellant’s right of way first reaches the river, near the north side of Section 3, a public road crosses said stream. Between the lines of railroad, said road runs almost directly east and west, and is but a very short distance south of the river bank. The point where this road formerly crossed the main channel of the river was east of appellant’s line of right of way, and there was a steel bridge across the river at this point. The fills made by appellant in the river bed just north of the road, and the digging of the new channel, served to cut off that portion of the old channel lying east of the right of way at this point, and diverted the main channel of the river into the artificial channel constructed by appellant on the west side of its embankment. Appellant, then by arrangements made with the county commissioners, moved the steel wagon bridge from its location over the old channel east of the right of way and relocated it at a point west of its track, where the public road crosses the north end of the northerly one of the artificial channels made by it. It also appears from the evidence that ás a part of this arrangement for the removal and relocation of this bridge, appellant was required to construct in the public road an embankment or grade some, 4 feet in height, and approximately 15 feet in width, extending from the west end of this bridge, as relocated, to the G. & E. I. R. R. grade.

The lands involved in this suit lie south of this public road and between the lines of railroad, as above indicated.

It also appears from the evidence that appellant’s embankment constructed and maintained, without openings for the passage of water, has served to cut off from this valley some 15 acres of low lands, lying east of the embankment, which were formerly subject to overflow.

It appears quite clear from the evidence that appellee’s lands were always subject to overflow in times of floods and freshets; that such overflows frequently occurred from one to three times in each year, and often during crop periods. It is not pretended that on account of the embankment and artificial channels constructed by appellant that appellee’s land is more subject to overflow now than before the road was built. Nor do we find any evidence fairly indicating that the cutting off of the 15-acre tract of low land east of the right of way has to any appreciable extent increased the burden of flood waters naturally and formerly cast upon the premises of appellee. Neither do we find any evidence fairly tending to show that flood waters naturally coming upon appellee’s premises are obstructed and held thereon, or that a longer period is now required for the escape of flood waters, and the land thereby rendered wet and swampy. In fact, as wo understand the evidence and the theory of counsel for appellee, the' chief grievance now seems to be that appellant, by reason of the changes made by it in this valley, adjacent to appellee’s lands,, has so accelerated the flow of flood waters and has so changed the current of such flood waters as to wash away the soil from appellee’s lands to her damage. There is evidence tending to show some washes upon her lands which were not there before appellant’s road was constructed, but whether these washes were caused as a direct and proximate result of the construction of appellant’s embankment, and the artificial channels, or from the clearing up and cutting away of the timber and underbrush in the valley and along the banks of the stream, thereby accelerating the flow of flood waters, or merely from the vagaries of the water itself, there is little to show outside of conjecture and speculation on the part of the witnesses.

The evidence discloses that one of the principal washes complained of was located just south of the public road, between the railroad grades, and just east of the right of way of the C. & E. I. R. R. Appellant contends that this wash was occasioned by the water breaking over the embankment in the public road at this point, and contends that it was not responsible for this embankment, or for any damages which may have been occasioned thereby. Appellant introduced evidence which tended to show that this wash was occasioned as claimed by it, and in this connection requested the court to give to the jury its refused instruction No. 3. This instruction advised the 'jury, in substance, that if they believed from the evidence that plaintiff’s land had been washed and damaged by reason of water pouring over the levee built in the public highway, and that such levee was built by defendant under the direction and orders of the County Commissioners of Johnson county, that defendant would not be legally liable for any damages caused solely by such levee. This instruction was proper and should have been given, and we are of the opinion that its refusal constitutes reversible error.

This levee was no part of appellant’s line of railroad, and was not located on its property. It was located on and became a part of the public highway, and was no doubt designed as and intended to be1 an improvement to that part of the highway extending from the wagon bridge to the C. & E. I. R. R. grade. Its effect was to raise the grade of the beaten path of the road above the natural surface of the adjacent land, and thus secure for the public a better road through these bottom lands. The control of this road and its repair and improvement was vested in the county commissioners (J. & A. St. vol. 5, p. 5164, ft 9810). The lawful character of this levee, or the lawful right of the commissioners to make and maintain it, would not be affected .by the fact that its original construction or its future maintenance might or would occasion damages to an adjacent landowner. Nor would the fact that appellant constructed the levee in question, under arrangements made with the county commissioners, in connection with the removal and relocation of the wagon bridge, change the public character of this work. The acts done of appellant in this connection amounted to nothing more than a private donation of its services and material for what was undoubtedly regarded as a public benefit. The donation by appellant of its services for the purposes indicated was neither wrongful nor unlawful, and was not such as to render it liable in damages to one who may have sustained an injury occasioned either by the construction or from the maintenance of the levee. (Culbertson & Blair Packing & Provision Co. v. City of Chicago, 111 Ill. 651.)

We are of the opinion also that appellant’s second and fifth refused instructions should have been given to the jury. Both of these instructions stated correct principles of law applicable to the facts in this case. The second refused instruction stated, in substance, that where one purchases land in a bottom where there is a river or creek, such land is purchased with the risk of overflow, and that a railroad company cannot be made to pay for such overflow and washing simply because such company may have made a new channel for such creek or river on its right of way, if such channel conveys the wafer into the old channel before it leaves the right of way of the company, and such new channel affords equal or better means for the escape of water than the old channel, and brings no more water over plaintiff’s lands than would have flown thereon in a state of nature.

The fifth refused instruction stated, in substance, that a railroad company had a right to build its road through bottom lands, and the right also to change or divert the current of a creek or river on its right of way by making a new channel, and that no one under the law has a right to complain because of such changes, provided the new channel affords equal or better means for the escape of flood waters than the old channel, and provided also that it runs the water again into the old channel before it leaves the right of way; that if the jury find from the evidence that defendant changed and straightened the'channel of Cache Biver on its own right of way and diverted the water into a new channel which afforded equal or better means for the escape of water than the old channel, and that the new channel conveyed the water into the old channel before it left the right of way, then plaintiff would have no cause of action against defendant, on account of such change in the channel of the river.

Counsel for appellee concede that these instructions-state correct principles of law,- but contend that they are not applicable to the facts in this case. Under the statute, appellant had a right to construct its roadbed along or across any stream which it might intersect or touch. It wag required to restore the stream to its former state,—“or to such state as not unnecessarily to have impaired its usefulness.” It had no right under the statute to build its roadbed, without first constructing the necessary culverts or “sluices as the natural lay of the land requires for the drainage thereof.” [J. & A. St. ch. 114, sec. 19, j[8754 (5).] Under the statute, therefore, appellant was.not required to restore the stream to its former state, but only to such state as not unnecessarily to impair its usefulness. In constructing its roadbed, it might either build culverts or bridges for streams or water courses -or in lieu thereof might construct “sluices.” “-Sluices” are defined to be artificial channels for carrying water. Appellant, therefore, did not violate the statute in constructing its roadbed in the manner it did, if the “sluices” or artificial channels constructed by it did restore said stream to such state as not unnecessarily to have impaired its usefulness. Having elected to close this natural water course for its own convenience, it was its duty to make the new channels of sufficient capacity to carry the water then carried by the natural stream, and also all waters that may thereafter lawfully come to or be turned in to flow through such natural channel. (Atchison, T. & S. F. Ry. Co. v. Jones, 110 Ill. App. 626; Kankakee & S. R. Co. v. Horan, 131 Ill. 288.) This rule of law, however, would not cast upon appellant the duty of constructing an artificial channel of such capacity that it would carry within such channel, flood waters, which formerly, and in a state of nature could not be carried by the natural channel .of the river, and which flood waters were accustomed to spread over the entire valley. The weight of authority in this State is to the effect that “A proprietor of land may change the course of a natural water course within the limits of his own land, if he restores it to the original channel before the lands of another are reached, provided in changing the course of the stream he does not cast upon the lands of an adjoining proprietor water which would not in a course of nature flow upon such adjoining premises. ’ ’ (Daum v. Cooper, 208 Ill. 391; Fenton & Thompson R. Co. v. Adams, 221 Ill. 201; Wills v. Babb, 222 Ill. 95; 28 Am. & Eng. Encyc. of Law, 1st Ed. p. 982.)

The propositions of law announced in the second and fifth refused instructions were not covered by any of the given instructions in,the case. It was a matter material to appellant’s defense that the jury be advised as to its right under the law to divert the water of Cache Biver by means of these artificial channels, and to enable the jury to determine whether or not appellant was guilty of negligence in the construction and maintenance of its embankment adjacent to and through the bed of Cache Biver. The instructions referred to are in principle similar to the twelfth refused instruction, commented upon in the case of Voudrie v. Southern Ry. Co., 155 Ill. App. 279.

For the errors indicated in refusing instructions, the judgment of the Circuit Court is reversed and the cause remanded:

Reversed and rema/nded.

Mr. Justice Boggs took no part in the decision of this case.


text:
    James M. McManus, Appellee, v. Fred D. Nellis, Appellant.
    1. Judgment, § 238

      —when judgment nune pro tunc may he entered. Before a judgment nunc pro tunc can be entered, it must appear that a judgment in fact has been rendered but not entered of record through some fault, neglect or oversight.
    2. Judgment, § 170

      —when is not rendered or directed to he entered. Where a circuit judge in vacation directed the clerk of court to enter a certain judgment at the opening of the next session of the court, but before which time, however, such judge’s term of office expired, and no judgment was entered at the opening of the next session, but later another judge entered a judgment nunc pro tunc as of the date of the opening of that session, held that no.judgment was rendered or directed to be entered by said former judge, and that said entry nunc pro tunc was erroneous.
    3. Officers, § 70

      —when party entitled to office may recover fees and emoluments. Where one is elected to office and another without his consent deprives him of the office and collects its fees and emoluments, the party entitled to the office may recover such fees and emoluments.

      4. Officers, § 70

      —when coroner may not recover fees and emoluments received by person illegally appointed to fill vacancy in office of sheriff. Where the coroner of a county assumed the duties of sheriff upon removal of the sheriff by the Governor, and later procured the appointment by the hoard of county commissioners, believing it was their province to make such appointment, of another man as sheriff for the unexpired term, which exceeded one year, of the former sheriff, and said appointee of the hoard qualified, acted and collected fees as sheriff until on quo warranto it was determined that his appointment was unlawful, held that an action of assumpsit would not lie by said coroner against said appointee for said fees and salary paid him.
    Appeal from the Circuit Court of Alexander county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    Lansden & Lansden, for appellant.
    Reed Green, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

Appellee recovered judgment in the Circuit Court of Alexander county against appellant in an action of assumpsit for money had and received for the amount of $1,887.15, which it is sought to reverse by this appeal.

It appears from the record in this case that Frank ID. Davis was elected sheriff of Alexander county, Illinois, for the term of four years ending December 5, 1910, and that on November 18, 1909, he was removed from office by. the Governor of the State under a statute permitting such rule. It appears, however, that the Governor did not notify the Board of County Commissioners of Alexander county of such removal until December 14, 1909: That the appellee in 1908 was elected and qualified as coroner of Alexander county and upon the removal of Davis, appellee assumed the duties of sheriff, took possession of the office and otherwise discharged his duties as such sheriff, except that he gave no additional bond. It appears from the evidence that Alexander county was under county organization and its business was controlled by three judges. The appellee was a physician of quite an extensive practice in Cairo and did not have the time to attend to his practice and also the duties of sheriff of the county, and was apparently very anxious to.tie relieved of the burden of acting as sheriff. Upon the removal of Davis as sheriff, the county board conceded it to be its duty to appoint a successor and on December 22, 1909, appointed the appellant Nellis to the office of sheriff for the unexpired term of Davis. Nellis gave bond as sheriff and collector and on December 24, 1909, received from appellee, the coroner, the possession of the office, books, papers and records and all other property and things belonging to the sheriff’s office. It further appears that at the time that Nellis was appointed sheriff there were two other applicants and that the appellee was exceedingly anxious to have some one selected as sheriff to relieve him from the duties and burdens of the office. He appeared before the board and requested that the appointment be made so as to relieve him. He requested Judge Butler, judge of the Circuit Court, .to interview the county board and'urge upon them the necessity of making an appointment. Nellis continued to act as sheriff from the time of his appointment until December 5, 1910, and that the fees collected by him amounted to $1,887.15, and that the expenses of the office were covered by appropriations made by the county board. A quo warranto proceeding was instituted upon the relation of Davis against the appellant in the Circuit Court of Alexander county, and on July 22, 1910, it was determined by. said court that appellant was unlawfully appointed and judgment of ouster was entered. An appeal was taken to the Supreme Court where the judgment of the Circuit Court was affirmed [People ex rel. Davis v. Nellis, 249 Ill. 12], the Supreme Court holding that the vacancy in the office occurred on November 18, 1909, and that as it would be more than one year before the term of office expired, the county board would have no legal right to make the appointment of appellant as sheriff. On July 15, 1910, the appellee made a demand upon appellant for the office of sheriff then held by him and also notified him that he claimed the fees and salary of the office collected by appellant while acting as such sheriff. This case was heard by Judge Hadley, taken under advisement by him at the October term, 1914, of the Alexander County Circuit Court and nothing was done in the case at the February term, 1915. The May term of the court convened on May 10th and it was on that day adjourned until June 21st. On May 14th, Judge Hadley sent to the clerk of the Circuit Court the following communication:

“Edwardsville, Ill., May 14, 1915.

Dear Sir :—On the first day that your Circuit Court is in session I wish you would enter for me in the case of McManus vs. Nellis, the following order: And now on this day the court being fully advised in the premises, finds the issues for the plaintiff in the sum of $1,887.15, and judgment on the finding of the court for plaintiff vs. defendant for $1,887.15 and costs. And the defendant excepts and prays an appeal to the Appellate Court of the Fourth District of Illinois, which is allowed upon filing appeal bond in the sum of $2,500.00 within thirty days, to be approved by the clerk of this court, and bill of exceptions within forty days. I also inclose the propositions of law submitted by the defendant which you will mark filed as of the date you entered the order. Please advise the parties to this suit as to the decision of the court that they may know of it and that they may take such further proceeding’s as either of them may elect.

With kindest regards, I am,

Very truly yours,

W. E. Hadley,

Clerk of the Circuit Court,

Cairo.”

No attempt was made to have any order entered on June 21st, but the court was again adjourned until June 29th when appellee presented an application for the entry of a judgment against appellant nunc pro tunc, as of June 21, 1915, upon the basis of the letter mailed by Judge Hadley to the clerk. The matter was continued until July 6th; at this date the application for a judgment nunc pro tunc as of June 21st was allowed. The term of office of Judge Hadley expired prior to June 21, 1915.

A reversal of this case is insisted upon principally upon two questions: 1st. That the court erred in rendering judgment nunc pro tunc as of June 21, 1915. The validity of this order depends upon whether or not a judgment had in fact been rendered by Judge Hadley during his term of office. If such judgment had been rendered and the clerk had failed to enter it as directed, then we think that the court would have been justified in requiring the clerk to carry out the order that was in fact entered; and such action is approved by the Supreme Court in the case of Metzger v. Morley, 197 Ill. 208, and this case is cited by counsel as being on parallel with the case at bar and decisive of the right of Judge Hartwell on July 6th to direct the entry of a judgment nunc pro tunc of June 21st.

Excepting the rendering of judgments by confession and agreement, there are two modes of rendering judgment recognized by our courts: One is to pronounce judgment in open court, which it then becomes the duty of the clerk to enter upon the records. Another mode is the one provided by statute where a judge takes a case under advisement, and his decision in vacation may be entered of record in vacation. And Judge Hadley had the right to send this order and direct that it be entered in vacation if he -chose so to do, and it was certainly discretionary with him whether he would enter it in vacation or in term time, and, as we think, the real question is, when did he enter the judgment, and when did he intend that the clerk should make it a matter of record, in vacation or in open court? The language of the communication addressed by Judge Hadley to the clerk is: “On the first day that your Circuit Court is in session I wish you would enter for me in the case of McMwius v. Nellis the following order.” Of course, it was expected by Judge Hadley at that time that -the court would be in session during his term of office, but, as it happened, his term of office expired before there was any session of court after the clerk received this communication. It is said by counsel that the mere fact of the judge having arrived at a conclusion and having placed that in the hands of the clerk would be sufficient to constitute a filing of the order, although no file mark had been placed upon it. This would probably be true if there had been a direction to enter it, but later on in the communication he states: “I also inclose the propositions of law submitted by the defendant which you will mark filed as of the date you entered the order.” Which shows clearly that it was not in the mind of Judge Hadley to enter an order of judgment in vacation but that the judgment order should bé entered in term time; and before the day arrived at which the clerk could in any manner make an entry of this order or judgment, Judge Hadley’s term of office had expired, and we do not see how it could be said that any valid judgment was entered or directed to be entered by the judge, and if this is true then the Circuit Court erred in directing a judgment nunc pro tunc. Before a judgment could be entered nunc pro tunc it must appear that one in fact had been rendered but not entered of record through some fault, neglect or oversight. Chicago, B. & Q. R. R. Co. v. Wingler, 165 Ill. 634.

It is also insisted that even if the judgment was properly rendered that the court erred in requiring appellant to pay the fees and the salary collected by him to appellee.

The declaration in this case consists of two counts: One is a special count charging that the appellant over the protests of appellee wrongfully and without legal authority took possession of the office of sheriff of Alexander county. The second is the consolidated common counts, including a count for money had and received. The appellee claims the right to recover under this declaration because appellant has money that in justice and equity belongs to the appellee. We agree with the contention of counsel for appellee that the doctrine is well settled in this State that where one is elected to an office and another without his consent deprives him of that office and collects the fees and emoluments of the office, that under such state of facts the party entitled to the office could sue the party depriving him thereof and recover the fees and salary collected, and this doctrine seems to be well sustained by the case of Mayfield v. Moore, 53 Ill. 428; Waterman v. Chicago & I. R. Co., 139 Ill. 658. If the appellant had unlawfully without the consent of the appellee deprived appellee of this office, then we would not hesitate to say that he was entitled to the fees and emoluments thereof.

It appears from this record that the appellee was a physician of an extensive practice and did not' have the time to attend to the business of the sheriff and his practice, and that he was exceedingly anxious to unload the burdens of the office of sheriff to some one who could discharge the duties so that he could have the time to devote to his business as a physician. It also appears that it was the impression of the county board and of others interested that the county board had a right to appoint a sheriff to fill this vacancy, and it seems that appellee was of the same mind, as appellee appeared before the county board and said that he wanted to get rid of the sheriff’s office so that he could give his attention to Ms professional business, that he was losing money fooling with the sheriff’s office and wanted the county board to appoint a man in his place; and this is substantially the testimony of all three of the county judges. Appellee also called upon Judge Butler and requested him to urge upon the board the necessity of making an appointment soon, and that Judge Butler replied: “I have nothing to do with that but I understand they have offered the place to Charles Cunningham and Charles Carey and that they had declined and that Fred Nellis was the only applicant; that the Board had virtually agreed to give bim the appointment and they were only awaiting the opinion of the Attorney General as to whether they could legally make the appointment. ’ ’ The doctor replied, “I wish they would hurry up about it. I didn’t expect to be kept here this long. It is interfering with my business and I am losing money every day.” He further said, “You would do me a favor if you would go to the Board and hurry up the appointment. I am losing money.”

It is true, as contended by counsel, that if the money justly and eqMtably belongs to appellee that he should be entitled to recover under this action, but our courts have said: “In an action of assumpsit for money had and received, the main inquiry is, whether the defendant holds money which ex cequo et bono belongs to the plaintiff. It has been frequently called an equitable action, and, as is said in Claflin v. Godfrey, 21 Pick. [Mass.] 1, it approaches nearer to a bill in equity than any other common-law action.” Belden v. Perkins, 78 Ill. 449; First Nat. Bank of Springfield v. Gatton, 172 Ill. 627. “This being an action to recover for money had and received by the defendant to the plaintiff’s nse, it devolved on the plaintiff to prove that the defendant held money which ex aequo et bono he ought to pay to the plaintiff, the usual test being, does the money in justice belong to the plaintiff.” Richolson v. Moloney, 195 Ill. 578.

Appellee was pleased when the appointment of appellant was made; he did all he could to bring about the appointment; he surrendered the office and the work and the emoluments to the appellant without any protest, and now, "after appellant had performed the labor, can it be said that the earnings accruing from this labor equitably and justly belong to the appellee, who sought by every available means to get rid of this burden and was willing that appellant or any one else that the county board would sanction should take up and perform the work? It further appears that no complaint of any kind was made by appellee about appellant holding this office until July 15, 1910, and after an order had been entered by the court, in effect, holding that appellee was not entitled to hold the office; and the judgment rendered herein covers the fees earned during the period prior to as well as after this demand was made, but it is very clear to us that he was not entitled to the fees earned after he had surrendered the office willingly and without protest to appellee, and before the making of such demand.

For the reasons above indicated, we are of the opinion that the Circuit Court erred in rendering this judgment against appellant for the fees earned by him during the term that he held the office of sheriff under such appointment, and the judgment of the lower court is reversed and the cause remanded.

jReversed and remanded.


text:
    H. H. King, Appellee, v. Daniel W. Heilig and E. M. Rife, Appellants.
    (Not to Tbe reported in full.)
    Abstract of the Decision.
    1. Bnxs and notes, § 293

      —when payment to payee before maturity of note does not operate as discharge from liability. Payment by the payor to the payee of a note which was then in the hands of another, who obtained same from the payee before its maturity as collateral security, does not operate as a discharge from liability as it was the duty of the payor to see that his payment was made to the proper holder of the note.
    Appeal from the Circuit Court of Pulaski county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by H. H. King, plaintiff, against Daniel W. Heilig and E. M. Rife, defendants, on a promissory note of which defendants were makers and one Farrin the payee, and which was indorsed to plaintiff, before maturity as collateral security.
    From a judgment for $1,055.88 after trial had upon opening a judgment by confession for $945.04 and costs, defendant Heilig appeals.
    Charles L. Rice and Fred Hood, for appellant Daniel W. Heilig.
    C. S. Miller and Wall & Martin, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

2. Tkial, § 129 —what constitutes improper remark by counsel in opening statement. A remark by an attorney in Ms opening statement to the jury that when they had heard the evidence he was sure they could only arrive at the same verdict as a former jury was improper.

3. Pleading, § 115 —admissibility of affidavits and pleadings. It is not error to admit in evidence a party’s affidavits and pleadings, as they are but statements and declarations of the party, and if inconsistent with the evidence offered on the trial the jury were entitled to hear them and consider them with the other testimony.

4. Bills and notes, § 462 —when failure of instruction to explain term is not error. The term “bona fide holder” is so commonly used that the jury could not be misled by the failure of an instruction to explain its meaning.

5. Bills and notes, § 462 —when instruction not setting out that holder acquired note for value before maturity is not erroneous. Where neither the evidence nor the pleadings presented an issue that a note was held as security for the payment of an indebtedness after its maturity, there was no error in giving an instruction which did not. set out that the holder acquired the note for value before maturity, but if such note was held to secure future advancements, it should cover same.

6. Judgment, § 87 —what is proper form of when verdict for plaintiff after trial upon opening up judgment of confession. Where a judgment by confession is opened up, such judgment to stand as security, and trial is had resulting in verdict and judgment for plaintiff, the form of such judgment should be to confirm the judgment taken on confession, and a judgment rendered upon a verdict assessing a greater amount of damages is. erroneous.

7. Appeal and error, § 1807 —when case reversed and remanded with directions. Where, upon verdict being rendered for plaintiff after opening up of a judgment by confession and trial a judgment is erroneously entered for more than the amount of the judgment on confession, the case should be reversed and remanded with directions to correct the error.


text:
    F. E. Nulsen, Defendant in Error, v. Terre Haute Brewing Company, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Principal and agent, § 102

      —when duty lies on third person to make inquiry and ascertain real authority of agent. A person who has notice of such facts as to put him on inquiry as to the authority of an agent to make a lease acts at his peril in accepting a lease from such agent without making inquiry and ascertaining the agent’s real authority, notwithstanding such agent may have apparent authority, and it is his right and duty to make such inquiry.
    2. Appeal and error, § 1241

      —when party may not complain of erroneous instruction. A party may not complain of an instruction which sets forth a correct principle of law as misleading where he himself procures an instruction on the same subject.
    3. Instructions, § 151

      —when refusal of is not error. It is not error to refuse • requested instructions which are covered by other given instructions.
    4. Instructions, § 63

      —when instruction is not erroneous as assuming controverted facts. An instruction is not erroneous as assuming controverted facts where, when considered with other instructions, such impression is not given.
    Error to the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by F. E. Nulsen, plaintiff, against Terre Haute Brewing Company, defendant, for rent. From a judgment in favor of plaintiff for $780, defendant brings error.
    Keefe & Sullivan, for plaintiff in error.
    Kramer, Kramer & Campbell, for defendant in error.

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

   Mr. Justice McBride

delivered the opinion of the court.


text:
    David E. Parker, Appellant, v. John Dietz, Appellee.
    1. Bailment, § 10

      —what is duty of bailee as to insuring goods for owner’s benefit. There is no legal duty devolving on a bailee, even for accommodation, to insure the chattels for the owner’s benefit unless there is a contract or custom requiring it.
    2. Bailment—when negligence of bailee is question for court. The failure of a bailee to insure the chattels does not present a question of negligence for the determination of a jury, but one of law for the court.
    3. Bailment, § 10

      —-what diligence wmst be exercised by bailee for accommodation in caring for property. A bailee for accommodation is bound to use extraordinary diligence in caring for the property, but is not liable for an accidental loss.
    Appeal from the Circuit Court of White county; the Hon. Julius C. Keen, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed.
    Opinion filed November 13, 1916.
    Noah C. Bainum, for appellant.
    Francis M. Parish, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

Appellee recovered a judgment in the court below for $325 and costs, which appellant seeks to reverse by this appeal.

It appears from the record in this case that the appellee was the owner of one Mercury Arc Bectifier, one glass globe with mercury, two lenses, one large lamp and two condensers, for a standard model picture machine, also one reel of pictures. That on or about the 3rd or 4th of April, 1915, the appellant was engaged in conducting a vaudeville and picture show and needed the apparatus owned by appellee for the purpose of conducting his .show; that he offered to purchase the above-described articles from appellee but appellee refused to sell them to him but told appellant he would loan them to him, and did malee the loan, and on about the day last aforesaid, appellant took the apparatus from appellee’s place of business to appellant’s place of business and used it in connection with his vaudeville and picture show. It appears that on Thursday after he had borrowed it on Monday he had some trouble with the rectifier and appellee went up to appellant’s building and worked upon it. It further appears from the evidence that shortly thereafter appellant had his building insured but did not take out insurance upon the apparatus borrowed from appellee. About the 10th of May, 1915, the building and contents, including the apparatus of appellee, was destroyed by fire. Prior to the commencement of this suit, appellee demanded payment of appellant, which was refused. The fire was not caused by any negli-. gence of appellant but was unavoidable. The case was tried by a jury and verdict and judgment rendered for appellee for $325.

The declaration in this case, after alleging that the appellant borrowed the aforesaid apparatus of appellee, then avers that it then and there became the duty of the defendant to procure insurance on said goods and chattels for the protection of the plaintiff, but that the defendant negligently failed and refused to procure such insurance, and that such goods and chattels were wholly destroyed by fire and that the plaintiff, owing to the negligence of the defendant, was thereby injured in his property. To this the defendant filed a plea of general issue.

There is no dispute as to the facts in this case. It appears from the evidence that the appellee loaned appellant the apparatus in question to be used by appellant in operating his picture show. That appellee knew where the apparatus was being kept and used; that there was no evidence of any contract for insurance, or of any custom with reference to insurance. The declaration charges that it was the duty of appellant to insure the property and that he neglected to do so and the loss resulted. The only claim of neglect, as shown hy the evidence, was the failure upon the part of appellant to insure the property.

As we view the record in this case, its decision depends upon the determination of the question as to whether or not it was the duty of appellant under the law to insure the property, and we think this is purely a question of law. If such a duty devolved upon the appellant then he is liable. If he was not required by law to insure the property then no liability could attach. At the close of the evidence the appellant asked the court to give an instruction directing the jury to find a verdict for the defendant, which the court refused, and its refusal is assigned for error. As we view it, the whole case can be determined upon this assignment of error.

The relation sustained by appellant to appellee was that of a bailee for appellant’s accommodation, and when he borrowed appellee’s property he was bound to use extraordinary diligence in caring for the borrowed chattels. The question here submitted, however, is not one of care and diligónce with reference to the preservation of the property borrowed but is one as to whether or not he should have taken the precaution to insure the property so that appellee could be reimbursed in case of loss, and we are of the opinion that this is a different proposition from that laid down in the textbooks requiring the greatest care and diligence as to the preservation of the particular property. It was his duty to use the utmost care and diligence to preserve the partieulár property that he had borrowed, and if he failed or neglected to do any act that he could have done for the preservation of the property, then he would be liable for such neglect and the liability is based upon his negligence in this respect. We have not been able to find any authorities involving the exact question presented here nor has counsel cited us to any, and the case must be largely determined from the principles laid down in the elementary works. As we understand the law there is no duty devolving upon the borrower of a chattel even for accommodation to insure such chattel for the benefit of the owner, unless there is a contract so to do or a custom existing that required it, and no such has been proven in this case. So far as this record discloses, the fire was accidental and without the fault of appellant and we think the loss must be classed as an accidental loss. “In no case is the borrower obliged for any accident as death, naufrage, burning, unless he has undertaken that hazard either expressly or tacitly.” Story on Bailments (8th Ed.), sec. 253 c. “Under a gratuitous loan for use, the benefit being all on one side, the borrower is bound to use extraordinary diligence in preserving the borrowed chattels. He is bound to exercise all the care and diligence which the most careful and vigilant men employ in their own affairs, and he is responsible for even slight negligence, whereby the property is lost or injured. The omission of the most exact and scrupulous caution, or any want of prudence, is regarded as a culpable neglect in the borrower. "The borrower does not insure the safety of the goods and he is not liable for them where he keeps and uses them with due care and in the manner permitted by the terms of the loan; he is not liable where the chattel dies, or is stolen, or is destroyed by fire, without any negligence on his part. The risk of losses like these abides with the owner unless the bailee has failed in his duty to anticipate and guard against the danger.” Edwards on Bailments, sec. 135.

The evidence in this case shows that appellee knew the purpose for which the property was to be used, and where used, and in fact visited the property and worked upon it while in appellant’s building, and if he did not care to assume the risk he should have required appellant by contract to have insured the property but this he failed to do. “Where the bailor knows the general character and habits of the bailee and the place where or manner in which the goods deposited are to be kept by him, the bailor * * * must be presumed to assent in advance that his goods shall be thus treated.” Dobie on Bailments & Carriers, page 69. “And if a thing be injured or destroyed through inevitable accident or vis major, or by reason of fire, the fall of a building or other like casualty, * * * the loss will not fall upon the bailee unless he appears to have been to blame in the matter.” Schouler on Bailments, sec. 74. And the same doctrine is laid down in Vanzile on Bailments, sec. 107. “If a person lend an article to another, the bailee is bound to take such care of it as a very careful and vigilant man would exercise in regard to his own property, and if it is injured without any negligence or fault on his account, he is not legally liable to the owner. Jones on Bailments, sec. 75;” Harringtons Beports, vol. 2, page 67 (Delaware).

We are satisfied from an examination of these authorities and others that we have examined that the law dqeiynot impose upon the bailee the duty of insuring property borrowed, unless there is a contract or custom existing to that effect. It is contended by counsel for appellee that there is a presumption of negligence, and for that reason the judgment should be affirmed. Where it appears, as it does in this case, that the only act of negligence charged or claimed by the evidence to exist is an act that the law does not impose upon the bailee, then no such presumption could arise. It is also contended by counsel for appellee that the question of negligence is a question of fact for the determination of the jury, and cites in support of this doctrine the ease of Gray v. Merriam, 148 Ill. 179. The doctrine here invoked is not applicable in this case for the reason that the act complained of is not as to whether the appellant was negligent or not but the act upon which a recovery is sought was whether or not appellant was required to do a particular thing towards the property borrowed, to wit, to insure the same, and if he was not required in law to insure the property then it could not become a question of fact for the determination of the jury. We are of the opinion that the law did not impose upon the appellant the duty of having the property insured, and that as this was the only act of negligence complained of, there could be no liability for the accidental loss of the property.

The court erred in refusing to direct a verdict for the defendant, and the judgment of the lower court is reversed.

Judgment reversed.


text:
    Jim Volin, Appellee, v. St. Louis & O’Fallon Coal Company, Appellant.
    (Hot to Tbe reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1411

      —when verdict on conflicting evidence will not be disturbed. In an action by a mine employee for damages for personal injuries, held that the finding of the jury that certain props required for the support of a roof in a mine were not furnished should not be disturbed, where the evidence was sharply conflicting, if not against the manifest weight of evidence.
    2. Damage's, § 120

      —when verdict for personal injuries not excessive'. Where, in an action for damages for injuries to a workman, the evidence showed four fingers of his left hand were so fractured that he could only close that hand halfway and could not hold anything tight and that his left hip was permanently fractured, and that he lost two months from work, held a verdict for $1,100 was not excessive.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.

      Certiorari denied by Supreme Court (making, opinion final).
    Statement of the Case.
    Action by Jim Volin, plaintiff, against St. Louis & O’Fallon Coal Company, defendant, to recover damages for personal injuries received while working as a miner in defendant’s coal mine. From a judgment for plaintiff for $1,100 and costs, defendant appeals.
    Barthel, Farmer & Klingel, for appellant.
    Schaefer & Kruger and T. B. Mould, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

3. Workmen’s Compensation Act—when certificate as to filed notice of employer’s election not to come under is sufficient. A certificate by the secretary of the Industrial Board as to a notice filed with said board of an employer’s election under the Workmen’s Compensation Act, which describes said secretary as custodian and keeper of the files, records and documents of said board but does not specifically state he was custodian and keeper thereof, is a sufficient comnliance with section 16, ch. 51 of the Statutes (J. & A. If 5533), requiring a statement in any such certificate that the officer is the keeper of such files, etc.

4. Evidence, § 125 —when witness may testify as to contents of posted notice. A witness is not prohibited from testifying as to the contents of a notice that has been posted, especially where it has become dimmed and destroyed.


text:
    Clemeth January, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of St. Clair county; the Hon. Geobqe A. Crow, 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 Clemeth January, plaintiff, against Metropolitan Life Insurance Company, defendant, to recover on a life insurance policy. From a judgment for plaintiff for $179.31 and costs, defendant appeals.
    W. P. Launtz, for appellant.
    Alexander Flannigan, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

Abstract of the Decision.

Appeal and error, § 1787 —when judgment reversed pro forma. A judgment will he reversed pro forma under Rule 27 of the Appellate Court where the appellee fails to file any brief.


text:
    Mattie Anderson, Administratrix, Appellee, v. Hiram Chittick, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1105

      —what are not grounds for dismissal of appeal. An appeal will not be dismissed because it was permitted by a different judge than the one who rendered the decree.
    2. Mortgages, § 2%%

      -r-what constitutes sufficient consideration for release of. Where the purchaser of land under a warranty deed was compelled to pay out money to perfect his title, held that such payments by him were sufficient consideration for a release of a mortgage given by him to secure part of the purchase money for said land.

      Appeal from the Circuit Court of Pulaski county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and demanded.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Suit by Mattie Anderson, administratrix of the estate of Martha Tapley, deceased, complainant, against Hiram Chittick, defendant, to foreclose a mortgage. From a decree for complainant, defendant appeals.
    C. S. Miller, for appellant.
    Fred Hood, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

3. Mortgages, § 270 —what is effect of release on right of foreclosure. Where a purchaser of land under a warranty deed gave a mortgage for part of the purchase money and was forced thereafter to pay out money to the extent of such mortgage in perfecting his title to the land, and obtained from the mortgagee a valid release of such mortgage, held such mortgagee, was not warranted in obtaining a foreclosure and sale to satisfy such mortgage.

4. Appeal and error, § 913 —what is effect of certificate of reporter that record contains all the evidence. The certificate of a court reporter that the record contains all the evidence in the case is not sufficient to make the testimony of witnesses a part of the record, but when same is followed by a regular certificate and signature of the judge, the fact of such reporter’s certificate does not destroy the validity of the judge’s certificate.


text:
    Iva Dallas, Appellee, v. East St. Louis & Suburban Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    Rehearing denied January 13, 1917.
    Statement of the Case.
    Action by Iva Dallas, plaintiff, against East St. Louis & Suburban Railway Company, defendant, to recover for personal injuries received by falling off one of defendant’s cars. From a judgment for plaintiff for $8,000, defendant appeals. For the case on a former appeal, see 188 Ill. App. 420.

      Abstract of the Decision.
    Carriers, § 476

      —when evidence is insufficient to sustain recovery for injuries resulting from sudden jerk of ear. In an action against a street car company for damages for injuries sustained by plaintiff in leaving its car, where the plaintiff stood practically alone in her testimony that the car after slowing down started up suddenly and gave a jerk which threw her off, and the evidence for the defendant greatly preponderated in showing that the car did not stop with a sudden jerk and that plaintiff did not stop in the vestibule of the car hut walked straight out and attempted to get off while the car was in motion, held that a verdict for the plaintiff was manifestly against the weight of the evidence.
    Williamson, Burroughs & Ryder, for appellant.
    Geers & Geers, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.


text:
    Denison-Gholson Dry Goods Company v. Max Inger et al. R. E. Hickman, Trustee, Appellant, v. R. F. Martin, Interpleader Claimant, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Franklin county; the Hon. J. C. Eagletoh, Judge; presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action in attachment by Denison-Gholson Dry Goods Company, plaintiff, against Max Inger and others, defendants, E. F. Martin interpleading and claiming the property. From a judgment awarding the property to the interpleader claimant, B. E. Hickman, trustee in bankruptcy of Max Inger, who was allowed, upon petition, to appear as party defendant, appeals.
    Abstract of the Decision.
    Appeal and error, § 1303

      —when evidence presumed to warrant judgment. A bill of exceptions must be signed by the trial judge and the certificate show that it contains all the evidence, otherwise the evidence is presumed to warrant the judgment.
    W. W. Skaggs and Joseph H. Barnhart, for appellant.
    Walter W. Williams, for appellee.

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

   Mr. Justice McBride

delivered the opinion of . the court.